Thursday, April 19, 2018

Slavery to Reparations

Race, the Rule of Law, and the Merchant of Venice: from Slavery to Citizenship

Ken Masugi
Abstracted from:  Ken Masugi,  Race, the Rule of Law, and the Merchant of Venice: from Slavery to Citizenship,  11  Notre Dame Journal of Law, Ethics & Public Policy 197 -223 (1997) (99 Footnotes)

        From the first appearance of man upon the earth, down to very recent times, the words “stranger” and “enemy” were quite or almost, synonymous. Long after civilized nations had defined robbery and murder as high crimes, and had affixed severe punishments to them, when practiced among and upon their own people respectively, it was deemed no offence, but even meritorious, to rob, and murder, and enslave strangers, whether as nations or as individuals. Even yet, this has not totally disappeared. The man of the highest moral cultivation, in spite of all which abstract principle can do, likes him whom he does know, much better than him whom he does not know. To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals is one of the highest functions of civilization.

       After seeing Booth as Shylock, [Lincoln] commended the performance, but said that he would rather read it at home.  “A farce, or a comedy is best played; but a tragedy is best read at home.” It didn't make any difference to him, he added, how Shakespeare was played as “with him the thought suffices.”       Abraham Lincoln's career is an almost eerie display of Shakespearean grandeur and pathos.  Following numerous other observers on this theme, historian Don Fehrenbacher observes: “To some indeterminable extent and in some intuitive way, Lincoln seems to have assimilated the substance of the plays into his own experience and deepening sense of tragedy.” Lincoln's odd characterization of a popular comedy, The Merchant of Venice, as a tragedy is particularly telling. For the Merchant is a happy tale that, however, conceals an horrific conclusion intended, as I will argue here, to educate the audience to the terrifying potential of the new, emerging cosmopolitan world.    To use the imagery of the play, the Merchant is a golden casket which conceals a death's head. Lincoln saw too that America might continue on in a seemingly happy way yet contain within itself the seeds of its downfall by legitimizing slavery. Lincoln's struggle against slavery was very much an attempt, perhaps a tragic one, to make America the earthly comedy it promised to be at its founding, the first nation based on universal premises, the self-evident truth of human equality. The American comedy might be as “near to perfection as any human institution ever approximated”--that is, America might be judged by the ancient standards of the best regime. These were the standards of Lincoln, of Shakespeare, and of classical political philosophers such as Aristotle: Human equality requires the rule of law, which is necessarily (and incidentally) color-blind. The success of the American experiment, necessarily involving this most vexing question, requires citizens' continuing appreciation of its theory and practice. And that understanding calls for those highest standards of the teachers of the West, which we seek to bring forth here.

       But our immediate subject is race and the law.  How should the two be related?  My argument here will be that the emphasis American law has given to race has obscured the origins and enduring significance of the American dilemma--namely in the nature of republican, constitutional government, which in turn rests on natural rights.

        America is essentially a dream . . . . The substance of the dream is expressed in these sublime words, words lifted to cosmic proportions: “We hold these truths to be self-evident, that all men are created equal. . . .”

       Ever since the Founding Fathers of our nation dreamed this noble dream, America has been something of a schizophrenic personality, tragically divided against herself.       As recently as Martin Luther King, black Americans were insistent on binding the civil rights cause to this Nation's founding principles and the political philosophers of the West from whom they were derived.

       The American commitment to equality is to somehow make race, to some degree or other, against all previous political experience, irrelevant legally and politically. The commitment to race-neutrality is reflected in the wording of the U.S. Constitution itself, which, until the Fifteenth Amendment, never made mention of race. Moreover, the American proposition--“all men are created equal”--makes religion, military prowess, physical size, and, along with these, race, irrelevant for purposes of forming government by consent, which leads in turn to the rule of law. In other words, the more general case of how to establish the rule of law covers the specific instance of race. The themes of political theory such as government by consent, republicanism, and citizenship, should be brought to bear on the race question; a radical political problem deserves a radical treatment.

