Separate & Equal?

Issue: Can Black families live a life of dignity separate from institutional racism?

Rules to Understand:

Þ Supremacy Clause: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. 6.

Þ Police Powers: "[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power." Berman v. Parker, 348 U.S. 26 (1954).

Analysis:

Families based in the United States seeking a life separate from the intrinsically racist state have two major legal barriers: 1) The government's constitutional authority to enact laws over it’s people; and 2) the delegation of police powers assigned to the state.

1. The Constitutional Authority to Enact Laws over Families.

Article 6 of the United States Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. 6, cl.

This clause, also known as the Supremacy Clause, applies to all persons residing in the United States who are thereby subject to the laws of the national government. The Founders of the nation struck a balance by granting the national government limited and enumerated powers, while states were granted the power to regulate intrastate affairs. This scheme, known as federalism, is expressed in Article I of the Constitution which grants Congress “All legislative powers herein granted,” while the Tenth Amendment reserves for states “powers not delegated to the United States by the Constitution, nor prohibited by it to the states.”[1] States are responsible for determining their own local schemes on how state power is delegated internally.

The takeaway is, all families are subject to the laws of the national, state and local governments. While this reality is far from surprising, it is a feature of the governing structure that is necessary to weigh when seeking a life with minimal to no governmental incursions. All Afrikan parents should identify and evaluate the major areas where systemic racism interferes with their familial livelihood, whether these interferences are avoidable and whether there is a means by which such interactions could be limited, or even eliminated.

For example, for a family that is subjected to minimal or low-quality food sources[2] because of their zip code, if that family deems the ability to grow their food as essential to their familial health and integrity, laws on land use are an inevitable barrier to achieving that goal. That family seeking food self-sufficiency will thus need familiarity with their local zoning ordinances and restrictions to evaluate whether their desired lifestyle is possible where they are domiciled. Depending on their location, food self-sufficiency may be 100% obtainable, or not obtainable at all.

2. The State's Police Power Over Families.

As mentioned above, the 10th Amendment of the Constitution reserves to states all powers not delegated to the national government. Encompassed in this authority is what is known as Police Powers. According to the Supreme Court case Berman v. Parker "[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power." Thus, if a state chooses, it has the power to play a significant role in the everyday interactions of those within its borders in the realm of health, education and public safety. The level of interference is determined by state culture and local attitudes toward government intervention in the affairs of individuals and families. Understanding your state and local governments' culture is thus paramount to reaching a determination on whether this locality will permit you the freedom to live separately from the system.

One essential doctrine, recognized by the Supreme Court, for parents to understand is parens patraie (parent of the nation). Under this doctrine, the federal and state governments of the United States have the power to regulate families when it's deemed to be in the public interest. Parens patriae gives the state authority to intervene in the interest and welfare of the public in cases about the well-being of children, most commonly in matters of abuse and neglect.[3] This doctrine heavily comes into play in the realm of police powers, as the institutions most likely to refer families to child abuse and neglect services are those where state actors are present. For example, schools, hospitals and police departments are all notorious for referring families to child welfare agencies when they suspect the child to be a victim of abuse or neglect. In fact, state actors are often mandated to make such reports by law. The takeaway here is, living in a location where minimal interactions with government agencies are required leads to a lower likelihood of being referred to a local child protection agency.

Conclusion:

Choose where you live WISELY.

The sad fact is, for many locations in the United States institutional racism is inescapable as you are given little choice but to interact with governing authorities. This seems to be the case more so in metropolitan areas where governmental control of individual families is pervasive. Afrikan families seeking independence from the state may thus choose to opt out of the urban lifestyle for a country living alternative.

Ironically, despite the legacy of the South as the harshest when it comes to racism and inequality, a Black family seeking a separate existence from the domineering society has more of an opportunity to do so in southern locations where state regulations of families are miniscule. It is worth emphasizing, however, that this type of lifestyle is not for the faint of heart. Essentially, one would need to live a life with zero dependence on the state for things others deem necessities.

The South is not the only, or even the best option. Repatriation seems to consistently present the most potential for families seeking to live separately and apart from American and Western society. It should be noted, however, that institutional White supremacy is global and the continent of Afrika suffers collectively from imperialism and neocolonialism. However, what cannot be denied is Afrika offers an opportunity for minimal interactions with the state if desired, and thus minimal incursions on familial autonomy. Due to the minuscule public accommodations, education, healthcare and lifestyles are far more autonomous.

With all these options, parents are encouraged to work collectively. We as Afrikan people are communal by nature and have always reached our maximal capacity when doing so in a cooperative fashion. Living apart from the state carries its own risks and vulnerabilities. Whenever possible, it is strongly encouraged to build connection and community with similarly minded people.

[1] U.S. Const. art.1 § 1; U.S. Const. Amend. 10; Article I, Sec. 8: Federalism and the Overall Scope of Federal Power, https://constitutioncenter.org/the-constitution/articles/article-i/section/8712

[2] Now popularly called a "Food Desert."

[3] Tierney Peprah, Fostering False Identity, Independently Published, 2021, 5.