0521806844 cambridge university press race citizenship and law in american literature jan 2002

This page intentionally left blank RACE, CITIZENSHIP, AND LAW IN AMERICAN LITERATURE In this broad-ranging and powerful study, Gregg Crane examines the interaction between civic identity, race, and justice in American law and literature Crane recounts the efforts of literary and legal figures to bring the nation’s law into line with the moral consensus that slavery and racial oppression were evil By documenting an actual historical interaction central both to American literature and American constitutional law, Crane reveals the influence of literature on the constitutional discourse of citizenship Covering such writers as Harriet Beecher Stowe, Ralph Waldo Emerson, and Frederick Douglass, and a whole range of novelists, poets, philosophers, politicians, lawyers, and judges, this is a remarkably original book, one that will revise the relationship between race and nationalism in American literature G R E G G D C R A N E is Assistant Professor of English at Miami University He has been a member of the State Bar of California since  He has published in American Literary History, American Literature, Nineteenth-Century Literature and Hastings Constitutional Law Quarterly CAMBRIDGE STUDIES IN AMERICAN LITERATURE AND CULTURE Editor Ross Posnock, New York University Founding editor Albert Gelpi, Stanford University Advisory board Sacvan Bercovitch, Harvard University Ronald Bush, St John’s College, Oxford University Wai Chee Dimock, Yale University Albert Gelpi, Stanford University Gordon Hutner, University of Kentucky Walter Benn Michaels, University of Illinois, Chicago Kenneth Warren, University of Chicago Recent books in this series  GIBIAN Oliver Wendell Holmes and the Culture of Conservation  BARRISH  RACHEL BLAU DUPLESSIS  KEVIN J HAYES American Literary Realism, Critical Theory and Intellectual Prestige – Genders, Races and Religious Cultures in Modern American Poetry, – Poe and the Printed Word  JEFFREY A HAMMOND The American Puritan Elegy: A Literary and Cultural Study  CAROLINE DORESKI Writing America Black: Race Rhetoric and the Public Sphere  ERIC WERTHEIMER Imagined Empires: Incas, Aztecs, and the New World of American Literature, –  EMILY MILLER BUDICK Blacks and Jews in Literary Dialogue  MICK GIDLEY Edward S Curtis and the North American Indian, Inc  WILSON MOSES Afrocentrism, Antimodernism, and Utopia  LINDON BARRETT Blackness and Value: Seeing Double  LAWRENCE HOWE Mark Twain and the Novel: The Double-Cross of Authority  JANET CASEY Dos Passos and the Ideology of the Feminine  CAROLINE LEVANDER Voices of the Nation: Women and Public Speech in Nineteenth-Century American Literature and Culture RACE, CITIZENSHIP, AND LAW IN AMERICAN LITERATURE BY GREGG D CRANE           The Pitt Building, Trumpington Street, Cambridge, United Kingdom    The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © Gregg D Crane 2004 First published in printed format 2002 ISBN 0-511-04185-3 eBook (netLibrary) ISBN 0-521-80684-4 hardback ISBN 0-521-01093-4 paperback For Leslie and Zoe Notes to pages –           Adams, President John Smith, pp , ,  Ibid., pp ,  Friedman, The Radical, pp  Hixson notes, as others have, that “the final abandonment of the Negro by his Northern supporters and the appearance of systematic racial proscription in the South did not occur in the supposedly callous and corrupt s; rather, they accompanied the rising tide of reform in the s, and they reached their highest point at the zenith of progressivism during the administration of Woodrow Wilson.” Hixson, Moorfield Storey, p  In selling the common law model, the legal profession was motivated to some extent by self-interest If the law is simply the language of political power, the special, autonomous aura of law vanishes and with it the legal profession’s claim to be its exclusive interlocutor and expositor Horwitz, The Transformation of American Law: –, p  While Pollock – the Federal Income Tax Case – was before the Supreme Court, Judge John F Dillon, an influential jurist, ardently defended private property in a speech before the New York State Bar Association Dillon accepted “reasonable” taxes imposed, “as a means of raising revenue, but when taxes are imposed as a means of distributing the rich man’s property among the rest of the community – this is class legislation of the most pronounced and vicious type; is, in [a] word, confiscation and not taxation Such schemes of pillage [are] violative of the constitutional rights of the property owner, subversive of the existing social polity, and essentially revolutionary.” Dillon, “Property – Its Rights and Duties in Our Legal and Social Systems,” American Law Review,  (): , – James Coolidge Carter, Law: Its Origin, Growth and Function (New York: G.P Putnam’s Sons, ), p  Ibid., p –, –; Chesnutt, The House Behind the Cedars (Boston: Houghton Mifflin & Co., ), pp – Plessy v Ferguson,  U.S , –,  () Richard Hofstader, Social Darwinism in American Thought (New York: Beacon Press, ), p ; Sumner, “The Absurd Effort to Make the World