"We're made of star stuff. We are a way for the cosmos to know itself." The words of Carl Sagan in his series "Cosmos" may not have any relevance to the study of law let alone human rights, but it does have a specific relevance to our existence. No matter our claimed ethnicity, nationality, religion, or political ideology, we are the heirs of start that went supernova four billion years ago that set our sun alight and jump-started the accretion of material that formed this planet. Indeed, while we all carry the traits of our parents, we also carry in our bodies the history of the universe and our species. When dwelling upon these ponderous topics, it seems senseless that human beings engage in visiting brutality and depredations upon others.
Why is it that humans whose melanin had been reduced because of the climate in the northern hemispheres feel it was legitimate to enslave our genetic brothers and sisters in Africa? Why is it that humans residing in Europe who are made up of the same 46 chromosomes at the genetic level feel compelled to describe another group as subhuman and worthy of a cold and systematic extermination?
There is no legitimate reason.
Yet, in our recent history, humans have engaged in wholesale genocide of their fellow humans based on what could be best described as arbitrary reasons without legitimate basis. Sitting in Professor Gaffney's Empty Boxcars viewing tonight at the law school caused me to ponder on this topic. How can I reconcile the study of law when it was legislation drafted by the German government that set the groundwork for the horror of the Shoah? The Nuremberg Purity Laws of 1935 outlined who was Jewish and in the same breath, removed their civil rights. Citizenship was stripped away, property rights eliminated, and the ability to hold a trade revoked.
In the American experience, one has to consider the slave-fugitive laws, and The Antelope and Dred Scott decisions. Where the law protected the enslavement of Africans; namely that Africans were chattel property. Chattel property as in the pen you use in class, the computer where you compose your outlines, and the car you drive to class. That was the definition of a living, breathing human being according to the law, only because they or their ancestors lived on the African continent. It was defending the right to keep this chattel that lead to the bloodiest war in American history. Indeed, the Confederate flag is about heritage; the heritage to protect the right of the states to keep humans in lifelong enslavement, defined as chattel no different than the shovel or a hammer.
Yet, in the two examples above, the law was used to support and uphold these actions by other human beings. In Nazi Germany, an army of lawyers was utilized by the Third Reich to plan and execute the Shoah. Lawyers and legislators drafted and passed laws that eliminated the civil rights of Jews not only in Germany, but as Professor Gaffney's Empty Boxcars illustrates, in Bulgaria. It was through the collaboration of the legal profession that the Nazi war against the Jews was executed. In our American context, lawyers represented slaveholders in suits to recover their "chattel." American jurists supported that "particular institution" in their opinions.
The realization that the law can be used for heinous purposes should cause students and practitioners of the law to sit up and take notice. We should take note of both those who cooperated with and alternatively resisted the creation and implementation of laws that eliminate civil rights or that define humans merely as chattel. Their actions provide important lessons: how the law can be co-opted for evil purposes, and how use of the law can overcome those insidious uses. Just as we should be aware that we are all homo sapiens, heirs to billions of years of cosmological history, we should use this knowledge to apply the law in means to protect and not harm our fellow persons.