Afrohumanism is crucial to the forward-looking “project of thinking humanity from perspectives beyond the liberal humanist subject, Man” (Weheliye 2014: 8). It is another question, however, whether such a humanist approach provides the best historical analytic for understanding slavery and its carceral afterlives. This question becomes particularly pressing when we consider that today’s prison-industrial complex, like the American slaveholder of the past, extracts profits by strategically exploiting—rather than denying—the lucrative humanity of its captive black and brown subjects. To illustrate these claims, this article examines a seldom-discussed slave case, United States v. Amy (1859), which was tried before Supreme Court chief justice Roger B. Taney two years after his infamous decision in Dred Scott v. Sandford (1857). Centering on the figure of the legal person rather than the human or the citizen, United States v. Amy alerts us to the lethal legacy of slave personhood as a debilitating mixture of civil death and criminal culpability. Nowhere, perhaps, is that legacy more evident than in viral videos of police misconduct. And nowhere do we see a more vivid assertion of black counter-civility than in the dash cam video of the late Sandra Bland’s principled, outraged response to her pretextual traffic stop by Trooper Brian Encinia. The essay closes by considering Bland’s arrest and subsequent death in custody in the context of her own and other African Americans’ efforts to achieve and maintain a civil presence in an American law and culture where black personhood remains legible primarily as criminality.
Today, the carceral afterlives of slavery make themselves manifest in racist profiling, police misconduct, and mass incarceration.1 Activists, public intellectuals, and scholars often protest this state of affairs with humanitarian appeals. “Hundreds of years ago, our nation put those considered less than human in shackles; . . . today we put them in cages,” observes Michelle Alexander (2012: 141) in her indispensable The New Jim Crow: Mass Incarceration in the Age of Colorblindness. “This is the dehumanization of African-American people,” sociologist and minister Michael Eric Dyson (in Goodman 2014) insisted of the St. Louis County grand jury’s failure to indict white Ferguson, Missouri, police officer Darren Wilson in the shooting death of African American teenager Michael Brown. The Black Lives Matter movement emerged as a “space for the celebration and humanization of Black lives” (Garza 2014) in response to the un-redressed killings of Brown, Eric Garner, Trayvon Martin, and the increasingly visible number of African Americans caught in the crosshairs of racism and police power. Ava DuVernay’s powerful 2016 documentary on race and criminalization after slavery, 13th, closes with CNN political commentator Van Jones intoning, “the opposite of criminalization is humanization,” and activist critic Malkia Cyril insisting, “it’s about rehumanizing us as a people.”
This commentary appears against the backdrop of a resurgent Afrohumanism in the academy. Building on the work of Hortense Spillers and Sylvia Wynter, Alexander G. Weheliye (2014: 19) speaks of the necessity of making “the human . . . a central object of knowledge in black studies.” To this end, he suggests, “If racialization is understood not as a biological or cultural descriptor but as a conglomerate of sociopolitical relations that discipline humanity into full humans, not-quite-humans, and nonhumans, then blackness designates a changing system of unequal power structures that apportion and delimit which humans can lay claim to full human status and which cannot” (3). Such a critical prioritizing of the human is consistent with Wynter’s (2003: 260) insight that “our present ethnoclass (i.e., Western bourgeois) conception of the human, Man, which overrepresents itself as if it were the human itself,” threatens “the full cognitive and behavioral autonomy of the human species itself/ourselves.” This endeavor thus mounts an important challenge to poststructuralist-cum-posthumanist discourses whose efforts to dispense with the human often serve to entrench further its overrepresentation as Western, bourgeois “Man,” on the one hand, while identifying a more diverse humanity with nonhuman animals, on the other (Weheliye 2014: 9–10).
Clearly, Afrohumanism is crucial to the forward-looking “project of thinking humanity from perspectives beyond the liberal humanist subject, Man” (8). It is another question, however, whether such an approach provides the best historical analytic for understanding slavery and its afterlives in American culture.2 More than twenty years ago, Saidiya V. Hartman (1997: 5) demonstrated that “the recognition of humanity and individuality acted to tether, bind, and oppress” the black subject both during and after slavery. Whether we think of the slave girl Phillis’s forced, unpaid secretarial work for the Wheatley family in colonial Boston or the practice of leaving traveling slaves’ children behind as hostages during sojourns in free jurisdictions, it is clear that enslaved African Americans were valued for and controlled through the cognitive capacity and affective qualities that distinguished them as fellow human beings (see Wong 2009: 77–182). Unquestionably, slaveholders maintained social control over and extracted profits from enslaved people through myriad dehumanizing practices. That brutal treatment did not, however, mean that whites thought slaves and other people of African descent were not human.3 Quite the contrary, as Christopher Freeburg (2017: 89) contends, “white subjects need to strip blacks of their personhood because of their humanity and not in spite of it” (see also Cassuto 1997: xiii). Accordingly, historian Walter Johnson (2016) concludes, the liberal rhetoric of dehumanization is “misleading, harmful, and worth resisting.” An inhuman practice, slavery actively exploited a recognized black humanity. Moby-Dick’s Ishmael acknowledges as much when he alludes to “that common decency of human recognition which is the meanest slave’s right” (Melville 2002: 202).
Unlike Ishmael, we are heirs to an abolitionist discourse that influentially, albeit problematically, constructed slavery as a process of dehumanization and animalization. One of the most effective, influential, and underappreciated rhetorical tactics of the transatlantic antislavery movement was to transform enslavers’ conscious economic exploitation of the human capacities of those targeted for enslavement into an unchristian denial of black humanity. British pottery manufacturer and reformer Josiah Wedgwood’s medallion of a nearly naked kneeling slave mutely imploring, “Am I Not a Man and a Brother?” (1787), became a durable abolitionist meme. Featured on everything from stationery to handkerchiefs, the icon solicited assent to the widely accepted fact that slaves were human beings by calling that very fact into question. This problematic tactic achieved the laudable goal of inserting a “metaphysical opposition” into the ancient concept of human property (Mussawir and Parsley 2017: 49). The product of a broader nineteenth-century evangelical reform movement, this sentimental abolitionist rhetoric shaped the humanitarian discourse that surfaced in the wake of World War II (Hunt 2007: 116). Combined with the contemporaneous rise of the human sciences, this discursive background ensured that, as Weheliye (2014: 21) observes, the emergent “interdiscipline” of black studies “made humanity an avowed ideological and ontological battleground.” To impose this presentist humanist perspective on slavery retrospectively, however, risks dangerously misunderstanding the legal-cultural logics of racism.