Over,” in Essays of William Graham Sumner ed Albert Galloway Keller and Maurice R Davie,  vols (New Haven: Yale University Press, ), I: ,  Andrew Carnegie and John D Rockefeller both celebrated the social Darwinist universe of force Carnegie blithely asserted that: “while the law [survival of the fittest] may sometimes be hard for the individual, it is best for the race, because it insures the survival of the fittest in every department We accept and welcome, therefore great inequality of environment.” Quoted in The Columbia Literary History of the United States, ed Emory Elliot (New York: Columbia University Press, ), p  And in a Sunday School address, Rockefeller divined the hand of God behind unregulated competition: The growth of a large business is merely a survival of the fittest The American Beauty rose can be produced in the splendor and fragrance which bring cheer to  Notes to pages – its beholder only by sacrificing the early buds which grow up around it This is not an evil tendency in business It is merely the working-out of a law of nature and a law of God (Quoted in Hofstadter, Social Darwinism, p .)  Hofstader, Social Darwinism, p  Responding to a similar argument made by Justice Lemuel Shaw in Roberts v City of Boston,  Mass  (), Thoreau stated that “the law will never make men free [ I ]t is men who have got to make the law free.” Thoreau’s injunction mandates both a challenge to the law and to the custom that the law expresses “Slavery in Massachusetts,” in Miscellanies (Boston: Houghton Mifflin & Co., ), p  Sumner, Folkways: A Study of the Sociological Importance of Usages, Manners, Customs, Mores, and Morals (Boston: Ginn, ); Plessy,  U.S., p   In a journal entry, Chesnutt foresaw that literature would “pen the way” for black Americans’ “social recognition and equality” by “accustom[ing] the public mind to the idea; and while amusing them to lead them imperceptibly unconsciously step by step to the desired state of feelings.” As quoted in Williamson, Crucible of Race, p   Sundquist, To Wake the Nations, pp –; Williamson, Crucible of Race, pp –  Williamson, Crucible of Race, pp –, –  As William Andrews points out, many of the novel’s major figures are based on actual participants in the Wilmington Race Riot of  Major Carteret appears to be patterned on Josephus Daniels, editor of the Raleigh News and Observer, conducting an anti-Negro press campaign during the election year of , and General Belmont would seem to be based on one Alfred Moore Wadell, the leader of the racist coup Andrews, Charles Chesnutt, p   Chesnutt, The Marrow of Tradition (Ann Arbor: University of Michigan Press, ), pp – In contrast to the seigneurial society envisioned by men like Carteret and George Fitzhugh, racists like McBane advocated a political system that would be democratic and egalitarian for whites but tyrannical for subordinate classes George M Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, – (Hanover, NH: Wesleyan University Press, ), p   Chesnutt, Marrow, pp , ,   We should note in passing that Chesnutt’s use of liberty of contract as a basis for political and social association also stands as an alternative to the nationalism of Sutton Griggs’s Imperium in Imperio (, reprinted Miami: Mnemosyne Reprinting, ) Griggs’s novel, a descendant of Martin Delany’s Blake (), subscribes to the notion that the possession of majority political power is central to the protection of one’s fundamental rights Hence, the necessity of a black republic, which Griggs imagines being carved out of the U.S in Texas See Wilson Moses, The Golden Age of Black Nationalism (New York: Oxford University Press, ), pp –  Thomas, American Literary Realism and the Failed Promise of Contract, pp –  Chesnutt’s fiction is replete with suggestions of the shift from status to contract For instance, the first short story in The Conjure Woman, “The Notes to pages –                   Goophered Grapevine,” begins and ends in the establishment of a new contractual relation between John, the Ohio businessman transplanted to North Carolina, and Uncle Julius, the narrator of the dialect tales Chesnutt, Collected Stories of Charles W Chesnutt (New York: Mentor, ), pp – Sumner, What the Social Classes, p  Chesnutt, Marrow, p  Horace Kallen, “Democracy Versus the Melting Pot,” Nation,  (February –, ): –, – Sumner, What the Social Classes, pp – Chesnutt, Marrow, pp – An analogous inconsistency was oft noted by opponents to slavery and later Jim Crow that if the black race were truly inferior there would be no need for laws to keep them down See, e.g., Storey, Abraham Lincoln, p  Griggs, Imperium in Imperio, p  Chesnutt, Marrow, pp , –, – Ibid., p  (emphasis added) Ibid., p  (emphasis added) The only version of Manly’s editorial I have been able to locate is a verbatim republication of the editorial in The Wilimington Messenger, October , , p  Woodward, Strange Career, pp , –; Williamson, Crucible of Race, pp – The Wilimington Messenger, October , , p ; Sundquist, To Wake the Nations, pp –; Williamson, Crucible of Race, pp – Walter Benn Michaels, “Local Colors,” MLN,  (): – One may also observe the presence of property as well as contract in Chesnutt’s manipulation of the Manly editorial In a manner similar to Albion Tourgee’s argument in Plessy that separate but equal discrimination deprived Homer Plessy, an octaroon, of a property interest in his reputation as a white man, Chesnutt’s use of liberty of contract cannily invests interracial relations with the value of property that is destroyed by anti-miscegenation laws Walter Benn Michaels, Our America: Nativism, Modernism, and Pluralism (Durham, NC: Duke University Press, ), pp –, – Chesnutt, Paul Marchand, F.M.C (Princeton: Princeton University Press, ), p  Chesnutt viewed Plessy “as epoch making as the Dred Scott decision.” “The Courts and the Negro,” in Essays and Speeches, p  Plessy,  U.S ,  As Morton Horwitz points out, in the nineteenth century legal formalism (what Horwitz calls classical legal thought) was deemed to be inherently neutral and impartial because it did not take into account the particular circumstances facing litigants (as though taking into account the factual particularities of a case would inevitably result in a biased judicial outcome) It was assumed that evenhandedness would be assured in such a system by the abstract nature of judicial reasoning that           Notes to pages – was not swayed by any personal reaction to the potentially inflammatory details of the case Horwitz, The Transformation of American Law: –, pp – Lydia Maria Child, A Romance of the Republic (Lexington: University of Kentucky Press, ), p ; Gertrude Dorsey Brown, “A Case of Measure for Measure,” The Colored American Magazine,  (): –, –,  (): –, –, –, –; Chesnutt, “Mars Jeems’s Nightmare,” Collected Stories, pp – Chesnutt, Marrow, pp , – Plessy,  U.S , ,  Chesnutt, Marrow, pp , ,  Chesnutt’s Dr Burns hails from Philadelphia A  article on the topic of Jim Crow laws used a Philadelphia case to illustrate the typical justification for such laws In W Ches and Phila Ry Co v Mills,  Pa S  (), the Court declared that Jim Crow laws simply follow the “law of the races, established by the Creator himself, not to compel them to intermix contrary to their instincts.” As quoted in Gilbert Thomas Stephenson, “The Separation of the Races in Public Conveyances,” The American Political Science Review,  (): , – Charles Lofgren, in The Plessy Case, and Leon Litwack, in North of Slavery, describe the national prevalence of legal segregation in the nineteenth century See Lofgren, The Plessy Case: A Legal–Historical Interpretation (New York: Oxford University Press, ), pp –; Litwack, North of Slavery: The Negro in the Free States, – (Chicago: University of Chicago Press, ), pp – Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, ), p  Francis Lieber, On Civil Liberty and Self-Government (Philadelphia: J.B Lippincott, ), p  More recently, Stuart Hampshire has sounded a similar theme For Hampshire, the value of a democratic constitution lies not in its expression of the popular will, but rather “in the defense of minorities, not of majorities One needs to ensure, for the sake of justice, that the minorities are properly heard, and that they play their necessary part in the process,” which properly includes a right of veto over certain kinds of governmental or private intrusion Hampshire, Justice is Conflict (Princeton: Princeton University Press, ), p  Storey challenged the blithe acceptance of majoritarianism with the example of such discrete minorities as Jews and blacks: “Can their rights safely be left to be dealt with as pleases a majority of their fellow-citizens in many states? To ask the question is to answer it.” Storey, “The Recall of Decisions,” The Annals of the American Academy of Political and Social Science, (Philadelphia, March ):  H.N Hirsch, A Theory of Liberty: The Constitution and Minorities (New York: Routledge, ), p  The importance of basic norms of proper deportment for black nationalists, such as Sutton Griggs, suggests a general acceptance among late nineteenth-century African Americans that conventions of social Notes to pages –                interaction are an indispensable part of creating any polity, whether separatist or integrationist See, Moses, Black Nationalism, pp – Carter, Law, p  Hazel V Carby, “Introduction” to Frances E W Harper, Iola Leroy, or Shadows Uplifted (Boston: Beacon Press, ), pp xii–xiii; see also, Claudia Tate, Domestic Allegories of Political Desire: The Black Heroine’s Text at the Turn of the Century (New York: Oxford University Press, ), pp – Henry Louis Gates, The Signifying Monkey: A Theory of African-American Literary Criticism (New York: Oxford University Press, ), p  Brodhead, Cultures, pp , – Tate, Domestic Allegories, p  John H Van Evrie, Negroes and Negro “Slavery”: The First an Inferior Race: The Latter Its Natural Condition (Baltimore: J.D Toy, ), p , as quoted in George M Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, – (Hanover, NH: Wesleyan University Press, ), p  Because she sees her narrative as a part of the cultural litigation wherein the propriety of slavery is going to be decided by the