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From Slavery And Seminoles To Aids In South Africa: An Essay On Race And Property In International Law, Natsu Taylor Saito

Villanova Law Review (1956 - )

No abstract provided.

Tricky Magic: Blacks As Immigrants And The Paradox Of Foreignness, Lolita K. Buckner Inniss

Publications

Since the beginning of the nation, white Americans have suffered from a deep inner uncertainty as to who they really are. One of the ways that has been used to simplify the answer has been to seize upon the presence of black Americans and use them as a marker, a symbol of limits, a metaphor for the "outsider." Many whites could look at the social position of blacks and feel that color formed an easy and reliable gauge for determining to what extent one was or was not American. Perhaps that is why one of the first epithets that many …

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

Book Review: Lessons From Reconstruction For Libertarians: Betrayal And Illusion In The Struggle For Real Equality No Easy Walk To Freedom: Reconstruction And The Ratification Of The Fourteenth Amendment By James E. Bond, Henry W. Mcgee, Jr.

Seattle University Law Review

With regard to the struggles of the newly freed slaves, Dean Bond's study of the Reconstruction legislatures endorses the views of contemporary historians. These historians do not blame the freedman for failure to forge lasting instruments of liberation, instruments that might have transformed the formal equality promised by emancipation into a social order free of the stigmatizing racial oppression upon which American slavery, segregation, and racial oppression has been premised. Diligently researched and written, the book is of significant interest because of the coincidence of the author's empathy with Afro-Americans and his unwavering and unequivocal affirmation of racial equality, principles …

Spiritual Equality, The Black Codes, And The Americanization Of The Freedmen, David F. Forte

Law Faculty Articles and Essays

The notion of spiritual equality grew from the abolitionist movement - the precursor for the political ideology of the radical Republicans. The radical Republicans did not think one could achieve the acceptance of spiritual equality through forced material equality. [I]t was a religious revival that brought our country to confront the reality of slavery. It was a theological doctrine from which we derived our notion of equality in the Reconstruction Amendments. And in that era, the free-thinkers - the secularists of the age - were temporizers on the issue. They were simply of no use in the raising to liberty …

Slavery And The Arkansas Supreme Court, L. Scott Stafford

University of Arkansas at Little Rock Law Review

No abstract provided.

The Origins Of The Code Noir Revisited, Alan Watson

Scholarly Works

In a recent article, The Origins and Authors of the Code Noir, my friend Vernon Palmer graciously and courteously took me to task for claiming that the law in the Code Noir was not made "on the spot" in the Antilles, but in Paris. He also said of me and of Hans Baade, "neither author appears to have investigated the actual circumstances of the Code's redaction." I can speak only for myself, and I confess with shame that Professor Palmer is quite correct. I did not investigate the actual circumstances of the redaction of the Code Noir. And I should …

The Devil And The One Drop Rule: Racial Categories, African Americans, And The U.S. Census, Christine B. Hickman

Michigan Law Review

For generations, the boundaries of the African-American race have been formed by a rule, informally known as the "one drop rule," which, in its colloquial definition, provides that one drop of Black blood makes a person Black. In more formal, sociological circles, the rule is known as a form of "hypodescent" and its meaning remains basically the same: anyone with a known Black ancestor is considered Black. Over the generations, this rule has not only shaped countless lives, it has created the African-American race as we know it today, and it has defined not just the history of this race …

Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’S Theory Of Interpretation, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, "a covenant with death and an agreement with hell." Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: "If slavery were not wrong, nothing is wrong." Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery …

Hegel’S Slaves, Blackstone’S Objects, And Hohfeld’S Ghosts: A Comment On Thomas Russell’S Imagery Of Slave Auctions, Jeanne L. Schroeder

Cardozo Law Review

Thomas Russell's wonderful paper A New Image of the Slave Auction is an example of how the best empirical work can result in conclusions that are so obviously "right" that they risk being mistaken as obvious. His paper serves as an important warning against a recurring problem in legal, as well as other scholarship: Picture thinking-in the sense of an unconscious (and as a result, unquestioning and uncritical) acceptance of familiar, traditional, comfortable imagery-so often blinds us.

The First Slave (And Why He Matters), Jonathan A. Bush

Cardozo Law Review

This Article has two purposes. The narrower, straight historical purpose is to explore in further detail the status of blacks in the earliest years of Britain's colonies in the New World. The second, more legal aim is to explore what is, for many of us, still the hardest question in American legal history: namely, to understand the route by which slavery came to be legal in the early seventeenth century, in a culture that had long rejected unfree status and that seemed to retain that view.

Estranged Fruit: The Reconstruction Amendments, Moral Slavery, And The Rearticulation Of Lesbian And Gay Identity, E. Nathaniel Gates

Cardozo Law Review

David A.J. Richards has composed a thoughtful and suggestive narrative that centers on the excavation of the antislavery constitutionalism forged by a small, but arguably influential, group of antebellum abolitionist feminists. Central to his narrative, and to the constitutional theses of the abolitionist feminists, is the concept of "moral slavery" which, on Richards' account, constitutes a crucial element of the hermeneutic background essential to a proper interpretation of the Reconstruction Amendments. According to Professor Richards, an understanding of the figure of the abolitionist feminist as a "multiple exile and outcast" who in opposing "moral slavery" played a vital role in …

Abolitionist Feminism, Moral Slavery, And The Constitution: “On The Same Platform Of Human Rights”, David A.J. Richards

