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Alienable Rights

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Alienable Rights is a daunting, powerful narrative of slavery and racism in America. The authors posit that “the drive for African-American equality has never had the support of the majority of Americans.” They argue that despite statements and sentiments of political leaders and the devastation of the Civil War, racial progress was only attained through the commitment of a “militant minority” of abolitionists and civil rights advocates, and that each advance has been met by a backlash of those committed to restoring white privilege.

As is the case in John Leland’s Hip: The History (albeit with a dramatically different focus and purpose), the authors here address the very substantive differences in American slavery when contrasted with the rest of the world; indeed, they ponder how slavery became “so firmly entrenched in the colonies, when it appears never to have received the approval of English law?” The basis for this contention is that in 1772, prior to the Revolutionary War, the chief justice of the King’s Bench adjudicated the case of James Somersett, an African slave who had been brought to England from Virginia by his master.

Somersett had run away but had been recaptured, taken aboard ship, and held there against his will. Demanding his client’s freedom, Somersett’s lawyer petitioned Mansfield for a writ of habeas corpus, which the chief justice reluctantly issued, affirming that Somersett could not be held, because “as soon as any slave sets foot upon English territory, he becomes free.” Mansfield’s decision, which resulted in the uncompensated emancipation of as many as fourteen thousand blacks resulting in Britain, not only made it clear that slaves automatically gained their freedom the instant they arrived on English soil, it also asserted an even more fundamental principle: that slavery could have no legal standing in a society unless “positive law” existed that provided it with an unequivocal legislative mandate. Slavery was so odious, Mansfield maintained, that its legality could not be based on mere custom or usage. Anything short of statutory action, which had the power to preserve slavery’s mandate long after the “reasons, occasion, and time … from which it was created . . . were erased from memory,” was insufficient to give it legitimacy.

The basic point, according to authors Adams and Sanders, is this: the Somerset decision meant that “no English precedent had been established to justify slavery in Britain’s colonies,” even though over the course of the preceding 150 years the American colonies at least had developed an elaborate and extensive legal code around the bondage of other human beings.

Alienable Rights documents the arrival of the first black slaves in America, the struggles many leaders had with whether slaves should be Christians (or allowed to convert to Christianity), and the quick shift in treatment afforded African bondsmen as opposed to other indentured servants. For example, the authors point to the 17th century case of John Punch, a runaway who escaped with two other indentured servants (“a Scot and a Dutchman”). While the two white men received sentences of four additional years of service for their escape, Punch was ordered to “service his master or his assigns for the time of his natural life here or elsewhere.”

While in a constitutional law class years ago, I was struck by the dissent written by Justice John Marshall Harlan in the Plessy v. Ferguson case (the decision in which the Supreme Court placed a judicial stamp of approval upon the misleading social doctrine of “separate but equal” accommodations for blacks and whites). While Harlan offered powerful statements like the notion that the Constitution should be “color blind,” and that “all citizens are equal before the law,” he nonetheless believed in the dogma of the day that blacks and whites were two separate “races” and that whites were somehow naturally superior to blacks.

As Adams and Sanders note, however, such beliefs were not limited to one particular person; they were largely systemic. Consider that in 1784, Thomas Jefferson said, “Comparing them by their faculties of memory, reason, and imagination, it appears to me that in memory they are equal to the whites; in reason much inferior . . . and that in imagination they are dull, tasteless, and anomalous.” Despite all that can be said in positive terms about the Founding Fathers, it remains true that the economy of the southern states would have been devastated by a recognition of blacks as the equal of whites; such a recognition would have required a wholesale reconsideration of the morality of enslaving other human beings. According to the authors:

Southerners sustained the system on which their lives depended by believing that the gulf between the two races could not be bridged. This radical racism, which not only insisted on white superiority but locked blacks into a permanent position of inferiority, arose out of necessity. In practical terms, it provided the rationale that allowed masters unbridled freedom in the treatment of their bondsmen and, even more important, assured southerners that even if they had no way out of their moral dilemma they could at least leave things unchanged and prosper indefinitely.

From the first American naturalization act in 1790, which restricted citizenship to “free white persons only” and assured that Africans were not Americans to the Civil War, Reconstruction, Jim Crow, and the desegregation following Brown v. Board of Education, Adams and Sanders recount the painful history of the struggle for racial equality. While the authors seem to despair of any lasting equality or anything beyond “uneasy peace” between whites and blacks, they also tend to adhere to the notion that the improvements of the past forty years are largely illusory (rather than significant steps forward, as many whites might believe). Of successful athletes and entertainers such as Michael Jordan, Halle Berry, Tiger Woods, and Oprah Winfrey, they write that such figures are unlikely to be “more than a footnote to the political and economic struggle for black equality,” and that while their fame creates “an illusion of freedom,” such figures are “closely controlled by the owners and advertisers of media corporations.”

There are many who might disagree with the authors’ ultimate conclusions regarding present or future race relations. It is also true that Adams and Sanders paint unflattering portraits of the Founding Fathers, that they rely at times on secondary sources rather than primary ones, and that they seem rather wedded to their view that race relations create irreconcilable differences in perspective that break down along the white/black divide.

Still, students of the Holocaust recognize it as one of those shocking events which embodies the darkness and evil which man is capable of inflicting upon his fellows, and the Holocaust is studied largely to remind us of that fact. Alienable Rights reminds us that in the examination of the peculiar institution of slavery we can see similar cruelty and self-delusion in terms of how it is possible to regard another human being as inferior and unworthy of basic respect, and that we should never assume the past is dead and irrelevant to the present. The arguments about history contained in Alienable Rights make it a worthwhile read, even if it is possible to contrast the authors’ ultimate interpretation of events with those of other scholars.

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About Bill Wallo