From Professor Paolo Farah, University of Tulsa School of Law: Upcoming Webinar: Taxation, Racial Capitalism, and the International Rule of Law: From Colonial Slavery to Global Governance
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A blog about law, the humanities, and popular culture
From Professor Paolo Farah, University of Tulsa School of Law: Upcoming Webinar: Taxation, Racial Capitalism, and the International Rule of Law: From Colonial Slavery to Global Governance
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This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and—through hard work, perseverance, and righteous rebellion—built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America, with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the myth of religious liberty that has influenced the Supreme Court’s adjudication of constitutional claims related to the First Amendment Religion Clauses. This Article provides the missing gap in the Court’s religious liberty story by exploring the historical role played by law and religion in the development of slavery in America. It describes the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It ends with insight into the countervailing forces of establishing slavery while disestablishing religion at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article ensures that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.Download the article from SSRN at the link.
This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and, through hard work, perseverance and righteous rebellion, built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the Supreme Court’s reliance on the “history and tradition” of religious liberty when adjudicating constitutional claims related to the First Amendment Religion Clauses. This Article fills in the missing gap in the Court’s “historical practices and understandings” methodology by exploring the historical role played by law and religion in the development of slavery in America. It will describe the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It will then describe the legal and religious practices involving the enslavement of Africans. It will end with insight into the countervailing forces of bondage and freedom at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article will ensure that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.Download the article from SSRN at the link.
This Article is a narrative history of a relationship between a white man named Richard and a Black woman named Laura that started in slavery and ended twenty-seven years later in a trial over whether they were husband and wife. The story follows some of the usual plotlines. Richard purchased Laura at a slave sale and brought her to his home in Missouri; he then married a white woman and they had a daughter together. Within a few years, however, that marriage fell apart, and soon after, Richard allegedly freed Laura and the two of them went to California and built a life together. Twenty years later, after Richard died, Richard’s long-lost daughter brought suit in a California courtroom. She sought to eject Laura from the home she shared with Richard on the theory she, rather than Laura, was Richard’s sole surviving heir and entitled to his large estate. This Article recreates the story of Richard and Laura to offer an intimate glimpse into the complexities of interracial relationships during slavery and the decades that followed. It is built out of the trial transcripts—which until now have remained hidden for 150 years—and relies heavily on the actual words of the lawyers, witnesses, and litigants to shape the narrative. The uniqueness of this approach is also what provides its value. Relying on their words and voices, this Article shines a light on how the parties and the participants saw their world, not on how others saw it for them. Richard and Laura’s story is also noteworthy in that it spans several decades and unfolds over several milestones—slavery, the Gold Rush, and westward expansion—creating the opportunity to expand our understanding of the individual experiences of people involved in Black-white relationships beyond what is typically found in the literature. Hearing about their story, and about the courtroom battle over the legitimacy of their relationship, provides context for why interracial families, even today, continue to suffer from minor indignities and open hostilities simply because they broke the norm.Download the article from SSRN at the link.
Newly Published:
Kathleen Brown, Undoing Slavery: Bodies, Race, and Rights in the Age of Abolition (University of Pennsylvania Press, 2023). Here from the publisher's website is a description of the book's contents.
Undoing Slavery excavates cultural, political, medical, and legal history to understand the abolitionist focus on the body on its own terms. Motivated by their conviction that the physical form of the human body was universal and faced with the growing racism of eighteenth- and nineteenth-century science, abolitionists in North America and Britain focused on undoing slavery’s harm to the bodies of the enslaved. Their pragmatic focus on restoring the bodily integrity and wellbeing of enslaved people threw up many unexpected challenges. This book explores those challenges.
Slavery exploited the bodies of men and women differently: enslaved women needed to be acknowledged as mothers rather than as reproducers of slave property, and enslaved men needed to claim full adult personhood without triggering white fears about their access to male privilege. Slavery’s undoing became more fraught by the 1850s, moreover, as federal Fugitive Slave Law and racist medicine converged. The reach of the federal government across the borders of free states and theories about innate racial difference collapsed the distinctions between enslaved and emancipated people of African descent, making militant action necessary.
Escaping to so-called “free” jurisdictions, refugees from slavery demonstrated that a person could leave the life of slavery behind. But leaving behind the enslaved body, the fleshy archive of trauma and injury, proved impossible. Bodies damaged by slavery needed urgent physical care as well as access to medical knowledge untainted by racist science. As the campaign to end slavery revealed, legal rights alone, while necessary, were not sufficient either to protect or heal the bodies of African-descended people from the consequences of slavery and racism.
Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans combined with standards developed to facilitate the growth of the international commodities market for products, including cotton. The impact of that shift in status persists today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that played a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.Download the article from SSRN at the link.
In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed. Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives form slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.Download the article from SSRN at the link.
Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.” For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a Circuit Court trial which is apparently the first federal decision to articulate a broad theoretical basis for White supremacy. Dow identified Whites as the “master” race, and it explained that only those of European origin were either welcomed or allowed to be members of the political community in the colonies. Non-Whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion. Dow, however, was not a person of African descent, he was Malay, from the Philippines. Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans. This understanding of Dred Scott helps explain the revival of Taney’s reputation during the Jim Crow era after Reconstruction. Courts declined to invalidate restrictions with respect to a broad range of civil rights on citizens and immigrants of African, Indian, Asian, and Mexican ancestry to which Whites were not subject. Indeed, Whites could not be subject to them, unless it is conceivable that under the U.S. Constitution, the law could provide, for example, that all races would be ineligible to testify or vote because of their race. Accordingly, even after Reconstruction, just as Dred Scott and Dow contemplated, the White race remained the master race, in the sense that they were the exclusive holder of truly inalienable rights.Download the article from SSRN at the link.
In May 1852, Charles Perkins decided he wanted his slaves back. Perkins was from Mississippi, but in 1849 he caught gold fever and moved to California in search of easy fortune. When he came, like hundreds of others from the southern states, he also brought an enslaved man with him, and later had two others sent from his family’s plantation. In 1851, following California’s admission to the Union as a free state, Perkins returned to his home in Mississippi, leaving the three men behind. A year later they were in court, litigating the question of whether California’s recently enacted Fugitive Slave Act—which promised the resources of the state to help slaveholders recover their slaves—was constitutional, and with it the larger issue of whether slavery could exist on free soil. The answer, provided five years before Dred Scott, foreshadowed the coming of the Civil War, and firmly planted the West in the middle of the national debate over race, slavery, and the law. This paper is a narrative history of In re Perkins, the case involving Charles Perkins and the three men he maintained were his slaves. In takes place during the Gold Rush and the decade that followed, and it has two primary goals. First, by centering a story about slavery in the American West, it provides a critical lens through which we can explore how the ideological conflicts animating the North-South axis also extended horizontally to the Pacific Ocean. With rare exception, scholars of American slavery and those of the West do not engage in the type of rich discussions that allow for the West to be brought into the national discourse over slavery and the growing sectional crisis. Yet, as In re Perkins demonstrates, these issues very much shaped both the experiences of those who settled the area and the positions of those back east. Second, as a narrative history, this paper also affords an opportunity to dig down deep into the main participants in the case and reconsider who we think the makers and interpreters of the law are. Unlike like most legal histories, which place primary emphasis on court decisions and legislative enactments, the focus here is on how the law was experienced on a local and more nuanced level. By shifting the emphasis from the high courts to the county courtrooms, this paper is part of a larger story of how people of color and their allies turned to the courts in an effort to protect their rights in ways that have not always been understood or appreciated.Download the article from SSRN at the link.
Elite southern lawyers professed and demonstrated commitment to a vision of legal practice and decisionmaking that they shared with their northern colleagues, even as legal arguments over slavery and secession played out contentiously in politics and the courts. This vision was rooted, not in commitments to slavery, free labor, or economic development but rather in legalism, characterized by commitment to legal rules and reasoning, and legal practice, distinguished by dedication to routine commercial work. Insulated from many of the political and economic conflicts of the antebellum era, a national legal culture allowed southern lawyers to serve as economic intermediaries between North and South. This article examines this culture through a study of the career of the Georgia lawyer E.A. Nisbet. During his legal education, time on the Georgia Supreme Court, and work as a private lawyer Nisbet demonstrated a consistent commitment to a technical American legal culture that allowed elite southern lawyers like him to support slavery in subtle but important ways.The full text is not available for download.
Legal codes and other documents of the late Roman Empire reveal a system, the colonate, which resembles serfdom in the Middle Ages. Farmers (coloni) had their (head and land) taxes paid by estate owners in whose census rolls they were registered. If the land changed ownership coloni were entitled to stay and were registered in the tax roll of the new owner. However, coloni and their offspring lacked the right to migrate. The paper argues that the pristine or original form of the colonate is a voluntary contractual arrangement among free farmers, estate owners, and the imperial Fiscus which acquired a public law dimension because it required a change in the personal status of the farmer. By means of this serfdom contract the contractors expected to share in the aggregate gains from reducing tax-collection costs and from stabilizing tax revenues. The paper goes on to suggest that a secondary or derived form of the serfdom contract probably emerged in response to the Roman state’s interventions in credit markets. The paper next considers the implications of the colonate for economic efficiency and concludes with some observations on the reasons for changes over time in its importance.Download the article from SSRN at the link.
