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Abstract

excerpted from: A. Leon Higginbotham, Jr., The Ten Precepts of American Slavery Jurisprudence: Chief Justice Roger Taney's Defense and Justice Thurgood Marshall's Condemnation of the Precept of Black Inferiority, 17 Cardozo Law Review 1695 (May, 1996) (49 Footnotes) (Full Document).

 

A leon higginbotham jrOver the last two decades I have tried to determine whether I could categorize a list of premises or precepts that, taken together, could explain the whole institution of colonial and antebellum slavery and the race relations law of that era. Ultimately, I concluded that for those Americans in power, there were several basic premises, goals, and implicit agreements concerning the institution of slavery that at once defined the nature of American slavery and directed how it should be administered. Sometimes, these premises and goals were articulated precisely in statutes, judicial opinions, and executive orders. At other times, it appears that there was an implicit agreement on these principles. But, whether or not articulated as formal rules of law, I have identified a general consensus concerning principles or premises that led to the legitimization and perpetuation of slavery and of racism in America during the colonial and antebellum periods.

Slaveholders, legislators, judges, and other public officials displayed a common understanding on the issues of race and slavery that catered to their shared economic interests and political views. This common understanding created a simple “universality of the rules.” Once established, these rules formed the logical and precedential foundation for the American slavery culture for more than two hundred years. It is the breakdown of those components making up this “universality of the rules” that I call the Ten Precepts of American Slavery Jurisprudence. As we shall see, even after the abolition of slavery, some aspects of those precepts, pertaining to the alleged inferiority of blacks and the desire to make blacks powerless, still continue to haunt America . . .

 

 1 Inferiority:   Presume, preserve, protect, and defend the ideal of the superiority of whites and the inferiority of blacks.
 Property  Define the slave as the master's property, maximize the master's economic interest, disregard the humanity of the slave except when it serves the master's interest, and deny slaves the fruits of their labor.
 Powerlessness  Keep blacks--whether slave or free--as powerless as possible so that they will be submissive and dependent in every respect, not only to the master, but to whites in general. Limit blacks' accessibility to the courts and subject blacks to an inferior system of justice with lesser rights and protections and greater punishments than for whites. Utilize violence and the powers of government to assure the submissiveness of blacks.
 Racial “Purity”   Always preserve white male sexual dominance. Draw an arbitrary racial line and preserve white racial purity as thus defined. Tolerate sexual relations between white men and black women; punish severely sexual relations between white women and nonwhite men. With respect to children who are products of interracial sexual relations, the freedom or enslavement of the black child is determined by the status of the mother.
 Manumission and Free Blacks  Limit and discourage manumission in order to minimize the number of free blacks in the state. Confine free blacks to a status as close as possible to slavery.
 Family Recognize no rights of the black family; destroy the unity of the black family; deny slaves the right of marriage; demean and degrade black women, black men, black parents, and black children; and then condemn them for their conduct and state of mind.
 Education and Culture:   Deny blacks any education, deny them knowledge of their culture, and make it a crime to teach those who are slaves how to read or to write.
 Religion:  Recognize no rights of slaves to define and practice their own religion, to choose their own religious leaders, or to worship with other blacks. Encourage them to adopt the religion of the white master and teach them that God is white and will reward the slave who obeys the commands of his master here on earth. Use religion to justify the slave's status on earth.
9 Liberty-Resistance  Limit blacks' opportunity to resist, bear arms, rebel, or flee; curtail their freedom of movement, freedom of association, and freedom of expression. Deny blacks the right to vote and to participate in government.
10 By Any Means Possible  Support all measures, including the use of violence, which maximize the profitability of slavery and which legitimize racism. Oppose, by the use of violence if necessary, all measures which advocate the abolition of slavery or the diminution of white supremacy.

 

Why Ten Precepts?

The Ten Precepts of American Slavery Jurisprudence may call to mind two questions. First, is there any hierarchical significance in the order of the Ten Precepts? Second, why were they cast as ten rather than nine or thirteen or some other number? I can further imagine someone asking, is precept five more significant than precept nine? In my opinion, the first three precepts on inferiority, property, and powerlessness are the sine qua non, while precepts four to ten are exemplifications or, in some respects, modifications of the first three. Each of the last seven precepts embody some of the major portions of the rationale and substance of the first three precepts.

The choice of ten, rather than a larger or smaller number, creates a symbolic irony as a contrast to the Ten Commandments of the Judeo-Christian religion. There is an additional tension in comparing the Ten Precepts of American Slavery Jurisprudence to the first ten amendments to the United States Constitution, our Bill of Rights. The Bill of Rights exemplifies some of the most noble aspirations of our nation's founders. Yet, at the same time that they were drafting a bill of rights for themselves, many of the forefathers exemplified several or all of the ten precepts I have noted by their practice and their laws. The phrase “Ten Precepts of American Slavery Jurisprudence” reveals the duality of the conflicting principles that governed American society. From one perspective, the United States was a nation that enacted a Bill of Rights for whites and, from another perspective, it was a nation that sanctioned the complete denial of liberty and justice to most or all blacks.

These precepts are not intended to be like the basic elements in chemistry where each element has an irreducible atomic structure. The “atomic structure” of a precept cannot be so sharply defined. While others might prefer to draw the lines differently by increasing or reducing the number of precepts, these differences are matters of delineation or degree and do not warrant an assumption that because it is difficult to draw a line no line should be drawn.

 


A. Leon Higginbotham, Jr. Chief Judge Emeritus (Retired), United States Court of Appeals; Public Service Professor of Jurisprudence, John F. Kennedy School of Government, Harvard University; Of Counsel, Paul, Weiss, Rifkind, Wharton & Garrison.

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