Tuesday, August 28, 2012

The Survey: Inequality, Slavery & Rights

I received some thoughtful responses to my post on Madison and equality last Friday.  Let's see if I can continue the line of argument here.  Two books come to mind.  The first is Laura Edwards' The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: UNC, 2009).  Focusing on North and South Carolina, Edwards argues that inequality actually increased following the Revolution, as white males used the rhetoric of rights to undermine a collective legal culture focused on preservation of the peace.  In a fascinating recovery of local cases, Edwards shows again and again how a system of "legal localism" evolved in the slave South, a system that operated free from centralized oversight and oftentimes in contradiction of state statutes. (p. 62)  For example, legal localism  "resulted in the periodic prosecution of whites for violence against slaves," even in instances where "historians' readings of statute and case law suggest that such cases should not exist." (p. 62)  Despite the rigid slave codes of South and North Carolina, in other words, local courts carved out a much less rigid, particularized body of law that "allowed outcomes to depend on specific situations."  (p. 62).  Yet, such localized arrangements suffered as white men began to increasingly adopt a "political discourse of rights" that not only intruded on the legal localism governing master/slave relations but also implicated the rights of free blacks.  As rights rhetoric permeated, free blacks found themselves in increasingly unequal positions.  Dan Sharfstein picks up a similar development in his recent book The Invisible Line: Three American Families and the Secret Journey from Black to White (New York: Penguin, 2011).  A great read, Invisible Line demonstrates how racial ideology “helped maintain the idea that all white men were equal citizens in a country increasingly stratified by wealth,” particularly at a moment when ever-larger numbers of whites found themselves living in frontier conditions akin to “the lowest peasantry of Europe” (Sharfstein, p. 47, 49).  Hopeful that migration west might improve their plight, settlers found themselves not on Jay Gitlin’s bourgeois frontier, but a complex battleground where life was profoundly unequal, and where the racial identities that bolstered slavery assumed a significance independent of slavery, a place where the struggle for resources and the struggle for identity merged, and where whiteness became both a legal status and a destination.  This is Sharfstein’s most salient point.  While those who argue that America is more unequal today than ever before might try to cordon off slavery as an exception, Sharfstein argues that behind the law of slavery rested a much larger justification for inequality based on race, one that did not simply “separate Africans and Europeans” as free and slave, but “spurred some people of African descent to try to escape their classification.” (Sharfstein, p. 21)  This body of law, Sharfstein demonstrates, survived well into the 20th Century.