Focusing on imputations of black criminality, this article contends that the through-line connecting slavery to mass incarceration is not the denial but the exploitative recognition of black humanity. Today’s prison-industrial complex, like the American slaveholder of the past, extracts profits by strategically commodifying the humanity of its captive black and brown subjects. To speak of the carceral afterlives of slavery in this way is to succumb, Stephen Best (2012: 453) would caution, to the critical fallacy “that the slave past provides a ready prism for apprehending the black political present”—and thus to fail to appreciate the “radical alterity of the past” (455). The figure is a suggestive one. Consider the simultaneously clarifying and distorting effects of a prism on a beam of light. Rather than dispensing with the slave past as a lens through which to view the political present, we might better attend to its refracting effect. Viewed through the prism of the slave past, the seemingly linear history of racist dehumanization bends sharply to follow an oblique trajectory. The line is still there, of course, but it takes us in a radically divergent discursive direction—that of legal personhood.
As Best’s own work illuminates (2004), one of the most alien aspects of the slave past is a concept of humanness that did not exclude property status. If, then, we share Weheliye’s understanding of “racialization” as “a conglomerate of sociopolitical relations” and “blackness” as designating “a changing system of unequal power structures,” then the “status” to which we need to direct our attention is not that of the human but of the person. Like nineteenth-century Americans, we tend to use these words interchangeably in everyday speech; indeed, they are often confused in the relevant scholarship (see, for example, Hunt 2007: 21). As John Bouvier explains in the nation’s first legal lexicon, A Law Dictionary Adapted to the Constitution and Laws of the United States of America, “in law, man and person are not exactly synonymous terms.”4 Whereas “any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c.,” Bouvier elaborates, legally, “a person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes.” A human being is a particular bundle of fluids and tissues; legal persons, by contrast, are varying bundles of rights and duties, powers and obligations. Perversely, it is the very naturalization—the humanization and thus racialization—of the artificial slave person that leads us, obliquely, to the carceral present.
To illustrate these claims, this article examines a seldom-discussed slave case, United States v. Amy (1859). The case was tried in Richmond, Virginia, before a circuit-riding Supreme Court chief justice Roger B. Taney two years after his infamous decision in Dred Scott v. Sandford (60 U.S. 393 ). United States v. Amy demonstrates that in the antebellum period it was not only insightful black and brown critics of American racism who took “the humanness of African Americans as a given” (Pratt 2016: 2). Rather, the case reminds us, slavery was premised on that assumption. Centering on the figure of the legal person rather than the human or the citizen, United States v. Amy alerts us to the lethal legacy of slave personhood as a debilitating mixture of civil death and criminal culpability.
Nowhere, perhaps, is that legacy more evident than in viral videos of police misconduct. And nowhere, I suggest, do we see a more vivid counterassertion of black civility than in the dash cam video of the late Sandra Bland’s principled, outraged response to her pretextual traffic stop and subsequent arrest by State Trooper Brian Encinia in Waller County, Texas. The article closes, then, by considering Bland’s arrest and death in custody in the context of her own and other African Americans’ efforts to achieve and maintain a civil presence in an American law and culture where black personhood remains legible primarily as criminality. For too many African Americans, this Ellisonian dilemma of being caught between a “hypervisible” criminal culpability and an invisible civil capacity is, poet Claudia Rankine (2014: 49) suggests in her “American lyric,” what it means to be a Citizen.
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Amy was enslaved by Samuel W. Hairston, of Patrick County, Virginia (Quarterly Law Journal 1859: 163). She was indicted under a federal statute against mail theft for stealing “letters” (apparently “with . . . money in them”) from that county’s post office (202). Beyond this brief, mysterious, and almost certainly misleading glimpse, the case tells us nothing about Amy or her experiences. It does, however, provide a great deal of insight into the intertwined cultural and legal logics of slavery at the moment of its fullest doctrinal development in the United States. Specifically, the case illustrates that slaveholders recognized and consciously exploited the humanity of the enslaved, even as it suggests how criminality, the attribute that enabled law to recognize the enslaved person as a responsible legal agent, became attributed to the African American collective, free and enslaved, before and long after the Civil War.
United States v. Amy provides the rare opportunity to observe a group of white male southern legal professionals, all of whom represent slaveholding interests, as they debate not only the contours of slave personhood but, remarkably, the relationship of that legal artifice to humanness. John Howard, speaking “for the owner of the defendant,” sought to protect Hairston’s property interest in Amy by mounting the defense that “a slave is not a ‘person’ amenable to the act” (Quarterly Law Journal 1859: 164). (The case report paraphrased the March 3, 1825, federal statute thus: if “any person shall steal a letter from the mail, the offender shall, upon conviction, be imprisoned no less than two nor more than ten years”; quoted at 163). In other words, Howard argued that Amy’s enslaved status should shield her from criminal prosecution as a responsible legal person. James D. Halyburton, the presiding judge, convicted Amy of the theft but purposely overruled this point of law so as to enable review by Chief Justice Taney. Taney, of course, had provoked national controversy with his gratuitous observation in Dred Scott that by the time of the nation’s founding, Americans of African descent had “been regarded as . . . so far inferior, that they had no rights which the white man was bound to respect” (Dred Scott v. Sandford 60 U.S. 393 , at 407). Taney’s obiter dictum ignored, but by no means ended, what a growing cohort of legal historians have shown to be pervasive everyday legal activity by both enslaved and free African Americans throughout the United States (Welch 2018; Jones 2018). Indeed, Amy’s very appearance at the Fourth Circuit Court in Richmond spoke to the juridical “respect” occasionally accorded to the procedural “rights” of enslaved defendants. Taney upheld Amy’s conviction, ruling that, in keeping with the language of the US Constitution, the federal statute’s use of the word “person . . . may be construed as including slaves” (Quarterly Law Journal 1859: 163). As Taney noted, the case hinged on “the two-fold character which belongs to the slave” as “person and also property” (199). What was not in dispute was Amy’s humanness, which each of the participants not only took for granted but expressly affirmed over the course of the proceedings.
In taking up the question of slave personhood, Richmond’s Fourth Circuit addressed itself to one of the foundational categories of Western law. Under Roman law, slave and other forms of personhood were not “metaphysical” but “purely technical and functional” categories (Mussawir and Parsley 2017: 48). Thus, although “slaves” constituted one of the two main divisions of the law of persons in Gaius’s Institutes (c. 161 CE), slaves could also be treated as “things” (1.9–12, 2.1, 2.13). Persona was literally a term of art, purportedly deriving from the ancient Greek prosōpon, the mask an actor used to indicate a particular character or role. Personhood, Alain Pottage (2002: 275) and other legal theorists insist, remains the product of “legal rhetoric as techne; that is, as an art, technique, craft, or strategy.” For Edward Mussawir and Connal Parsley (2017: 46), this origin story “expresses a fundamental element crucial to an emergent legal science: the difference that is necessary in law in order to separate the identity of a real living subject from that of a purely artificial, fabricated role that is reserved and instituted at the level of juridical existence.” Prior to the medieval insertion of the person into a “transcendent, theological, metaphysical, or meta-juridical frame” (47) they note, “the Roman law did not mould its persons on a pre-existing biological human substrate” (49).5
At the current moment, when it is the artifice of legal personhood that provokes outrage—typically, in the form of the corporation—it feels counterintuitive to suggest, as Mussawir and Parsley do, that “calls for an outdated law to ‘better reflect life’” may “have limitations both as jurisprudence and as political action” (57). Analysis of United States v. Amy addresses this seeming contradiction by examining the legal, political, and cultural effects of naturalizing the particular form of legal personhood assigned to the slave. As we shall see, the definitive African descent of the slave person in American law and culture encouraged the ongoing identification of African Americans with a civilly incapacitated legal agency primarily legible as criminality.