       The failure of political debate to reflect on the place of citizenship and republican character is one indication of our contemporary detachment of the most wrenching issues from founding principles. The crisis in civil rights mirrors an even deeper crisis concerning constitutionalism and modernity in general. Liberalism, with its emphasis on an abstract individual and limited government is not sufficient sustenance for the human soul. A strong sense of citizenship, an American political identity, trumps race, as we see in early Progressivism's attempts to assimilate non-Anglo-Saxons. But the fear of such identity and the political demands it might inflict--consider the debates over immigration--have led many to sympathize with Michael Walzer: “America has no singular national destiny--and to be ‘American’ is, finally, to know that and to be more or less content with it.” Content with living in private spheres in a commercial republic, increasing numbers of citizens do not even exercise the minimal obligations of civic participation. But even the high degree of Tocquevillean civic activity--our ability to form voluntary associations--does not fully reflect the political nature of man, as an examination of The Merchant of Venice will bear out. The theme of race and the law can be confronted only when we reach the political dimension that only the natural rights and citizenship issues bring forth.

The Ten Precepts of American Slavery Jurisprudence

The Ten Precepts of American Slavery Jurisprudence


. . . . 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."(2) 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. . . .[E]ven 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 in 1996. . . .

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.(3) 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.(4) 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.(5) 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.(6) 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.(7) 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.(8) 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. 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.(9) 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. . . .


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1. 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 L. Rev. 1695 (1996).; For a more detailed analysis of the Ten Precepts of American Slavery Jurisprudence, A. Leon Higginbotham, Jr., Shades of Freedom (forthcoming 1996). [Back]

2. See LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., 232 U.S. 340, 353 (1914) (Holmes, J., concurring). [Back]

3. See generally A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Property First, Humanity Second: The Recognition of the Slave's Human Nature in Virginia Civil Law, 50 Ohio St. L.J. 511 (1989).[Back]

4. See A. Leon Higginbotham, Jr. & Anne F. Jacobs, The "Law Only As An Enemy": The Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia, 70 N.C. L. Rev. 969, 1018, 1022 (1992). [Back]

5. See generally A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 Geo. L.J. 1967 (1989) [Back]

6. See generally A. Leon Higginbotham, Jr. & Greer C. Bosworth, Rather Than the Free: Free Blacks in Colonial and Antebellum Virginia, 26 Harv. C.R.- C.L. L. Rev. 17 (1991); A. Leon Higginbotham, Jr. & F. Michael Higginbotham, "Yearning to Breathe Free": Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213 (1993) [Back]

7. See Margaret A. Burnham, An Impossible Marriage: Slave Law and Family Law, 5 Law & Ineq. J. 187 (1987); A. Leon Higginbotham, Jr., Race, Sex, Education and Missouri Jurisprudence: Shelly v. Kraemer in a Historical Perspective, 67 Wash. U. L.Q. 673, 688-96 (1989). See generally Peggy C. Davis, Contested Images of Family Values: The Role of the State, 107 Harv. L. Rev. 1348 (1994); Peggy C. Davis, Use and Abuse of the Power to Sever Family Bonds, 12 N.Y.U. Rev. L. & Soc. Change 557 (1984); Peggy C. Davis & Richard G. Dudley, Family Evaluation and the Development of Standards for Child Custody Determination, 19 Colum. J.L. & Soc. Probs. 505 (1985). [Back]

8. See Higginbotham & Bosworth, Rather Than the Free: Free Blacks in Colonial and Antebellum Virginia, 26 Harv. C.R.- C.L. L. Rev at 55-62. [Back]

9. See generally Higginbotham & Jacobs, The "Law Only As An Enemy": The Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia, 70 N.C. L. Rev. 969 [Back]


An Essay on Slavery's Hidden Legacy: Social Hysteria and Structural Condonation of Incest

Zanita E. Fenton

excerpted from: Zanita E. Fenton, An Essay on Slavery's Hidden Legacy: Social Hysteria and Structural Condonation of Incest , 55 Howard Law Journal 319 (Winter 2012)


In 1830, the Governor of Virginia granted clemency to Peggy, the slave and biological daughter of John Francis, for murdering her slave owner. Peggy killed John Francis to end his abuse of her and his threats of rape. Remarkably, the request for clemency was made by one-hundred (white) men of the county outraged by the repeated attempts of John Francis to have sexual relations with Peggy.

