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Product Details
| ISBN-13: | 9780822377054 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 12/16/2013 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 176 |
| File size: | 1 MB |
About the Author
Karla FC Holloway is James B. Duke Professor of English at Duke University, where she also holds appointments in the Law School, Women's Studies, and African & African American Studies, and is an affiliated faculty with the Institute on Care at the End of Life and the Trent Center for Bioethics, Humanities & History of Medicine. She serves on the Greenwall Foundation's Advisory Board in Bioethics, and was recently elected to the Hastings Center Fellows Association. Holloway is the author of BookMarks: Reading in Black and White and Codes of Conduct: Race, Ethics, and the Color of Our Character, as well as Private Bodies, Public Texts: Race, Gender, and a Cultural Bioethics and Passed On: African American Mourning Stories: A Memorial, both published by Duke University Press.
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LEGAL Fictions
CONSTITUTING RACE, COMPOSING LITERATURE
By KARLA FC HOLLOWAY
Duke University Press
Copyright © 2014 Duke University PressAll rights reserved.
ISBN: 978-0-8223-5595-3
CHAPTER 1
The Claims of Property
On Being and Belonging
Are they men? Then make them citizens. Are they property? Why, then, is no other property included?
—Gouveneur Morris, James Madison, The Debates in the Several State Conventions of the Adoption of the Federal Constitution, vol. 5, 1787
Home—an anxiety of belonging.
—Toni Morrison, "Home," 1997
The foundational principles of governance that have an intimate association with property can be found in a penultimate version of the Declaration of Independence. The judgment eventually expressed in the Declaration regarding the familiar triumvirate—"life, liberty and the pursuit of happiness"—actually had its generation in an earlier document, The Virginia Declaration of Rights, composed by George Mason and unanimously adopted by the Virginia Convention of Delegates on June 12, 1776. Mason's declaration contended "that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."
Legal scholar Cheryl Harris has written perhaps the most provocative and critically compelling essay identifying the inherent propertied value in whiteness. For Harris the nomination of whiteness as a tangible thing like property invests it with an inalienability and control that was fundamentally proprietary. This value came to direct legal resolutions that protected claims made on the behalf of white citizens. In the United States slavery attached to the necessities that accompanied our nation's formation. Its identitarian evolution was a matter of pragmatism that evolved into both a structure and philosophy of discrimination. Harris's claim is that American legal systems were constituted in ways that made them innately and vigorously protective of whiteness as a value—something with the commercial attributes of property that attached to one's personhood. Her argument not only explains the coordinate evolution of property and persons, but it clarifies the persistence of its vexed commodification. The nation's laws sustained what might otherwise have been an ephemeral if not merely a legal value. Harris's essay is a strikingly creative and, in my judgment, a correct reading of often convoluted legal cases in early America that twisted their way through laws of property and inheritance to make certain that white persons and the national state that depended on them would maintain their privilege. They did so by an inordinate focus on the limits and nature of blackness—in decisions as defamatory as Dred Scott v. Sandford and as (arguably) normalizing as the Civil Rights amendments.
One way of understanding how quickly the nation came to invest in a regulatory discrimination between the kinds of persons native to and those who immigrated to these American shores is to consider the way in which religion was among the first identitarian interests expressed in state laws. Those earliest identitarian-based Virginia codes determined that Christianity would be the identity that determined the difference between those who would be slaves and those liberated from this assignation. Some critical conditionality of enslavement was the variable in a system that persisted, at least through "badges and incidents of slavery" centuries past its legal practice. During the colonial era, the systematic shift that would distinguish servitude from legal slavery followed the need for the English to have a consistent population of workers. As an example, consider the way in which the 1705 Virginia General Assembly documented the transformation and clarified the evolved status of blacks and Indians.
All servants imported and brought into the Country ... who were not Christians in their native Country ... shall be accounted and be slaves. All Negro, mulatto and Indian slaves within this dominion ... shall be held to be real estate. If any slave resist his master ... correcting such slave, and shall happen to be killed in such correction ... the master shall be free of all punishment ... as if such accident never happened.
The statutes not only affirmed slave status, but they instantiated a social necessity to confirm and solidify that distinction. That need would be evident in law and in society during the centuries that followed. It was a social shift that extended not only to persons brought into this country but was to become their progeny's legacy. Virginia's slave codes extended to any child borne of a mother who was enslaved.
The practice of the new republic would mirror the textual history of property's foundational ideology as a symbiotic accompanying reference to the construction of the nation, an ideology that was specifically attached to the color of the nation's citizens. Blackness and whiteness gained legal visibility. That identitarian focus, not unanticipated since religious identity was foremost in the minds of the earliest settlers as the ethical measure that distinguished them from the country they left, lasted as long as it was practical. But as chattel slavery expanded to support the growing economic dependence on imported labor, national origin became the more expedient and commercially profitable category to designate a person's potential in this country. One interesting version of the unique American nature of that distinction and the problems that inhered is that persons who came to the United States from Great Britain, who would be understood to be nonwhite in this nation's parlance, easily appreciated the value the United States placed on white identity (and earlier, on Christianity) as a means to access. Despite their skin color, these persons would argue for whiteness as their appropriate legal category despite an appearance that might at least ambiguate the claim. As late as 1923, in a claim by an "Aryan Indian" to the explicit value attached to U.S. whiteness, the Supreme Court of the United States ruled that for the purposes of being classified as an American citizen "Aryans" whose origin was the continent of India were not to be considered white persons.