Like other antebellum legal thinkers, Timothy Walker, author of the first US legal textbook, saw the growing abstraction of legal personhood as directly proportionate to the increasing democratization of American law. Unlike in England, Walker noted in his Introduction to American Law: Designed as a First Book for Students (1846: 205), the American law of persons had achieved an exemplary democratic simplicity “in consequence of our entire abolition of privileged orders.” The American “doctrine of equality” assumes that “in theory at least, all men start equally; they are born with equal rights; and their distinctions in after life, are mainly made by themselves” (205). The exceptions that he would go on to enumerate—wives, slaves, Indians—confirm legal historian Susanna L. Blumenthal’s (2016: 55) observation that, in fact, the nineteenth-century American “legal model never entirely displaced the traditional English law of persons. American jurists continued to speak in terms of status relations.” The difference was that instead of artificial distinctions, status now derived from “what were regarded as natural differences in people’s mental and physical attributes” (7). In this way Americans’ “gradual dismantlement of a ‘law of persons’ with roots in feudal society” enabled their creation of a “default legal person” (7). Abstracted as it was, this model of a “free and independent man” was presumed to be male, white, able-bodied, and of sound mind (7). This default legal person stood in contrast to his variously incapacitated and subordinated counterparts such as the wife, the slave, and the child—each of which, of course, represented a form of legal personhood.
Under Roman law, natural attributes such as age and sex could determine slave status for the purpose of manumission or under the doctrine of partus sequitur ventrem (the condition of the child follows that of the mother). But, as Thomas Jefferson claims in Notes on the State of Virginia (1788), Roman slaves were distinguished from the master class only by “condition,” not “nature” (152). Whereas Roman slavery was, for Jefferson and others of like mind, merely a matter of formal status, American slavery grounded that status in natural difference. “Among the Romans, . . . [t]he slave, when made free, might mix with, without staining the blood of his master,” explains the likely father of Sally Hemings’s children (154). “But with us,” Jefferson continues, the emancipated slave, ideally, “is to be removed beyond the reach of mixture” (154). As the legal artifice of slave personhood became naturalized, it became increasingly identified with “the blacks on the continent of America,” whether enslaved or free (151).
We can observe this naturalization-cum-racialization in the best-known summary of the doctrine Taney alludes to in United States v. Amy as “two-fold character.” In number 54 of the Federalist Papers (1788), Virginian James Madison, in the persona of “Publius,” addresses the US Constitution’s already controversial three-fifths clause, which counted a state’s slave population at that fraction of the free population in the apportionment of taxation and representation. Publius rejects the assumption that “slaves are considered merely as property, and in no respect whatever as persons” (Madison, Hamilton, and Jay 1988: 332). Because “they partake of both these qualities,” he maintains, the “federal Constitution” correctly follows state and local law in viewing slaves “in the mixed character of persons and of property” (332). He goes on to explain, “in being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another—the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property” (332; emphasis added).
Criminality resuscitated slave personhood from this civil death. As Publius goes on to clarify, “in being protected . . . against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others—the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property” (332). In practice, the formal protection of slaves against violence spoke more to their value as property than their status as persons (Wahl 1998: 126–320). In any case, slaves’ potential to become perpetrators of unlawful violence necessitated punitive recognition of their responsibility to the rule of law. Reanimated as a criminally responsible defendant, the civilly dead slave is no longer to be seen “as a part of the irrational creation” or “a mere article of property” but “as a member of the society” and “as a moral [i.e., social] person.” Because legal personhood comprises duties as well as rights, the officially administered punishment of enslaved offenders amounted to punitive recognition of their accountability to the political community of which they, in the breach, were retroactively acknowledged to be members (DeLombard 2012).
Publius appears to adopt Roman law’s “purely technical and functional” approach to legal personhood, slave personhood in particular. Thus far, the account of the slave’s “mixed character” resists naturalizing what appears to be a gender- and even race-neutral category of legal personhood (Madison, Hamilton, and Jay 1988: 332). In fact, in the United States as in the colonies, slave personhood was born from coupling legal classifications of sex and race. The doctrine of partus sequitur ventrem, combined with the restriction of bound servitude to those of African descent, naturalized a matrilineal racial blackness as at once the purported cause and a very real effect of slave personhood (see Spillers 1987). In Federalist 54, however, Publius only once identifies “Negroes” with the “slaves” alluded to but not named by the Constitution. Publius insists that it is with “great propriety” that the Constitution “views” slaves in “the mixed character of persons and property,” because that is “the character bestowed on them by the laws under which they live”—the same state and local “laws [that] have transformed the Negroes into subjects of property” in the first place (332). Conversely, Publius reminds his readers, “if the laws were to restore the rights which have been taken away, the Negroes could no longer be refused an equal share of representation with the other inhabitants” (332). Publius’s references to, alternatively, commodified or rights-bearing “Negroes” confirms the law as “techne; . . . as an art, technique, craft, or strategy” (Pottage 2002: 275) that produces different kinds of artificial legal persons. To identify “Negroes” with the “mixed character” of slave personhood was, then, to associate African Americans not only with civil incapacity but with criminality.
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Amy, Chief Justice Taney’s ruling confirmed, was just such a civilly dead, criminally culpable person. What makes the case so revealing is the opposing attorneys’ unexpected and unorthodox inquiry into the relevance of the slave’s humanity to her legal personhood. John M. Gregory, district attorney for the United States, had an easy task. The federal prosecutor had only to remind the court of the well-established legal doctrine that “slaves are property; but it is equally true that they are recognized in all modern communities where slavery exists as persons also,” noting that “they are recognized as persons in every State in the Union, and punishable as persons for the commission of offences in violation of the penal laws” (Quarterly Law Journal 1859: 169). Gregory enlivened his otherwise self-evident doctrinal argument, however, by abruptly departing from professional convention. “I deem it would be a rather useless waste of time to refer more particularly to authorities,” he asserted, adding, “I cannot prove more plainly that the prisoner is a person, a natural person at least, than to ask your honors to look at her! There she is. She is beyond doubt a human being, and it is not pretended she is not of sound mind” (170). With this impassioned appeal to vernacular common sense—that a person is a human—the US district attorney exposed the artifice of legal reasoning, the fiction of slave personhood in particular. He did so, we should recall, not to assert Amy’s inherent rights and equality as a fellow human being but to win a ruling that would merely (and temporarily) change the terms of her captivity, from private enslavement to federal custody.
