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The Slave's Two Bodies: The Life of an
American Legal Fiction
Malick W. Ghachem
The Fœderal Constitution ... decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live.
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| — "Publius" [James Madison], Federalist No. 54 (February 12, 1788) |
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In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.... Our Constitution is color-blind.... The law regards man as man.
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| —John Marshall Harlan, Plessy v. Ferguson (1896) |
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| One of the more conspicuous paradoxes of slavery's legacy in con-temporary America is to have produced two diametrically
opposed schools of thought about how best to achieve racial equality. One school, conventionally associated with the policy of affirmative action, holds that it is legitimate for government to make distinctions between persons in terms of their race in order to overcome the continued effects of past racial discrimination. Another school, conventionally associated with the ideal of the color-blind Constitution (articulated most famously by Justice John Marshall Harlan in his Plessy dissent), asserts that racial equality is above all a matter of formal equality before the law. There are, to be sure, many ways of complicating this dichotomy, and many arguments can be advanced both for and against the two positions. Boiled down to its essence, the debate over how to achieve racial equality is a debate between content and form, the realities of the social world versus the ideals of the "rule of law." |
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Racial liberalism—the belief in formal legal equality as the deepest expression of the ideal of racial equality—dates back to abolitionist writings of the early nineteenth century, as Andrew Kull has shown.1 But the prohibition on racial classifications in law is only one side of the ideology of racial liberalism, and by far the more recent one. Before it ever became possible to think of the Constitution as color-blind and of the United States as a nation in which there is "no superior, dominant, ruling class of citizens," it was possible, at an even more fundamental level, to describe African Americans solely in terms of their formal legal "character," as James Madison put it in Federalist No. 54. As subjects (or objects) of the law of slavery, African Americans appeared in a certain light. And it was therefore legitimate, argued Madison, for the Federal Constitution to "view" them in a manner consistent with that light. The Three-Fifths Clause, in this "view" of the national charter, was consistent with the "mixt character" of persons who were also property, things that were also persons.2 |
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By the time Plessy was decided in 1896, the double character of slaves had, in principle if not always in practice, gone the way of slavery itself (only to be replaced, as C. Vann Woodward showed long ago, by the segregationist regime of Jim Crow laws that Plessy upheld).3 But the tendency to describe African Americans in terms of their purely formal character, their identity "in the view of the Constitution, in the eye of the law" (as Harlan put it), was still very much alive. That it was reflected in 1896 by a dissenting opinion whose language continues to structure contemporary American notions of racial liberalism suggests the enduring nature of this tendency, as well as the urgency of arriving at an accurate understanding of its historical origins.4 |
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