Most revealing was that, even though at least two social/sexual taboos were in serious danger of transgression, no one made an effort to rebuke the conduct of John Francis or to protect Peggy prior to his death. One may wonder whether these men perceived the greater offense as against the established taboos or against what those taboos protected: the white patriarchal order (and those symbolizing it). Indeed, the sequence of events demonstrates the strength of those social/sexual taboos, yet reveals an unstated imperative to protect the actual heir to power. Both the taboos and the apparent refusal to enforce them against those intended to hold power were central to maintaining the social structure.

The history of slavery and its effects within the United States, especially the impact on the black family and individuals who are African American, have been studied and postulated since before slavery formally ended. What is less often discussed is the impact of slavery on white families and the individuals who comprise those families, or generally the American family within society at large. For both the commission of incest or miscegenation, the event(s) were publicly condemned while simultaneously ignored and hidden, and thereby condoned. Despite the imperative for racial purity, white men enjoyed a presumption of free access to slaves, as well as to freed women. Indeed, because acts of miscegenation were so common, as was their denial, they occurred in transparent obscurity. Further, this white, patriarchal, sexual prerogative was unfettered and all but unchallenged, even when such access resulted in an actual biological, incestuous coupling. Thus, the convergence of the taboos, miscegenated incest/incestuous miscegeny, prompted the hidden exhibition of incest, first for relations between family members of opposite races, but also for any correlate relations within a same race family. Indeed, acknowledgment or exposure of incest between relatives of so-called opposite race challenged both the social construction of race and therefore the basis for social stratifications. In the least, it calls into question any alleged biological distinction and rationales for this stratification. Unfortunately, it may also be that the social construct of difference may have made these kinds of relations psychologically palatable because the relation could not be considered familial.

Nonetheless, once there was silent condonation for the liaisons between a white father and his reflection in brown, it must have become more psychologically plausible that such liasons could also occur, with impunity, with his reflection in white. The commonsense progression within this power dynamic includes the unchallenged access of these same fathers to their white children.

Incest taboos have the purpose of permitting the development of children in safe environments, free of sexual exploitation. These taboos also make the interdependence of families within society necessary. The strength of the incest taboo may, alone, be enough to prompt the intensity of the silence surrounding the subject, even in the face of strong indicators of its prevalence and the associated problems with its occurrence. However, in the United States, the silence surrounding incest ought to be understood in tandem with the silence pertaining to interracial relations from the era of anti-miscegenation.

The core issues underlying a discussion of the connection between incest and miscegenation are misogyny and racism. In Man's Most Dangerous Myth: The Fallacy of Race, Ashley Montagu discusses the parallel between antifeminism and race prejudice:

In connection with the modern form of race prejudice it is of interest to recall that almost every one of the arguments used by the racists to prove the inferiority of one or another so-called race was not so long ago used by the antifeminists to prove the inferiority of the female as compared with the male.

Other prominent authors, such as Simone Beauvoir in The Second Sex and Gunnar Myrdal in An American Dilemma, have noted the similarities between the problems of race and gender. Myrdal observed that the myths perpetuating the inferior status of race and gender were almost identical; the similarity was not accidental, but originated in the paternalistic order of society. Correspondingly, the parallels between the taboos of incest and of miscegenation were at one time so close, that during the antebellum period they were, on occasion, understood as identical.

This Essay is a thought piece, relying on historical texts concerning society, politics, and the development of psychoanalytic conventions. The analysis offered in this Essay relies often on the absence of text and direct evidence as a means to elucidate the apparent, yet veiled problem of modern-day incest. Part I discusses the political considerations and legal thought regarding the connections between incest and miscegenation, primarily from the Ante-bellum South, which sustained the social order of the time. Part II discusses the prevailing family and its role in maintaining both patriarch and the racial social order. Part III identifies the parallels between the mythologies associated with incest and with miscegenation. It further discusses psychology as it affects an individual victim and situation. Part III closes by addressing the possibility of community-based psychology and mass hysterics contributing to the denial of existing social transgressions. The Essay concludes by suggesting how the various constructs identified have modern relevance.