John Howard, the defense attorney, was quick to point out “the great mistake into which . . . the learned counsel for the United States has fallen” in making “profert of Amy in open court” “as if in triumphant and conclusive proof that a slave is a person, a natural person, at least, a human being” (170). As Howard pointed out, the prosecution’s unorthodox resort to Amy’s embodied humanness in place of the relevant legal authorities “entirely overlooks a broad, radical, and most important distinction, which is the basis of all our civil and criminal jurisprudence in respect to slaves”: this is the distinction between “the legal character and attributes of the African slaves in the United States, who are purely chattel slaves—with their character and attributes as natural persons” (170). As we have seen, this crucial distinction was that between slaves’ obvious humanness and their status as a particular kind of legal person. Howard’s argument—that Amy was not indictable as a “person” under the terms of the statute—would lead him to fudge the terms of this distinction.
The challenge facing the defense attorney was well-nigh insurmountable: to persuade the court to make what was, in effect, an exception to the doctrine of culpable slave personhood so as to ensure that Hairston would retain his property right to Amy and her labor. Briefly, Howard sought to prove that Amy was not a legal person under the statute by arguing that not only does “the utter civil non-entity of the slave” deprive her of any rights under the law but it also removes her from any legal obligations or duties (177). This formulation flew in the face of the doctrinal logic of the slave’s mixed character. Howard therefore sought to limit jurisdiction over the latter to state law. States’ punitive recognition of criminous slaves, Howard argued, formed “part of their municipal polity and police . . . , upon the idea that by tying the self-interest of the master the more closely to the common-weal, greater diligence would be encouraged on his part, alike by coercion and kind treatment[,] to keep his slaves in due subordination and goodly courses” (193). Basically, Howard sought formal authorization for what was commonly referred to as “plantation justice.” He envisioned private, extralegal disciplinary control over slaves that would be minimally under the purview of state governments, while being protected from oversight by the federal government—whose own twofold character as a union of slave and free states was, by 1859, perceived as a dangerous threat to slaveholders’ property. Nowhere did such a brief require any consideration of Amy’s humanness; at its most persuasive, Howard’s argument addressed how punitive recognition of Amy’s legal obligations as a criminally culpable person would have impinged on Hairston’s right to her as his property.
Howard’s awareness of the irrelevance of Amy’s humanness to the legal question of her personhood did not, however, prevent him from emphasizing her humanity so as to entrench her property status. The prosecution’s unorthodox, off-topic introduction of humanness into the legal dispute over slave personhood prompted the defense attorney to a revealing admission. “It is true,” Howard acknowledged, “that the negro did not cease to be a natural person, a human being, by becoming a slave” (172). Indeed, he maintained, “the very idea of a slave is a human being in bondage. A slave is, and must, of necessity, continue to be a natural person, although he may be a legal chattel” (172). Later, Howard offered the following remarkable concession: “If it be said that although a chattel, he [the slave] cannot be divested of his characteristics as a natural person, a human being,—a human body inspired with intellect, feeling, volition—that is conceded—(it is that which makes him so valuable a chattel)” (176). Howard’s own tangential observations on the slave’s humanness merely articulate what slaveholding practice had long made clear: race slavery involved the profitable exploitation of recognized black humanity.
Howard’s resort to the animal kingdom to elaborate his point would appear to complicate this reading. After he had acknowledged that the slave’s value lies in his or her distinctly human “intellect, feeling, and volition,” Howard argued that “the natural character of the chattel must determine the manner and kind of treatment it receives from its owner or others. Thus a horse, or a dog, a slave, or a pet lamb, would not be treated as a bale of goods” (176). Disturbing as Howard’s bland analogy of enslaved human beings to nonhuman pets and livestock is, it alerts us to the need for analytical precision. Howard’s white supremacist ideology, in keeping with that of the slaveholding class he literally represented, was far more insidious than abolitionists and many modern critics would have it. Howard and his slaveholding client Hairston did not justify their inhuman treatment of the enslaved Amy by refusing to recognize her as a fellow human being—as “a Woman and a Sister,” in the words of the abolitionist motto. Instead, as Howard frankly acknowledged, slaveholders consciously exploited the slave’s humanity as “that which makes him so valuable a chattel.” Not unlike today’s prison-industrial complex, antebellum slaveholders cannily extracted profits from the humanity of their black and brown captives while treating them like nonhuman animals.
Repeated assertions to the effect that “New World slavery . . . positioned black subjects as nonhumans” take the humanitarian high ground at the risk of ignoring the conceptual bedrock of American racism (Weheliye 2014: 144n18). United States v. Amy was argued and decided well after the rise of a new scientific racism that sought empirically to establish racial inferiority. Crucially, however, even the most notorious proponents of scientific racism—Samuel George Morton, Josiah Nott, Louis Agassiz, and others associated with the American school of ethnology—argued for racial inferiority within humankind. A polygeneticist like Agassiz (1850: 141–42) understood his task as “to settle the relative rank among these races,” that is, to establish a hierarchy among the “different races of men.” As in Bouvier’s account of legal personhood, scientific discourse in slaveholding America tended to focus its discriminatory, white supremacist energies on ascribing a “status” hierarchy among differently racialized groups of humans rather than on excluding groups from human status. The critical challenge, in Wynter’s (2003: 261–62) terms, is to understand the specific scientific, legal, economic, political, and social forms of stratification that result in the “Black population group” being “still made to occupy the nadir . . . rung of being human.”6
Today, Howard’s analogy of the defendant’s chattel status to that of nonhuman animals would seem to include United States v. Amy in the “archives of dehumanization” (Pratt 2016: 118). In fact, the argument for the defense illustrates how a narrow critical focus on the category of the human can occlude other, more relevant forms of racist subjectification. Consider another instance where Howard appears to slight, if not outright deny, slave humanity in his effort to reject Amy’s culpability as a responsible “person” under the federal statute against mail theft. Howard alludes to “laws against cruelty to animals,” as well as “laws prescribing death or punishment for certain animals in case of dangerous or troublesome insubordination, roving, or ferocity,” to argue that “these laws” do not “recognize any legal or civil rights in the brute creation—[in] the animals protected, or punished” (Quarterly Law Journal1859: 177). “And so,” he analogizes, “with the laws punishing offences committed upon, or committed by slaves. The slave is still but a chattel, in which no legal or civil personal right inheres. The fact that he is protected by the law, or is punished by the law, is no concession to him of legal rights or responsibilities, any more than in the case of other chattels, the accidents of whose natural characteristics are animate existence, and some sort of intelligence, volition, and feeling” (177). The glaring flaw in his analogy is that it was precisely the criminous slave’s “legal . . . responsibilities” under the doctrine of mixed character that distinguished her from the victimized, insubordinate, roving, or ferocious animals whom the law might well protect, confine, forfeit, or exterminate but could not punish.7 As noted, Howard’s professional commitment to defending the property interests of Amy’s master (rather than Amy herself) and thus ensuring her continuing enslavement does not prohibit him from acknowledging her humanity. Indeed, he emphasizes that her humanness is the source of her comparatively high value among other chattels. The irony here is that Howard’s enthusiastic recognition of captive black humanity seeks to realize a vision of near-absolute private control that would reduce enslaved existence to something very like the “bare life” described by philosopher Giorgio Agamben (1998), with the emphatically human slave stripped of legal personhood as its homo sacer.