What kind of sociolegal environment made whiteness a normative value that so easily attached to the right to property? The era's jurisprudence made certain that property was a contingent value. Social practices, including the rape of enslaved women and the unique differentiation from familial "ownership" of children from those encounters, led to a plethora of confusing and contradictory regulations, often dependent on the state of origin, that noted blood quantum or patrilineal versus matrilineal status (as enslaved or free) as the determinative legal category. Courts developed odd and perverse racial reasons—With whom does the person associate with in the neighborhood? What do teachers consider as the child's racial identity? What was the claim when a marriage was performed? What would be the impact on children who might stand to inherit from the estate? As to the matter of the individual, the standards varied from skin color, ancestry, or some idiosyncratic variable.
It is not difficult to imagine a contemporary legacy of slave codes, or to anticipate they would have some visible persistence in the decades immediately past the era of slavery. In fact, the most reasonable site to explore for the intersections of law and literature happen at this juncture in U.S. legal and social histories, when the manipulation of a history of British common law shifted in order to incorporate the bodies that became commerce. The consequent confusion between persons and property—where a person might act outside of the contingencies of property—make for narratives that recall the law's corporeal enactment, its intimacy with regard to bodies caught in legal definitions of slaves, real estate, citizens, and persons. The very embodiment of law, its ability to incorporate, becomes its legal conceit. And because this is true, it is particularly important not to skip the moment in U.S. legal history when persons were absolutely property—before they were not. William Blackstone's Commentaries on the Laws of England states the precedent of U.S. legal philosophies regarding property. Blackstone wrote, "There is nothing which so generally strikes the imagination ... as the right of property; or that sole and despotic dominion which one man exercises over the external things of the world." That legal imagination would be literature's playing field. The very potential of a fugitive, or an outlaw, acting in a way that suggests a credible synthesis between a human person and an entity like property gives fiction its extraordinary potential and makes legal precedent a visible cartography of that geography of identity. Little wonder that law continues to analyze and parse its own intent with regard to corporate personalities.
The legal history began in the early 1800s when the Trustees of Dartmouth College successfully applied the contract clause (the subject of chapter 3 of this book) to their argument that their charter gave them a corporate identity, affirmed the sanctity of contract, and protected them from a legislative effort to shift their status from private to public. In Trustees of Dartmouth College v. Woodward, Chief Justice John Marshall explained the court's understanding of the college's identity and established what would become the landmark precedent for the substantive potential of nonhuman persons. Notably, Marshall's decision speaks of personhood as something invested with "properties." He wrote: "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties that the charter of its creation confers on it, either expressly, or as incidental to its very existence." Marshall's judgment repeats the idea of an authority to declare and attach properties that would make, or unmake, one's personhood.
The Capital in Question
The intersecting relationship between property and contract is critical to the convoluted narrative of Charles Johnson's neo–slave narrative Middle Passage. The novel's main character is a freed black man, Rutherford, who is returned to slavery on a ship ironically and emblematically named the Republic. Once the ship's harrowing voyage of rebellion and mysticisms is complete, and when Rutherford finds himself back in New Orleans once again holding onto the papers that would legally document his claim to freedom and regain his status as a freed man that the ship's voyage unmoored, the novel seems to have returned to a safe harbor. However, nothing in that document assured his survival, whether he was at sea or on land. At sea, maritime rules interfered, and coupled with the unruliness of the ship's passage, the absent ethics of its mission, and the confusion of authorities that attempted to maintain some semblance of control, the ship was no place for documentary authority.
Middle Passage depends greatly on the legal and extralegal performances and enforcement of slavery. It did not matter that Rutherford had the papers to prove it. In black hands, documents are contingent. Rutherford makes that point clear on the novel's first page: "In 1829 when I arrived from southern Illinois—a newly freed bondman, my papers in an old portmanteau, a gift from my master" (1, 2). That distinction of identity—he was no longer a slave—was a critical nomination toward an identitarian permanence. But it was unfortunately attached to the ongoing ontological formation of race. Although the papers might confer freedom, his visibly dark body argued for his enslavement, assuring that there would always be a contest between the two. But since race was not fixed, neither was his status. Consider the syntactic ambiguity embedded in Johnson's sentence. It leaves oblique which thing was the gift: was it the portmanteau, or the papers? If this was donatio mortis causa—a deathbed gift—it is, by the traditions of English common laws that were the basis of U.S. jurisprudence, legally inalienable. And yet, to make Rutherford a gift of himself would also establish him as a legal person, able to receive an inalienable gift, even though there was a constitutional clause that denied him the citizenship that attends personhood. The era's contradictory interplay between persons and citizens is as tantalizingly vague in law as it was in society, and Johnson's Rutherford has a confoundingly peripatetic nature that exemplifies that instability. Once aboard the Republic, the authority those papers might have obtained in port leveraged little of their heft in adjudicating his status. On the open seas, he is vulnerable.
