Law and Race Commons^™

Comment On The First Slave (And Why He Matters) By Jonathan Bush, Peter Kolchin

Cardozo Law Review

In his Article The First Slave (And Why He Matters), Professor Jonathan Bush returns to a persistent question in the history of the colonial Chesapeake: the status of blacks in the seventeenth century. He frames this question, however, in a new way. Rather than seeking to determine whether or not blacks were slaves before the codification of slave law-a largely unanswerable question that revolves, at least in part, around what one means by "slaves"-he asks, how could the English have imposed slavery on blacks in America when slavery was non-existent in England and under English law? In response, he …

Outlawing Outcasts: Comparative Perspectives On The Differing Functions Of The Criminal Law Of Slavery In The Americas, Robert J. Cottrol

Cardozo Law Review

This is a commentary on some issues raised by Anthony De V. Phillips's "Doubly Condemned": Adjustments to the Crime and Punishment Regime in the Late Slavery Period in the British Caribbean Colonies and Judith K. Schafer's "Under the Present Mode of Trial, Improper Verdicts are Very Often Given": Criminal Procedure Trials of Slaves in Antebellum Louisiana, both of which appear in this volume. Both discussions highlight the role of criminal law, procedure, and punishment in helping to sustain systems of African and Afro-American chattel slavery in New World societies. They provide interesting contrasts between civil and common law approaches to …

Condemned By Substance And Process: A Comment On “Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies And “Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Raymond T. Diamond

Cardozo Law Review

The substance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of criminal sanctions as a means of enforcing schemes of regulation meant to guarantee public welfare. By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the criminal law. As a result, the rights that protect the accused from intrusions by a potentially tyrannical state and from arbitrary decision making by …

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 …

Opening Address, Stanley N. Katz

Cardozo Law Review

I am more moved by this occasion than any of you other than Owen Fiss can imagine, for it takes me back to my first days teaching law at the University of Chicago in the fall of 1971. It was then and there that I began two of the most important friendships of my life with Harry Kalven and Owen Fiss. We agreed to begin a series of seminars on the law of slavery, which in the end carried on for three years.

Comment On Guyora Binder, “The Slavery Of Emancipation”, Michael Les Benedict

Cardozo Law Review

When I first received Professor Binder's highly theoretical, speculative, and thought-provoking paper, I wondered whether I was the right person to comment upon it. Professor Binder has a philosophical turn of mind; he is at home in the world of Hegel. I am disoriented in territory more exotic than that of Locke. In the history department of the Ohio State University, I teach the course that introduces our graduate students to the philosophy of history. However, I have always considered that a cosmic practical jokeon my students more than me-cooked up by the shades of Hegel, Collingwood, and Croce.

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.

Can A Lawyer Ever Do Right?, Owen M. Fiss

Cardozo Law Review

Jacques Maury and Maurice Gargon were good people, but not good enough. They resisted the harshness of the racial laws of Vichy France but not as fully as they should have. Falling victim to the proclivity of all lawyers, they became ensnared within the technical trappings of the law. They helped individual clients who suffered under the Vichy laws, but are faulted by Richard Weisberg for failing to challenge those laws at a foundational level. Professor Weisberg described the result as grotesque.

Legal Ethics And Fugitive Slaves: The Anthony Burns Case, Judge Loring, And Abolitionist Attorneys, Paul Finkelman

Cardozo Law Review

Judges and lawyers seek to enforce and uphold the "law" while also proclaiming an interest in an abstraction we call "justice." As we know, there is often a tension between the two. Consequently, serving the law often means not serving justice. Similarly, often a tension exists between a lawyer's duty both to seek a legal remedy to a problem and to act in the best interests of a client. Activist lawyers can have an agenda that is at odds with members of the class they claim to serve. These two problems are complicated by a third. Lawyers and judges have …

Ethics Under Slavery’S Constitution: Edward Loring And William Wetmore Story, Ruth Wedgwood

Cardozo Law Review

We can greatly admire Paul Finkelman's paper on the rendition of Anthony Burns in 1854 and the problematic role played by Judge Edward Loring in returning Burns to Southern bondage. Professor Finkelman draws thoughtfully from original source materials of this famous case in the harnessing of political feeling against slavery, including the diary of Richard Henry Dana, the papers of Senator Charles Sumner, and the records of Harvard College.

Allocating Honor And Acting Honorably: Some Reflections Provoked By The Cardozo Conference On Slavery, Sanford Levinson

Cardozo Law Review

I begin by focusing on some of the comments by Stanley Katz and others about Judge Thomas Ruffin, the famous author of the egregious North Carolina opinion, State v. Mann, and its endorsement, at least as a legal matter, of a master's absolute power over the slave. Can one have, as apparently Harriet Beecher Stowe did, "deep respect for the man" Ruffin even as one despises the system that he served? Would we, for example, wish to honor him by placing his portrait in American law schools as a presumed inspiration to further generations of law students as to …

The Moral Economy Of The Purchase Of Freedom: Ethical Lessons From The Slave Narratives, Lea Vandervelde

Cardozo Law Review

In his contribution to this symposium, Richard Weisberg tells us a subtle story of what he calls "twin hermeneutics." I will use one of these-"the hermeneutic of acceptance"-to launch my own discussion on the subject of ethical dilemmas. By this term, "the hermeneutic of acceptance," Weisberg means the gradual acceptance by French lawyers of the scheme of racial exclusion newly created by Vichy laws. He traces the digression in legal arguments made by French lawyers during the four years of Vichy rule. French lawyers loaned their prestige to these new laws by means which placed their legal arguments on a …

The Unlikely Hero Of Dred Scott: Benjamin Robbins Curtis And The Constitutional Law Of Slavery, Earl M. Maltz