Howard’s frank acknowledgment of Amy’s humanity while denying her legal personhood brings to mind Hannah Arendt’s concerns regarding the human rights movement that was emerging in the wake of World War II. Of those rendered stateless in early twentieth-century Europe, Arendt (1994: 295) notes in The Origins of Totalitarianism, “innocence, in the sense of complete lack of responsibility, was the mark of their rightlessness as it was the seal of their loss of political status.” If, as she maintains, “the first essential step on the road to total domination is to kill the juridical person in man” (447), the “best criterion by which to decide whether someone has been forced outside the pale of the law is to ask whether he would benefit by committing a crime” (286). Arendt, whose brilliant critique of racist oppression was compromised by her own racism toward people of African descent (Gines 2014), nevertheless offers a helpful clarification of the difference between inhuman treatment and subhuman status. To characterize hereditary slavery as a “crime against humanity,” as she did, was not to say that slaves had been denied their humanity (Arendt 1994: 297). “Slaves still belonged to some sort of human community; their labor was needed, used, and exploited, and this kept them within the pale of humanity,” Arendt argues: “To be a slave was after all to have a distinctive character, a place in human society—more than the abstract nakedness of being human and nothing but human” (297). Just such a reductive acknowledgment of black humanity, she goes on to argue, impeded contemporary African Americans’ civic inclusion as free members of the polity. In modern nation-states built on the indispensable artifice of political equality (the origin story that “all men are created equal”), Arendt suggests, racism manifests itself in an inability to see those perceived as ethnically “alien” as fellow citizens, regarding them instead as mere humans (302). Her case in point is “the Negro in a white community” (302). Excluded from “that tremendous equalizing of differences which comes from being citizens of some commonwealth . . . no longer to partake in the human artifice,” the racial other is reduced to “some specimen of an animal species, called man” (302). This, of course, is exactly what Howard’s catalog of animate, volitional, affective chattels accomplishes in its equivalency of “a horse, or a dog, a slave, or a pet lamb.” In this way humanization becomes a tool of, rather than a shield against, degradation.
More to the point, Howard anticipates slavery’s carceral afterlives when he seeks to “kill the juridical person” in the enslaved by coupling their “complete lack of responsibility” not with the dangerous “innocence” of the stateless but with an innate criminality. Remarkably, in this trial over a slave’s alleged mail theft, it is the attorney for the defense, not the prosecution, whom we find pointedly referring to “the peculiar peccadilloes of theft for which” the “negro slave . . . would seem to be endowed with an inborn genius and proclivity” (Quarterly Law Journal1859: 180). Howard offers these observations about a racial propensity for crime as he seeks to extend “the utter legal incapacity and impersonality of the slave” beyond civil death, to include criminal liability as well (175). His redundant reference to “inborn genius” seeks to transmute the criminal culpability that constitutes artificial slave personhood into a natural “negro” attribute, regardless of condition. Having done so, he can then speak authoritatively of “the broad and complete contrast between the social, civil, and political condition of the dominant and the slave race” (181). The slave is no longer a particular kind of artificial legal person but the representative of a larger “race.” With this understanding, Howard can insist that “so absolute and wide-pervading is the ethnological, civil, social and political difference between the dominant and the subject races—the white American sovereign and the black African slave—that they are not, and cannot be, governed by the same system of penal laws” (179). Howard’s call to limit prosecution to the terms of the relevant slave codes blurs into a call for a separate criminal justice system for “the dominant and the subject races” based on innate “ethnological” differences rather than formal differences in “civil, social,” or “political” standing. Such a bifurcated legal system, of course, need not end with abolition and emancipation.
Regardless of whether Taney shared Howard’s view of an innate black criminality, the chief justice clearly understood that to exempt the enslaved from criminal accountability would pose a threat to legal order. Taney’s brief decision repeatedly emphasizes the dangers that would ensue “if a slave is not within the law” (199). “It is true that a slave is the property of the master,” Taney affirmed. “And it is equally true that he is not a citizen, and would not be embraced in a law operating on that class of persons. Yet, he is a person, and is always spoken of and described as such in the State papers and public Acts of the United States” (198). Even if we share the commitment to identifying, animating, and cultivating “alternative forms of life that elude law’s violent embrace,” United States v. Amy should alert us to how the coconstitutive legal and cultural processes of racialization operate by differentiating how various groups of humans are held “within the law” as persons, rather than biopolitically “disciplin[ing] humanity into full humans, not-quite-humans, and nonhumans” (Weheliye 2014: 127). The slave partook of the human artifice not as citizen but as a uniquely disempowered, obligated juridical (or legal) person. Taney’s ruling affirms, then as now, the disciplinary necessity of maintaining a racist legal order by the ascription of a racialized personhood in which criminal culpability is the counterpart to civil death.
As one of the nation’s most infamous expounders of racist legal thought, Taney joined other white, southern legal professionals in taking slaves’ humanity for granted, understanding that it was the contours of slave personhood that mattered most for the preservation not only of slavery but of the white supremacist nation built on it. Despite its unorthodox deviation into the realm of the human, United States v. Amy makes it clear that from both a cultural and a legal perspective the humanity of enslaved African Americans was key to “the very idea” of slavery, as well as to the enhanced value of that particular form of property. Far from liberating, the recognition of enslaved black humanity was enlisted on both sides in efforts to intensify the slave’s captivity, either as federal prisoner or as private homo sacer. Revealing as the tangential discussion of slave humanity is in United States v. Amy, the case suggests that slavery, like its carceral analogue, rested on the peculiar fractional, and fracturing, logic of a personhood that combined civil death with criminal culpability.