Middle Passage explores the rich potential of the dislocation of a destabilized property, and it engages the fugitive imagination both as liberal legalism and as fictive entanglement. But it is the personification of property that gives the narrative its persistence. Property as personhood runs perilously close to constitutional doctrine that would notice a "badge or incident" of slavery as a reasonable indication of bias. Rutherford's portmanteau is a reformulation of the letter carried in a briefcase by Ellison's Invisible Man that instructs whoever reads it to "keep this nigger boy running." Clearly Johnson's novel depends on the creativity attached to the fiction of freedom implicit in the paradox between stability and flight. But it does so by engaging the vexed terrain of the intersections between personhood, citizenship, and rights that the law has placed into play into the discourse of this book's focus. Nevertheless, given the era of its publication, a place may be claimed for it as a novel that is postmodern in its execution, and like Ellison's Invisible Man it can claim a kinship that goes beyond the disciplined genres of twentieth-century literature.
The critical question that shapes this text asks why matters about personhood, slavery, and identity would continue to exert such profound narrative energy long past the era of slavery. Johnson's novel is fiction of the late twentieth century. And although the close but focused readings of fiction here do consider these neo–slave narratives, my interest in doing so is to highlight the ways in which questions of property and personhood structure the fictions that follow, even those that do not depend on slavery as their literary site.
Personhood and citizenship have a constitutional boundedness that makes one a legal version of the other. However, there is also a clear and compelling history in the constitution of persons attaching to one's humanity. This ontological tangle becomes the stuff of fictions even as the relatedness between personhood and conferred citizenship becomes settled law. The law continues its legal fixes—with legislation in the 1860s and in the 1960s that repaired rights not yet fully enjoyed. It deployed affirmative actions and varying forms of scrutiny to adjudicate claims regarding racial inequities. Strict scrutiny—the highest judicial level of interpretive regard—is called for in claims regarding racial disparities. In its consistent return to the matter of race and rights, U.S. law has effectively reified the legal and normative questions regarding race, identity, and selfhood. Because of the earliest constitutional language, the legal history in the matter of persons become claims of property as well—are you a person or something owned? Do you have an "immutable" identity? How does the value of a thing attach to its utility, and how does law recognize shifting social values and utilities?
Finally, there is the question that indicates the intimate relationship between privacy and personhood: What about a person is inviolate and how can that inviolability stand if the law must recognize the distinction that makes a difference retain its potential for a compelling fiction? The tidy resolution seemingly available through law becomes the valuable terrain for legal fictions to engage a literary imagination fully invested with the attendant contradictions, complexities, and habits of precedent and tradition that have followed the evolution of racialized legal claims. Law retains its acts of certainty and resolution, and despite its axiomatic character, looks to fabricate a regulatory elegance. Of course, this makes it ideal terrain for a fiction, and the perplexity of problems that are identity based makes this a particularly compelling landscape for black fiction because the constitution of its characters as racialized come to depend on a consistent legal reincarnation that emerges as justification of the distinctions. From the era of enslavement through this day, race matters precisely because the law will not release it. As a consequence, the law turns on the fearsome potential of illegibility and illegitimacy. As long as these are properties of a body—legalisms will readily attach.
(Continues...)
Excerpted from LEGAL Fictions by KARLA FC HOLLOWAY. Copyright © 2014 Duke University Press. Excerpted by permission of Duke University Press.
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Table of Contents
Preface ixIntroduction: Bound by Law 1
Intimate Intersectionalities—Scalar Reflections 5
Public Fictions, Private Facts 9
Simile as Precedent 13
Property, Contract, and Evidentiary Values 17
1. The Claims of Property: On Being and Belonging 23
The Capital in Question 27
Imagined Liberalism 35
Mapping Racial Reason 41
Being in Place: Landscape, Never Inscape 49
2. Bodies as Evidence (of Things Not Seen) 55
Secondhand Tales and Hearsay 59
Black Legibility—Can I Get a Witness? 72
Trying to Read Me 77
3. Composing Contract 89
"A novel-like tenor" 93
Passing and Protection 96
A Secluded Colored Neighborhood 102
Epilogue. When and Where "All the Dark-Glass Boys" Enter 111
A Contagion of Madness 113
Notes 127
References 139
Acknowledgments 145
Index 147
What People are Saying About This
"Legal Fictions represents a culmination (if not the culmination) of Karla FC Holloway's rich corpus of criticism and theory. As a consideration of law and literature in the construction of race and legal fictions, it is an original intervention sure to inform understandings of, and scholarship about, both. This book is Holloway at her best: intelligent and thoughtful, fully in command of the critical vocabularies that she introduces, and thoroughly knowledgeable about the fields that she traverses."
"In this wonderful book, Karla FC Holloway illuminates legal texts with techniques and insights derived from literary criticism and offers new interpretations of fictional works by bringing to bear upon them knowledge derived from a deep immersion in legal studies. This is, in short, a remarkable example of productive interdisciplinarity from which all sorts of readers will learn a great deal."