Written Into Law: The Legacy of African-American Subjugation

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Sculpture of Martin Luther King Jr. by Lei Yixin, in West Potomac Park in the National Mall. Photo by Ricardo Martinez/TCR

How did being black become equivalent to being inferior in the United States? How did that inferiority come to excuse and even justify African-American enslavement and criminalization?

As we honor Martin Luther King Day, a new book offers a timely look at the ugly history of race-based laws in our country. In Becoming Free, Becoming Black: Race, Freedom, and Law In Cuba, Virginia, and Louisiana, professors Ariela J. Gross, co-director of the Center for Law, History, and Culture at the University of Southern California Gould School of Law; and Alejandro de la Fuente, Director of the Afro-Latin American Research Institute at Harvard University, trace how colonial-era laws used to subjugate people of color still impact our justice system.

In a conversation with The Crime Report, Gross discusses how the racialist attitudes behind those laws continue to be reflected in definitions of who is an American, typified by President Donald Trump’s call to “send back” some of his congressional critics, in the language often used to describe campaigns for justice reform by communities of color, and in the resurgence of the anti-immigrant nativist movement.

This conversation has been condensed and edited for clarity.

The Crime Report: Why did you and Alejandro De La Fuente decide to write this book, and why do you feel it holds relevance today?

Ariela Gross: My last book is called What Blood Won’t Tell: A History of Race On Trial In America. As I studied the origins of racism in law in America for that book, one of the things that became very clear to me was the importance of the middle ground between black and white for understanding race and our history. Traditionally, people have described the U.S. as just black and white, while Latin America [is characterized by a] multiple racial regime.

That got me thinking comparatively, and I teamed up with Alejandro, who studies Cuba, and looked at what makes the U.S. and a Latin American country like Cuba so different with regards to race. In the U.S., whiteness was associated with citizenship, and you can really see the legacy of that today. When you have [President Trump] saying “send them back,” directed at people of color, it’s clear the assumption that nonwhite people are not really American has deep roots.

TCR: The book looks at the establishment of racial lines as basic laws to be both enforced and protected. Do echoes of that exist today?

AG: Unfortunately, I think the answer to that is yes. We do see echoes of the ideology of race that was created in a much earlier time period under slavery. One of the things that we found that was interesting was that it actually wasn’t the law of slavery so much as the laws of freedom, the laws that restricted free people, that really set up these racial regimes. The restrictions on free people of color, which restricted their mobility, limited their ability to go into professions, and restricted their ability to act as citizens have a lot of echoes today. Assumptions that people of color don’t have the capacities of full citizenship are behind so many of the efforts to suppress voting, [our immigration laws], and many of our criminal laws.

TCR: Is there a connection between slavery and what’s been called today’s “prison industrial complex”?

AG: As a question of historical development, the trajectory from enslavement to mass incarceration is not a straight line. There’s a lot of history in the middle. As an institutional matter, I don’t see the direct development; I think it’s more complicated than that. As an ideological matter, I think there’s an absolute connection. The real legacy of that period and the establishment of [racial separation] through law is the development of race as an ideology, as a hierarchy, as an understanding that this is a group of people who are uniquely fit for this degraded status of enslavement. And that ideological basis can justify other terrible forms of degradation, of subordination—and it is used in that way.

That aspect is the one that is especially reserved for African Americans: that this is the group of people who are put outside of society, whom it’s really appropriate to take freedom from. Whether it’s through convict policing or police brutality, that sense of the expendability of black life has its roots in slavery.

 TCR: Popular narratives discuss the slave who broke free or was saved by a white man, but your book shows both free and enslaved blacks winning their freedom on their own in the courts by maneuvering through a legal system that was otherwise stacked against them. Does that offer some hope in today’s struggles for racial justice?

 AG: I think there’s something hopeful about the fact that even very oppressive legal systems can be shaped from below as well as from above. It isn’t about waiting for a white savior at all. What is really remarkable is what people, even at the lowest rung of society, are able to do using “the master’s tools.”