. Professor of Law, University of Miami School of Law.

The Supreme Court and Slavery in the 1850s

Paul Finkelman

For the Complete Article See: Paul Finkelman, States' Rights, Southern Hypocrisy, and the Crisis of the Union, 45 Akron Law Review 513 (2011-2012) (385 Footnotes Omitted) (Student Note).


The Supreme Court heard a number of cases involving slavery in the late 1840s and 1850s. With one minor exception, slaveowners won every one of these cases and the Court overwhelmingly supported the power of Congress to assist them in recovering fugitive slaves. In Jones v. Van Zandt, a unanimous Court held that northerners could be held liable for the fugitive slaves they aided even if they did not have any notice that the person they helped was a fugitive. In this case, Van Zandt, an Ohio farmer, had given a ride to a group of slaves walking along a road in outside of Cincinnati. He was subsequently sued by the owner, Jones, for the cost of recovering them and the value of one who was never recovered. Van Zandt argued there was a presumption of freedom for everyone in Ohio and thus he could not know that the people he gave the ride to were fugitive slaves. The Court rejected this argument, essentially applying the law of the South-that all blacks were presumptively slaves-to the free states. The opinion was written by Justice Levi Woodbury of New Hampshire, and even the antislavery John McLean of Ohio accepted the result.

In Strader v. Graham, the Court considered for the first time the thorny problem of slave transit into free states. The Constitution allowed for the recovery of fugitive slaves, but said nothing about the right to voluntarily take a slave to a free state. Strader involved three slave musicians who, with the permission of their master (Graham), had traveled on a number of occasions from Kentucky to Ohio and Indiana to perform. After a number of such trips, they boarded Strader's steamboat, without Graham's permission, and escaped. Graham won a judgment in the Kentucky courts because Strader had allowed the slaves on his ship without their master's written permission, in violation of Kentucky law. On appeal, Strader argued that the slaves had become free under the Northwest Ordinance and the laws of Ohio and Indiana when Graham allowed them to go to those free jurisdictions. This argument was based on a legal theory, first developed in Somerset v. Stewart by Lord Chief Justice Mansfield, that a slave became free when taken to a free jurisdiction because there was no positive law creating slavery, and once free, the former slave was always free. By 1850, almost every northern state had adopted this rule, as had a many southern states. But by this time a number of slave state jurists and politicians had begun to question the propriety of following this rule when slaves returned from visits to free states.

In Strader, the Court faced the problem indirectly. The Kentucky courts had ruled that the status of Graham's slaves was not at issue, and whether they were entitled to their freedom for previous trips to the North could only be determined if they appeared before the state courts. But until they appeared in a Kentucky court, they were presumptively slaves. Therefore, Strader had violated Kentucky law by allowing Graham's slaves on his ship and he was liable to Graham for their value. The U.S. Supreme Court ruled that it must defer to the state of Kentucky on this matter, upholding the judgment against Graham. Under this rule, the slave states were free to decide for themselves who was a slave and who was not. In other words, the Court gave the slave states sanction to ignore free state law, and perhaps federal law, in determining who was a slave and who was not. The decision implied that the slave states could ignore the Full Faith and Credit provision of Article IV of the Constitution, just as Kentucky had ignored the constitutions of Indiana and Ohio. The true proslavery implications of this case would become apparent in Dred Scott v. Sandford, six years later.

A year after Strader, the Court clarified an aspect of the jurisprudence of fugitive slaves in Moore v. Illinois. In Prigg, the Court had struck down all state personal liberty laws. In that case, Justice Story had declared that no state could add to the requirements for the return of fugitive slaves, and thus all personal liberty laws providing due process for alleged fugitives were unconstitutional. Despite this huge victory for slavery, in a concurring opinion Chief Justice Taney complained that the decision would also prevent the free states from helping in the return of fugitive slaves. But in Moore, the Court upheld an Illinois statute which punished Illinois citizens for harboring fugitive slaves. This was one more victory for slavery.

