Friday, November 24, 2017

The Ten Precepts of American Slavery Jurisprudence

A. Leon Higginbotham, Jr. (1)



. . . . 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. . . .



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]



 


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