If United States v. Amy is the prism through which we look at the political present, it is in the argument for the defense that we see the artifice of slave personhood bending in the direction of the human. Howard may have lost the case, but the defense attorney’s effort to eliminate even the punitive legal agency of the artificial slave person while redefining criminality as an inborn racial trait was a prescient one. Today, the same logic threatens to place African Americans practically, if not formally, “outside the pale of the law,” consigned by the police power to the “rightlessness” that Arendt identifies with “loss of political status.”
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It has become commonplace to attribute the racialization of crime and the criminalization of race in the United States to the post-emancipation transfer of a captive African American population “from plantation to prison” in the aftermath of the Civil War (Oshinsky 1996; Green 2008; DuVernay 2016). After all, the Thirteenth Amendment provides that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States” (U.S. Const. amend XIII, §1). In fact, the story begins nearly a century earlier, when, soon after the nation’s founding, the new states of the Northeast began gradually to abolish slavery (DeLombard 2012: 51–163). This “first” Reconstruction coincided with the equally gradual rise of the penitentiary as an alternative to public corporal punishment. Not coincidentally, by the time the Pennsylvania State Penitentiary for the Eastern District opened its doors in 1829, “Prisoner Number One” in the world’s best-known penal experiment was an eighteen-year-old African American man, Charles Williams (Eastern State Penitentiary n.d.). A literate black farmer from Harrisburg, Williams was sentenced to “two years confinement with labor” for the theft of “one twenty-dollar watch, one three-dollar gold seal,” and “a gold key” (ibid.). When the prison admitted its first female prisoners two years later, all four were African American (Patrick 2000: 363). While it is unquestionably true that “the presumptive identity of Black men [and women] as ‘slaves’ evolved into the presumptive identity of ‘criminal,’ and we have yet to fully recover from this historical frame” (Stevenson 2016: 12), we need to realize that this process commenced not with the Thirteenth Amendment (1866) but at the end of the previous century, with the nation’s founding, the legal doctrine of the slave’s mixed character, and the first Reconstruction.
The opposing lawyers’ digressive affirmations of slave humanity in United States v. Amy throw into sharper relief the increasingly naturalized slave personhood that not only stood at the heart of this nearly forgotten case but that continues to inform African Americans’ status in US law and culture today. Obscure though the case may be, United States v. Amy nevertheless suggests that the continuum connecting slavery to today’s mass incarceration, police misconduct, and racist profiling is the continuing refusal to see African Americans as persons “within the law” in civil rather than criminal terms (see Hartman 1997: 125). For too many Americans, what we might after Tavia Nyong’o and Kyla Wazana Tompkins (2018) call black “counter-civility” remains the inscrutable obverse of a personhood that in US law and culture has historically been legible only as criminality.
Since the early colonial period, African Americans plaintiffs have persistently countered such legal-cultural ascription by exacting both official and community recognition of their standing in a steady stream of everyday civil proceedings. From recording title deeds to suing common carriers, African American civil litigants forcefully countered the legal and cultural identification of black personhood with civil incapacity and criminal culpability (see Welke 2001; Welch 2018; and Jones 2018). Black counter-civility insists on African Americans’ standing as empowered legal (rather than natural) persons bearing the civil rights that are traditionally distinguished from the duties or obligations associated with criminal law. As such, this concept carries the “various significations” that Bouvier reminded readers of his Law Dictionary emanated from the word civil. When “used in contradistinction to barbarous or savage,” it does not refer to mannerly decorum but, rather, to “a state of society reduced to order and regular government; thus we speak of civil life, civil society, civil government, and civil liberty.” Bouvier goes on to explain that “it is sometimes used in contradistinction to criminal, to indicate the private rights and remedies of men, as members of the community, and in contrast to those, which are public and relate to the government; thus we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction.”8
Black counter-civility should not, therefore, be confused with the “politics of respectability” theorized by historian Evelyn Brooks Higginbotham (1993). Citing the admonitions of Bill Cosby and Barack Obama, Dyson dismissively glosses this “brand of moralizing activism” as “the belief that good behavior and stern chiding will cure black ills and uplift black people and convince white people that we’re human and worthy of respect” (Dyson 2016: 199; see also Alexander 2012: 212–17, 225–28). Rather than targeting the self-fashioning and conduct of African Americans, black counter-civility directs scrutiny toward the actions of others, often whites, whom it seeks to hold accountable under the rule of law.
We see a stark dramatization of how this black counter-civility differs from a politics of respectability in the dash cam video of motorist Sandra Bland’s encounter with State Trooper Brian Encinia in Waller County, Texas. On July 10, 2015, Encinia pulled Bland over for an alleged failure to signal. When Bland questioned the trooper’s authority to order her first to put out her cigarette, then to step out of her car, Encinia threatened her with a Taser, maneuvered her off-frame, violently rendered her supine, handcuffed her, and jailed her at $5,000 bail. Three days later she was found hanged in her cell.
The circumstances that brought Bland back to Texas represent a determined effort to assert and maintain a civil personality free from slavery’s legacy of criminalized blackness. It was widely reported that Bland had returned to Texas from Chicago to take a job at her alma mater, Prairie View A&M University. Less well known is that she had driven more than one thousand miles to accept a temporary position at $13.80 per hour, having accumulated “$7,579.00 in court fines resulting from five traffic stops in various Chicago suburbs (including a DUI)” (Smyser 2015). Bland had seen firsthand how so-called prison profiteers benefit from the mass incarceration of people of color in the United States (Herivel and Wright 2007). In 2010, an insolvent Bland elected to “sit out” her traffic fines with a thirty-day stint in Houston’s Harris County Jail (Smyser 2015). This was during the period when, under scrutiny from the US Department of Justice for civil rights violations, the perpetually overcrowded public facility routinely transferred overflow prisoners to private prisons run by LaSalle Corrections and Emerald Enterprises (Tilove 2012). Strategically opting for incarceration as an alternative to payment, Bland nevertheless helped to generate profit for corporate investors by contributing to the overcrowding that authorized outsourcing to private facilities. Like so many people of color targeted by the police, Bland found her options increasingly limited as a result of the growing trend for cost shifting as a form of economic sanction against defendants—guilty or not.9 Bland’s misdemeanors made it hard for her to find steady work. When Encinia pulled Bland over, however, her most recent period of unemployment was the result of conscience, not presumed criminality. Newly politicized by Black Lives Matter, Bland had made the principled decision in April 2015 to quit her secure, if low-paying, administrative assistant job at Cook’s Correctional (“Innovative Food Service Products for Corrections”), on the basis of what we might call racial conflict-of-interest (Nathan 2016).