Five years later, the Court decided Dred Scott v. Sandford, the most notoriously proslavery decision in the nation's jurisprudence. The outcome of the case-that Scott remained a slave-was plausibly correct, based, if nothing else, on Strader v. Graham. Scott claimed his freedom because he had lived in the free state of Illinois and in the Wisconsin Territory (in what later became Minnesota) where slavery was banned by the Compromise of 1820 (also called the Missouri Compromise) and various other federal laws. The Court initially planned to decide the case on the basis of Strader, and had it done so the case would probably be long forgotten. But the southerners on the Court insisted on a more comprehensive result, which led to Taney's massive and extraordinarily proslavery opinion. Speaking for the Court, Taney held that 1) slavery was a specially protected property under the Constitution; 2) free blacks could never be considered citizens of the United States and essentially had no rights under the Constitution; 3) that Congress had no power to ban slavery in the federal territories; 4) no law in the territories could free slaves because that would be an unconstitutional taking under the Fifth Amendment; and 5) that the Missouri Compromise unconstitutionally banned slavery in the federal territories, and by implication the ban on slavery in the Act creating the Oregon Territory was also unconstitutional. This was a sweeping proslavery opinion that settled the issue of slavery in the territories by allowing slavery in all the territories.

A concurring opinion by Justice Nelson of New York also directly telegraphed how the Court would rule on the issue of slave transit. Nelson noted at the very end of his opinion:

A question has been alluded to, on the argument, namely: the right of the master with his slave of transit into or through a free State, on Business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common citizen of the republic under the Constitution of the United States. When that question arises, we shall be prepared to decide it.

The implication was clear: as soon as the Court had an opportunity, it would guarantee that masters could travel anywhere in the United States with their slaves. In his House Divided Speech, Abraham Lincoln predicted that the logic of Dred Scott would lead to legalizing slavery in the North through the next Dred Scott decision. Nelson's opinion certainly made this seem likely.

The final presecession decision on slavery was Ableman v. Booth, arguably the most anti-states' rights decision since Martin v. Hunter's Lessee, McCulloch v. Maryland, and Cohens v. Virginia. But the difference between the cases is striking. Martin, McCulloch, and Cohens were seen as attacks on the sovereignty of southern states, leading to complaints by some Virginians that the Court had eviscerated the rights of the states. Ableman was directed at northern states and supported the Fugitive Slave Law of 1850. The case began when Sherman Booth, an antislavery editor in Milwaukee, helped lead a mob that rescued a fugitive slave name Joshua Glover, who had been in federal custody. United States Marshal Stephen Ableman then arrested Booth. At this point, the Wisconsin Supreme Court intervened, freeing Booth with a writ of habeas corpus. There, the Wisconsin Court declared that the Fugitive Slave Law of 1850 was unconstitutional. The Wisconsin Supreme Court then refused to send a record of the case to the U.S. Supreme Court. Thus, the U.S. Supreme Court did not decide the case until 1859, when Chief Justice Taney emphatically asserted:

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.

Northern states' rights claims would gain no support from the Supreme Court. Nor was the U.S. Supreme Court troubled by the Fugitive Slave Law of 1850. Speaking for a unanimous Court, Taney unambiguously proclaimed: the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States. Taney noted that the Wisconsin Supreme Court had asserted its supremacy over the federal courts. This astounded the Chief Justice as he noted:

These propositions are new in the jurisprudence of the United States, as well as of the States; and the supremacy of the State courts over the courts of the United States, in cases arising under the Constitution and laws of the United States, is now for the first time asserted and acted upon in the Supreme Court of a State.

Ableman was a strongly nationalist opinion-as strong as anything Justice Joseph Story or Chief Justice John Marshall might have written. But it was proslavery nationalism. It upheld the Fugitive Slave Law of 1850 and emphatically rejected the antislavery jurisprudence of a northern state. It was a decision slaveowners loved.


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