I’ve thought a lot about an Audre Lorde quote: “You can’t dismantle the master’s house with the master’s tools.” And I think it’s probably right that you can’t completely take apart the master’s house. But it’s remarkable what people of color were able to do with just limited access to the master’s tools. In a state like Virginia, where there was no legal right for an enslaved person to purchase themselves, and any contract they signed was unenforceable in a court of law, people would still make these contracts and find ways to get them enforced. They’d find native ancestors to make a claim for freedom and then somehow get lawyers. The news would pass around 20 counties and pretty soon dozens of people were making a claim from that same native ancestor through these networks of knowledge they created to gain freedom for entire extended kin groups.

coverMany of the abolitionists who really pushed the antislavery movement, like David Walker and Frederick Douglass, were free people of color who had either escaped slavery or been born free. So, cumulatively, it does eventually break down the master’s house. I think there is some hope in that for every person who feels that there’s really nothing one person can do, or who looks at [today’s] legal system and says it’s rigged. [During slavery], the system was unbelievably rigged: no enslaved person or person of color was allowed to testify against a white person. But people just kept pushing against it. And they formed communities able to leverage the system on behalf of other members, claim more rights, and then turn customary rights into law by just pushing and pushing against the system.

TCR: Your book points out that black communities of this type were a great source of discomfort and stress for whites at that time. Does that translate into today’s hostility as well to African-Americans who advocate for justice reform?

 AG: What we describe is the way so many white political leaders and ordinary citizens, especially slaveholding whites, were absolutely convinced that white and black communities could never live side by side in freedom. That was the origin of the colonization movement, which was the 19th century version of “send them back.” Establish a colony in Africa and send free slaves there.

For a long time this united those white antislavery advocates who wanted to free the slaves and send them to Africa, and the proslavery advocates who wanted to forcibly remove blacks who were already free to Liberia. In the south, removal became the dominant condition. And then the communities that were left were subjected to these increasing restrictions, shutting down their churches, and their schools, and trying to cabin them in these small areas. I think the policing of black communities and the long history we have of enforced segregation, redlining, trying to keep urban communities within a particular area and policing them regularly, has come from a similar impulse: we can’t live together. There are no overt efforts to actually remove communities to Africa anymore, but we do see a new call now for colonization with immigrant communities.

TCR: Your book discusses how legal language was used to subjugate people of color. Is that true today as well?

AG: All of the court cases about race in the late period of slavery established a tight connection between whiteness and citizenship: that a white man is somebody who can exercise these rights of citizenship and be fit for citizenship. Everyone else is unfit. Look at how the petitions for removal of free people of color from Virginia changed from the 1830s-1860s. They started out by saying it’s unfortunate that we can’t live together, that blacks are going to be better off and happier in Africa. But by 1850, they used loaded language, talking about this “pestilence,” and what a “scourge” it is to have this group of people here, and how unfit they are for being part of the polity and society. We’ve seen this [rhetoric] through U.S. history, during waves of nativist sentiment and moments of struggle with the law, on who is white.  There are cases that go all the way to the Supreme Court deciding whether or not Mexican-Americans in the 1930s and 1940s, or people from India, Japan, Syria, or Hawaii, are white. [it reflects the idea advanced by] nativists that some people are so degraded that they couldn’t possibly fit in and have to be removed. I think we’re in one of those moments now.

TCR: Can your book play a role in changing that?

 AG: We’re seeing a big controversy over the 1619 Project and the central idea that slavery is key to the American story. What we show in our book is that slavery has created these [racialized legal] regimes that are really durable. We’re not really going to understand race in the US, in Cuba, in the Americas overall, unless we understand that history.

But, if what you want is only a progress story, that this was something that happened, but it’s deep in the past and it has no effect on the present, you’re not going to like stories that say slavery is fundamental to our trajectory. One of the corollaries might be that if this has been so central and so supported by the state, then this government does owe some form of redress to African Americans. I think the fact that we are talking about this publicly for the first time, that Democratic candidates are talking about it, is a big deal.

I’m not holding my breath for reparations to happen, but talking about it shows that things are starting to shift a little bit in terms of people publicly recognizing the importance of history. Getting people to think in that way is part of our job. Some of the shock at what’s happening now is the fact that the more recent history of race, the last 50 years, has been a shift away from overt expressions of racism, and towards what people call dog-whistling or colorblind constitutionalism. Critical race theorists have shown how much racism is still embodied in that supposedly color-blind narrative. It has been beneath the surface, and I think what’s shocking to so many people is seeing all of this hatred come up from under the surface, even with permission and participation from our president.

But to anyone who has been paying attention to what was going on under the surface, it’s not a surprise. It’s not a surprise to most people of color in this country and to most immigrants. I don’t want to take away the shock, if it compels them to act.

Isidoro Rodriguez is a contributor to The Crime Report. He welcomes comments from readers.

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