Cardozo Law Review

The standard account portrays Dred Scott v. Sandford as a story of villains and heroes. The villains are the members of the majority, led by Chief Justice Roger Brooke Taney, who concluded that descendants of slaves could never become citizens of the Union and that Congress could not outlaw slavery in the territories. The heroes, on the other hand, are the two dissenters, John McLean and Benjamin Robbins Curtis, who rejected these conclusions and determined that Scott should be deemed a free man. McLean's opinion, however, was not tightly reasoned and was rather clearly designed to advance his presidential ambitions; …

Comment On Earl Maltz, Kenneth M. Stampp

Cardozo Law Review

Professor Earl Maltz has written an excellent brief account of Benjamin R. Curtis's judicial record as it relates to slavery, including his dissenting argument in the famous Dred Scott case. He found Curtis to be a perfect example of mid-nineteenth century Northern conservative Whigs-the "Cotton Whigs," as their antislavery critics called them. They disliked slavery, but, in equal measure, they disliked those who agitated against it. Both Southern proslavery extremists and Northern abolitionists appalled them, for both groups endangered the Union. Conservative Whig President Millard Fillmore would not have appointed Curtis to the Supreme Court if he had shared the …

"The Compromising Expedient": Justifying A Proslavery Constitution, James Oakes

Cardozo Law Review

Why was the Constitution so proslavery?

The answer cannot be that proslavery ideologues dominated the process by which the Constitution was drafted and ratified. A historian could count on the fingers of two hands all of the zealous partisans of slavery (and of abolition) who were known in the late 1780s. They occupied the extremes of a debate over a Constitution that in the end neither extreme produced. The men responsible were the men in the middle-those who considered themselves progressives but who compromised with proslavery extremists for the sake of ratification, and thereby secured a Constitution that resisted much …

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 …

Bondage, Freedom & The Constitution, Eric Foner

Cardozo Law Review

Linking the papers on this most interesting panel are questions that center on the meaning of freedom. What is freedom? Who has the power to define what freedom is? What are the consequences of slavery and its abolition for Americans' understandings of freedom? In one way or another, these papers, as well as many others in this conference, illuminate these questions.

Articles Sell Best Singly: The Disruption Of Slave Families At Court Sales, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents the empirical finding that the risk of family separation at slave auctions was higher at court-ordered and court-supervised sales as compared with private sales of capitalist auctioneers. The article also examines legal and ideological justification for the destruction of slave families. Law served to disguise human agency in the breakup of slave families.

This article builds upon the author’s earlier finding that a majority of slave auctions in South Carolina were conducted by the courts. The data for this article and the previous study were drawn from antebellum primary sources including trial-court records, the salesbooks …

Articles Sell Best Singly: The Disruption Of Slave Families At Court Sales, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents the empirical finding that the risk of family separation at slave auctions was higher at court-ordered and court-supervised sales as compared with private sales of capitalist auctioneers. The article also examines legal and ideological justification for the destruction of slave families. Law served to disguise human agency in the breakup of slave families.

This article builds upon the author’s earlier finding that a majority of slave auctions in South Carolina were conducted by the courts. The data for this article and the previous study were drawn from antebellum primary sources including trial-court records, the salesbooks …

Slavery Rhetoric And The Abortion Debate, Debora Threedy

Michigan Journal of Gender & Law

There are many things that could be, and have been, said about the question of abortion. This article focuses on the rhetoric of the abortion debate. Specifically, I discuss how both sides of the abortion debate have appropriated the image of the slave and used that image as a rhetorical tool, a metaphor, in making legal arguments. Further, I examine the effectiveness of this metaphor as a rhetorical tool. Finally, I question the purposes behind this appropriation, and whether it reflects a lack of sensitivity to the racial content of the appropriated image.

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.

South Carolina's Largest Slave Auctioneering Firm, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This article presents the original finding that South Carolina's legal system conducted a majority of the state's slave auctions during the antebellum years.Courts conducted slave auctions in several circumstances. Sheriffs sold the property of debtors; and courts also conducted or supervised sales in order to divide estates. Drawing upon extensive empirical analysis of primary sources in various South Carolina archives, this article compares the total number of slaves sold at court-ordered or court-supervised sales with the best empirical estimates for private slave sales - whether at auction or not. The conclusion is that the courts acted as the state's greatest …

South Carolina's Largest Slave Auctioneering Firm, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This article presents the original finding that South Carolina's legal system conducted a majority of the state's slave auctions during the antebellum years.Courts conducted slave auctions in several circumstances. Sheriffs sold the property of debtors; and courts also conducted or supervised sales in order to divide estates. Drawing upon extensive empirical analysis of primary sources in various South Carolina archives, this article compares the total number of slaves sold at court-ordered or court-supervised sales with the best empirical estimates for private slave sales - whether at auction or not. The conclusion is that the courts acted as the state's greatest …

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

Cardozo Law Review

No abstract provided.

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 …

In Re Radical Interpretations Of American Law: The Relation Of Law And History, A. E. Keir Nash

Michigan Law Review

This Article centers instead upon assessing two types of legal analysis - non-Marxist radical interpretation and "non-reductionist" Marxist theory - which, despite conspicuous differences, share the belief that understanding the American historical experience is a prerequisite to understanding American law. Both approaches also share two other important convictions. One is that a "consensual" or "liberal pluralist" version of American history has little explanatory validity, at least in regard to such major problems as the political and legal breakdown represented by the Civil War, and the law's role in American economic development. They also agree that historical explanations which downplay discussion …

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

Publications

No abstract provided.

A Survey Of American Negro Slavery As Seen In Its Legal Aspects, Mona M. Webb

Graduate Student Research Papers

This paper presents a limited study of the legal basis for slavery in pre-civil war United States laws.