This article presents the first comprehensive treatment of the basic and officially “open” question whether section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. It then explores possible implications for the constitutional law of discrimination against whites, racially disparate impact, race-based affirmative action, gender equality, and reproductive freedom.Download the article from SSRN at the link.
This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.Download the article from SSRN at the link.
This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.Download the article from SSRN at the link.
On June 10, 1858, the Attorney General of the United States issued an opinion concluding that a machine invented by a slave could not be patented, because neither the slave nor the slave owner could make an oath or affirmation that they were the inventor of the machine, as required by the Patent Act of 1836. The Attorney General’s opinion caused the Patent Office to deny at least two patent applications, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. Notably, the Confederate States Patent Act of 1861 provided, inter alia, that slave owners could patent inventions and discoveries made by their slaves. The Attorney General’s opinion seems to have relied on the fact that a slave was not a legal person and therefore could not make an oath or affirmation. But it may also have reflected an ideological dispute over whether slave owners should be entitled to benefit from the intellectual labor of their slaves. Ironically, the Attorney General and the Commissioner of Patents used the ideology of slavery to prevent slave owners from patenting the inventions of their slaves, and the Confederate States of America ignored the ideology of slavery in order to enable slave owners to patent the inventions of their slaves. In this way, a largely forgotten patent claim may offer a unique perspective on the politics and ideology of slavery in the antebellum United States.Download the article from SSRN at the link.
This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.Download the article from SSRN at the link.
This article intends to call attention to the fact that slavery is not solely a legal institution. The rules that make up the institution of slavery are also social, moral and religious. This means that the revocation of the legal rules which are a component of the institution of slavery is not enough to abolish the institution as a whole. In order to understand the weight that the non-legal rules have on modern slavery—i.e. slavery which is not condoned by the law—George Orwell’s Animal Farm is discussed, as this tale of apparent liberation turns out to be one of de facto, or modern day, slavery. Before turning to Animal Farm, I discuss slavery as an institution, and whether or not it still remains a legal possibility in the United States.Download the article from SSRN at the link.
What would it mean to “get over slavery”? Is such a thing possible? Is it even desirable? Should we perceive the psychic hold of slavery as a set of mental manacles that hold us back from imagining a postracist America? Or could the psychic hold of slavery be understood as a tool, helping us get a grip on the systemic racial inequalities and restricted liberties that persist in the present day? Featuring original essays from an array of established and emerging scholars in the interdisciplinary field of African American studies, The Psychic Hold of Slavery offers a nuanced dialogue upon these questions. With a painful awareness that our understanding of the past informs our understanding of the present—and vice versa—the contributors place slavery’s historical legacies in conversation with twenty-first-century manifestations of antiblack violence, dehumanization, and social death. Through an exploration of film, drama, fiction, performance art, graphic novels, and philosophical discourse, this volume considers how artists grapple with questions of representation, as they ask whether slavery can ever be accurately depicted, trace the scars that slavery has left on a traumatized body politic, or debate how to best convey that black lives matter. The Psychic Hold of Slavery thus raises provocative questions about how we behold the historically distinct event of African diasporic enslavement and how we might hold off the transhistorical force of antiblack domination.
No American city’s history better illustrates both the possibilities for alternative racial models and the role of the law in shaping racial identity than New Orleans, Louisiana, which prior to the Civil War was home to America’s most privileged community of people of African descent. In the eyes of the law, New Orleans’s free people of color did not belong to the same race as enslaved Africans and African-Americans. While slaves were “negroes,” free people of color were gens de couleur libre, creoles of color, or simply creoles. New Orleans’s creoles of color remained legally and culturally distinct from “negroes” throughout most of the nineteenth century until state mandated segregation lumped together descendants of slaves with descendants of free people of color.Much of the recent scholarship on New Orleans examines what race relations in the antebellum period looked as well as why antebellum Louisiana’s gens de couleur enjoyed rights and privileges denied to free blacks throughout most of the United States. This book, however, is less concerned with the what and why questions than with how people of color, acting within institutions of power, shaped those institutions in ways beyond their control. As its title suggests, Making Race in the Courtroom argues that race is best understood not as a category, but as a process. It seeks to demonstrate the role of free people of African-descent, interacting within the courts, in this process.