Cardozo Law Review

The analogy between race and gender plays an increasingly important role in the interpretation of the Equal Protection Clause of the Fourteenth Amendment. However, interpretive arguments about the analogy make little or no reference to the abolitionist historical background of the Reconstruction Amendments in general and the Fourteenth Amendment in particular. This might make some sense if the only legitimate interpretive appeal to history were Raoul Berger's version of originalism, namely, the specific denoted things (including persons and practices) to which the relevant drafters and ratifiers of the pertinent constitutional text would or would not have applied the language in …

Bondage, Freedom & (And) The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, E. Nathaniel Gates

Cardozo Law Review

Twenty or so Africans, the first to arrive in British North America, were put ashore at Jamestown in 1619. Within seventy years, their labor, and that of the thousands who followed in their shackled train, had become the mainstay of the colonial economy. Once established by law, the perpetual bondage of Africans and African-American Creoles, in tandem with the notion of freedom it served to highlight and underscore, exerted a profound and lasting influence upon the economic, moral, and political life of the early European settler population and its creolized descendants.

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, A. Leon Higginbotham Jr.

Cardozo Law Review

Approximately twenty-five years ago, a group of thoughtful scholars, under the tutelage of Stanley Katz and Owen Fiss, met at the University of Chicago to discuss slavery law. Stanley Katz has previously noted that the conference generated extraordinary academic inquiries, as well as many books and articles. In this Article, I will describe briefly the intellectual journey I have traveled which was, in no small part, shaped by the conference and the interrelationships I have had since then, with so many scholars, as we have tried to get better insights into the interrelated issues of bondage, freedom, and the Constitution.

The Origins Of The Law Of Slavery In British North America, William M. Wiecek

Cardozo Law Review

In American experience, slavery originally appeared as a response to economic need. Subsequently, racism emerged as a justification for slavery, required as a response to the inherent contradictions of slavery. First there was slavery, then racism, then a fatal fusion of the two.

The Slavery Of Emancipation, Guyora Binder

Cardozo Law Review

The Thirteenth Amendment of the U.S. Constitution commands that "neither slavery nor involuntary servitude shall exist." What has been the effect of this command?

It will serve my present purpose to offer the following toosimple answer to this complex question: the Thirteenth Amendment secured little more than the manumission of slaves already practically freed by the friction of war. It guaranteed, in Confederate General Robert Richardson's now well-known phrase, "nothing but freedom."

Supposing this answer to be true, a further question presents itself: Did the Thirteenth Amendment's effect fulfill its command? Did universal manumission abolish slavery?

A full answer to …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

Fight Muhammad's 'Secret' With Facts, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Jacob Burns And The Institute For Advanced Legal Studies, David G. Carlson

Cardozo Law Review

Jacob Burns lived a long and fabled life, which was obviously its own reward. Among the very many things that could be said, and the thing I would like to memorialize here, is the profound legacy Mr. Bums left behind at Benjamin N. Cardozo School of Law, where he served as chairman of the board for many years and as founder of the Jacob Bums Institute for Advanced Legal Studies. In his memory, I would like to say a little about the history of this endeavor and Mr. Burns's role in it.

Civil Liberties And Civil War: The Great Emancipator As Civil Libertarian, Paul Finkelman

Michigan Law Review

A Review of The Fate of Liberty: Abraham Lincoln and Civil Liberties by Mark E. Neely, Jr.

Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder

Journal Articles

American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.

The Annapolis Poll Books Of 1800 And 1804: African American Voting In The Early Republic, David S. Bogen

Faculty Scholarship

No abstract provided.

On Hegel, On Slavery, But Not On My Head!, Guyora Binder

Journal Articles

This Article, a sequel to “Mastery, Slavery and Emancipation,” amplified its claims that slaves conceptualized freedom primarily in solidaristic terms as social and political participation, and recognition rather than as individual autonomy or economic opportunity. It replied to skeptical objections offered by Critical Race Theorist Kendall Thomas and offered a solidaristic reading of the autobiographies of Fredercik Douglass and Sellah Martin.

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …

Communities, Texts, And Law: Reflections On The Law And Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary-legalist's world view. Furthermore, with the exception of …

A Radical Intent, Michael A. Simons

Faculty Publications

(Excerpt)

Much of the recent debate regarding constitutional interpretation has focused on the relevance of the Framers' intent. Attorney General Edwin Meese III has urged judges to "resurrect the original meaning of constitutional provisions." In contrast, Justice William Brennan has argued that courts should adapt the Constitution to "cope with current problems and current needs." A key disagreement involves whether the Bill of Rights protects citizens against state as well as federal government abuses. Some scholars have called for a rollback of Supreme Court decisions that incorporate provisions of the Bill of Rights in the fourteenth amendment, arguing that these …

Slavery, Economic Development And The Law: The Dilemma Of The Southern Political Economists, 1800-1860, Eugene D. Genovese, Elizabeth Fox-Genovese

Washington and Lee Law Review

No abstract provided.

The Thirteenth And Fourteenth Amendments: Constitutional Authority For Federal Legislation Against Private Sex Discrimination, Emily Calhoun

Publications

No abstract provided.

Civil Rights - Legislation - The Civil Rights Act Of 1957, Thomas R. Winquist S.Ed.

Michigan Law Review

It is the purpose of this comment to note the nature of the prior legislation in the civil rights area, the provisions of the new act and the effect of the new act upon civil rights protection.