The legal and media inquiries into the three days leading up to Bland’s death inadvertently reveal the extent to which her experience at Waller County Jail was structured by her potential profitability as a carceral subject. A video distributed by the Waller County sheriff shows the indigent Bland using the jail’s staff telephone “as a courtesy” to make six or seven free calls to friends and family in an effort to raise the $515 bond for her $5,000 bail (“Motion,” Reed-Veal v. Encinia S.D. Tex. , 9). Her mobile phone confiscated, Bland was likely not in a position to use the somewhat more private phone in her cell, which operated through a “pin account (charged to the detainee)” or a $14.99 per-call collect charge (Reed-Veal v. Encinia S.D. Tex. , 2; see also Nathan 2016). Just one of the many revenue streams that make even public prisons and jails profitable for corporate investment, such extortionate telecommunications services had by 2015 provoked sufficient public outrage to prompt the Federal Communications Commission to “comprehensive reforms of Inmate Calling Services, . . . to ensure just[,] reasonable[,] and fair rates” (Office of the Federal Register 2015). The long-awaited FCC rule was published on December 18, 2015—five months after Bland’s death. Bland’s last documented contact with staff occurred when she used the cell’s emergency intercom to inquire about using the phone in the cell; told to use her PIN, she did not make a phone call and was found dead roughly an hour later (Nathan 2016). Bland’s experiences with the criminal justice system reveal the carceral afterlives of slavery. Misapprehended on this and likely other occasions as a criminal rather than a civil subject, Bland was a rich source of potential profits in her very human need for shelter, clothing, bedding, food, medical care, and contact with family and friends.
But it is in the disturbing dash cam video of her arrest that Bland engages in the centuries-long tradition of black counter-civility. In the following excerpts from the fifty-minute video released by the Texas Department of Public Safety, Bland makes it clear that she perceives the pretextual stop as profiling:
Encinia: You mind putting out your cigarette, please? If you don’t mind?
Bland: I’m in my car, why do I have to put out my cigarette.
Encinia: Well, you can step on out now. . . .
Bland: Why am I . . .
Encinia: Step out of the car!
Bland: No, you don’t have the right. No, you don’t have the right.
Encinia: Step out of the car.
Bland: You do not have the right. You do not have the right to do this.
Encinia: I do have the right, now step out or I will remove you.
Bland: I refuse to talk to you other than to identify myself. [crosstalk] I am getting removed for a failure to signal? (Grim 2015)
Bland challenges Encinia’s arbitrary demand that she put out her cigarette by asserting her rights as a property owner. Encinia rejects her claim when he replaces the possessive pronoun (Bland’s “step out of my car”) with the definite article (“step out of the car”). In response to her continued questioning of his authority, Encinia threatens to use force:
Encinia: Step out or I will remove you. I’m giving you a lawful order. Get out of the car now or I’m going to remove you.
Bland: And I’m calling my lawyer.
Encinia: I’m going to yank you out of here. (Reaches inside the car.) . . .
Encinia: I will light you up! Get out! Now! (Draws stun gun and points it at Bland.)
Bland: Wow. Wow. (Bland exits car.) (Grim 2015)
By reluctantly complying with Encinia’s order-cum-threat, Bland does not engage in a politics of respectability. Far from it. Rather, Bland’s vehement, expletive-laced exchange with Officer Encinia offers a model of counter-civility:
Bland: For a failure to signal? You’re doing all of this for a failure to signal?
Encinia: Get over there.
Bland: Right. yeah, lets [sic] take this to court, let’s do this.
Encinia: Go ahead.
Bland: For a failure to signal? Yup, for a failure to signal!
Encinia: Get off the phone!
Encinia: Get off the phone! Put your phone down!
Bland: I’m not on the phone. I have a right to record. This is my property. Sir?
Encinia: Put your phone down right now. Put your phone down! . . .
Bland: Oh I can’t wait ‘til we go to court. Ooh I can’t wait. I cannot wait ‘til we go to court. I can’t wait. Oh I can’t wait! (Grim 2015)
As with her repeated assertion of her procedural rights, Bland’s insistence on defining her phone, her car, and even her cigarette in terms of “property” relations represents a determined effort to retain her status as a civil rather than a criminal person.
Bland did not get the day in court she so ardently anticipated. Like too many other people of color, she did not survive her encounter with law enforcement to answer formally whatever criminal charges could be produced against her, nor was the officer subject to criminal prosecution.10 Bland’s death was ruled a suicide; Encinia was fired and indicted for perjury for lying in his police report; Bland’s family settled their wrongful death suit for $1.9 million; following the settlement, the charges against Encinia were dismissed. In place of the public justice offered by criminal proceedings, the only redress available to Bland’s family—again, like so many others—was through damages in a civil suit (Fisher, Higham, and Hawkins 2015).11 In these circumstances, the slave’s mixed character survives as a chiasmus in which the sole alternative to the civil death of the criminal is a counter-civility that is only posthumously recognizable, through a civil suit for wrongful death.
As the searing example of Bland’s arrest reminds us, black counter-civility has for centuries been misconstrued, willfully or otherwise, as criminality. In 1797 condemned formerly enslaved activist Abraham Johnstone broke with convention in his published gallows “confessions” by refusing to confess his guilt for the murder of his neighbor, “Guinea Negro” Thomas Read. Instead, he implied, he had been framed by two white men who had previously instigated a civil suit between the two black farmers. In his Address . . . to the People of Colour (1797) Johnstone makes it clear that the slave’s mixed character followed him from his Delaware bondage into freedom in New Jersey. Soon after settling onto his leased Gloucester County farm, Johnstone recalled, “I was improving the place fast and doing well for myself, which made me an object of envy and hatred” in the local community—as indicated by the persistent rumors that he’d stolen carpets from a boarding-house keeper and meat from local smokehouses and slaughterhouses (39). He was convicted on circumstantial evidence and hanged on July 8, 1797, for a murder in which a body was never produced. A little more than a century later, slavery reparations activist and organizer Callie House was convicted by an exclusively white male jury on trumped-up charges of mail fraud; House spent November 1917 to August 1, 1918, imprisoned in the Missouri State Penitentiary in Jefferson City before her early release for good behavior (Berry 2005: 188–211). Johnstone and House are just two among legions of African Americans who, since the founding, have had their civil—and often civic—actions literally misapprehended as criminality. Long after the abolition of slavery and the formal end to de jure segregation, many Americans remain unable (or unwilling) to perceive African Americans as persons with civil standing. For too many of their fellow citizens, African Americans’ peaceful occupation of both public and private spaces too often remains legible only as criminality. This failure to identify black civil personality is what prevented onlookers and police officers alike from seeing Tamir Rice as a boy playing in a public park, Dajerria Becton and her friends as teenagers enjoying a pool party, or Philando Castile as a citizen with the right to bear arms.
African American detainees, prisoners, and parolees find that, like their enslaved forebears, their profitability lies in the exploitation, rather than the denial, of their humanity. The various commercial enterprises that have become known as the prison-industrial complex extract their profits from inmates’ distinctly human need for a range of lucrative services, ranging from Cook’s Correctional’s custom-made tableware to exorbitant telecommunications systems that at once provide and restrict access to support networks of friends and family (Haverty 2016). Privatized carceral services such as health care reap gains through rigid cost-benefit accounting of inmates’ all-too-human vulnerabilities (Jacobs 2007; Hylton 2007; Zielbauer 2007). It is cruelly apt, then, that the American Correctional Association should, in the current revision of its original, Reconstruction-era “Declaration of Principles” (1870), give pride of place on its website to “humanity” (ACA n.d.). The ACA’s canny (not to say cynical) participation in humanitarian rhetoric suggests the danger of ignoring the fact that, far from denying black humanity, today’s prison-industrial complex, like historical race slavery, is a financial enterprise purpose-built to extract profits from the conscious, explicit exploitation of that humanity.
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Unquestionably, one of the most important critical contributions of Afrohumanism, or black posthumanism, is “the transformation of the human into a heuristic model and not an ontological fait accompli” (Weheliye 2014: 8). But that very principle requires that we be clear about when the subject of critical inquiry is the human—and when it is not. To understand US slavery and its carceral afterlives, we must attend to the legal person, especially in its avatar as slave person, bearing what Federalist 54 identifies as the mixed character of civilly dead property and criminally responsible person. For it is their fellow Americans’ failure (or refusal) to recognize African Americans in their civil capacity that, repeatedly, horrifically, creates all those deadly situations characterized by the excessive use of force by law enforcement.
I adopt the term situations from the video series by poet Claudia Rankine and her husband, documentary photographer John Lucas (2016). Their Situations capture those moments when African American citizens are subject to the hyperscrutiny and misapprehension that leads to black and brown body parts being “criminalized already [into] weapons,” which in turn leads to the traumatic repetition of the situation—“flashes, a siren, a stretched-out roar”—in which “you are not the guy and still you fit the description because there is only one guy who is always the guy who is always fitting the description” (Lucas and Rankine 2016; Rankine 2014: 101, 105).12 “Criminalized already”: that is not the description of a dehumanized animal—animals are not currently subject to prosecution—but to a particular form of personhood, one with its roots in a slavery that, like today’s prison-industrial complex, exploited human beings as human beings for profit while rendering them, in Howard’s words, “utter civil non-entit[ies].” Nor is it only “the guy” under the flashing light of the police car. It is, Rankine (2014: 34) reminds us, Serena Williams having to ask interviewer Piers Morgan, after winning the 2012 Olympic gold medal for the United States in women’s singles tennis, “if she looks like a gangster to him”—and being told, “Yes.” (This, after Williams was reviled for Crip-walking in her impromptu victory dance.)
In her “American Lyric,” Rankine enfolds these moments of criminalized hypervisibility within the countless everyday occasions when black men and women are utterly invisible as civil persons to their fellow Americans. Rankine deftly limns this failure to recognize black civil presence in a scene of a fellow customer’s inadvertent—if not exactly innocent—line jumping at the pharmacy: “Oh my God, I didn’t see you . . . no, I really didn’t see you” (77). It is in such instances of Ellisonian invisibility, as much as in the misapprehension of black counter-civility for criminality, that we glimpse the thriving, albeit deadly, afterlives of slavery.
“Within the text of the law there is an afterlife of slavery” (Best 2004: 13). (But see Best 2012, discussed below. This article was in press upon the publication of Best 2018; I was therefore unable to frame my account of counter-civility as a response to Best’s very persuasive criticism of scholarship on civil death as one of the afterlives of slavery.) Rather than focusing on embodied persons in the context of property relations (Hartman 1997; Best 2004; Allewaert 2013; Luck 2014), my larger project builds on the scholarship of the “mixed-character” doctrine (Gross 2000; Dayan 2002; Dayan 2011: 39–70, 140–76) to explore how the naturalization of slave personhood has at once enabled and limited the democratization of status—civil standing, in particular—in American law and culture.
Of course, the concept of the human is itself constantly shifting. See Arendt 1994: 298; and Boggs 2013: 24, 27. Cristin Ellis (2018: 4) questions the critical stress on “recognition,” making the excellent point that “racism functioned, in the antebellum context . . . to justify indifference to the fact of Black humanity. For under its empirical redescription, (biological) humanness strictly vouches for a basically physiological commonality across the human species that makes no definite claim about the moral equality of all members.” My project focuses on the terms of recognition—that is, of the status of persons rather than biopolitical membership in the (always shifting) category of the human.
Thus, in his inquiry into this very question, David Brion Davis (2015: 17) is careful to define dehumanization in terms of status as much as of biopolitical inclusion: “[It is] the eradication not of human identity but of those elements of humanity that evoke respect and empathy and convey a sense of dignity. Dehumanization means the debasement of a human, often the reduction to the status of an ‘animalized human,’ a person who exemplifies the so-called animal traits and who lacks the moral and rational capacities that humans esteem.”
John Bouvier, A Law Dictionary [ . . . ], rev. 4th ed. (1852), s.v. “person.”
My approach diverges from that of Monique Allewaert (2014: 13), who, without contending with this longer legal history, emphasizes this biological substrate to theorize the “parahuman body of the slave person” and does not address the specific combination of rights and duties that constitute the legal artifice of slave personhood.
Although here Wynter (2003: 261) characterizes “the Black population group” as occupying the lowest rung of the human ladder, elsewhere she speaks of racial exclusion to sub-/nonhuman status. This ambiguity is captured by her designation “Human Other” (266), which in some places seems to suggest inclusion within the category of the human and elsewhere its definitive opposite. Although Wynter’s magisterial survey brilliantly summarizes and integrates a range of historical periods and ideologies, the frequent shifts between a “barely human” (309) status and “not-quite-humanness” (301) does not seem to correspond to the particular epochs Wynter considers.
On slave personhood in the context of the English common law of deodands, see DeLombard 2012: 58, 331n44.
John Bouvier, A Law Dictionary [ . . . ], 2nd ed. (1843), s.v. “civil.”
Bland was charged with assaulting a public servant on the basis of Encinia’s (false) claim that she kicked him (Montgomery 2015). For the transcript of Encinia’s discussion with his sergeant of how to charge Bland, see Hager 2015.
In addition to the settlement, in 2017 Bland’s family achieved passage of the Sandra Bland Act in the Texas legislature, which “mandates county jails divert people with mental health and substance abuse issues toward treatment, makes it easier for defendants to receive a personal bond if they have a mental illness or intellectual disability, and requires that independent law enforcement agencies investigate jail deaths” (Silver 2017).
Rankine’s line echoes the trenchant critique offered by Tyquan Brehon, who estimates being “unjustifiably stopped by the police more than 60 times” before he turned eighteen: “They never say, ‘This is why I’m stopping you.’ When you’re young and you’re black, no matter how you look, you fit the description” (quoted in Dressner and Martinez 2012).