ultimate tribunal of public opinion, Jacobs characterizes her critique of the moral corruption of the slave system as testimony: “I can testify, from my own experience and observation, that slavery is a curse to the whites as well as the blacks.” Harriet Jacobs, Incidents in the Life of a Slave Girl, in The Classic Slave Narratives, ed Henry Louis Gates, Jr (New York: New American Library, ), p  Jacobs, Incidents, p ,  As Amy Dru Stanley notes, Jacobs “defended her desperate resort to illicit sexual relations” with Sands “as a matter of free contract.” Bondage to Contract, p  Hazel v Carby, Reconstructing Womanhood: The Emergence of the Afro-American Woman Novelist (New York: Oxford University Press, ), p  Karen Halttunen has convincingly described the desire of mid nineteenthcentury Americans to find ways to derive an individual’s inner character from her manner and appearance Faced with the rootlessness and increasing mobility of a rapidly changing society that made Americans strangers to each other, many found a means to interpret the outward appearances of individuals as revelatory of inner character in the typology of conduct prescribed by their sentimental value system Halttunen, Confidence Men and Painted Women: A Study of Middle-Class Culture in America, – (New Haven: Yale University Press, ), pp – Jacobs, Incidents, p  Harper, Iola Leroy, p  Kwame Anthony Appiah, My Father’s House: Africa in the Philosophy of Culture (New York: Oxford University Press, ), pp , – Harper, Iola Leroy, pp , ,  Chesnutt, Marrow, p  Chesnutt apparently drew upon his own experience and ambivalent racial feelings in describing Dr Miller’s experience in the Jim Crow car Recounting a train trip to Washington, D.C., in  Notes to pages – his journal, Chesnutt describes a revealing interruption to an enjoyable conversation with a white “gentleman”: It was pleasant enough till we took on about fifty darkies who were going to Norfolk to work on a truck farm They filled the seats and standing room, and sat in each others’ laps for want of seats As the day was warm and the people rather dirty, the odor may be better imagined than described Although it was nothing to me, I could sympathize with my fellow traveller, who stuck his head out of the window, and swore he would never be caught in such a scrape again        Although he also appreciates the energy and song of the “merry crowd,” this description reflects the genteel tastes and conceptions of proper decorum of a man who was, as Eric Sundquist has put it, resolutely middle class Williamson, Crucible of Race, pp –; Sundquist, To Wake the Nations, p  Chesnutt, Marrow, pp – Chesnutt, “Etiquette (Good Manners),” in Essays and Speeches, p ; Chesnutt, “Rights and Duties,” in Essays and Speeches, p  Michaels, Our America, p  W.E.B DuBois, “The Conservation of Races,” in The American Negro Academy, Occasional Papers (Washington, D.C.: The American Negro Academy, ), p ,  See, Samuel Fleischacker, The Ethics of Culture (Ithaca, NY: Cornell University Press, ), pp –, – Stuart Hampshire argues that universal justice is found in the procedural norms of conflict resolution, not in substantive values which can and vary among individuals and groups One problem with Hampshire’s separation of procedural and substantive justice is that the concern for fair play in procedure is substantive A “well-recognized need for procedures of conflict resolution, which can replace brute force and domination and tyranny” represents a substantive consensus about justice Hampshire’s conception of fair procedure is based on an ethical commitment not to resolve conflicts by brute force but by consent Procedure and the rule of law are not separate from that substantive commitment but the most dependably universal expression of it It is particularly odd that Hampshire avers that “There is no end to conflict within and around the civil order” except when it comes to norms of procedural fairness without acknowledging the reciprocal influence such procedural agreement may have on the substantive values of the adversaries Our agreement to agree may, it would seem at least possible if not probable in all cases, lead us closer to consensus about other substantive values, often without even realizing it Hampshire, Justice is Conflict, pp xi, ,  DuBois, “The Conservation of Races,” pp – Storey, “The Recall of Decisions,” in The Annals of the American Academy of Political and Social Science, (Philadelphia, March ): ; Hixson, Moorfield Storey, pp , –; Storey, Abraham Lincoln, p  Of course, Storey was not alone in this comparison Charles Sumner, Oswald Garrison Villard, and Notes to pages –                   others made it as well See, e.g., Sumner, Works, II: ; Villard, Segregation in Baltimore and Washington (New York: NAACP, ), pp –, , – DuBois, “The Conservation of Races,” p  Buchanan V Warley,  U.S  () Hixson, Moorfield Storey, p ; See also Foreword by Arthur Spingarn to the NAACP’s publication of the Court’s unanimous opinion, The Decision of the U.S Supreme Court in the Louisville Segregation Case (New York: NAACP, ) Lydia Maria Child was one of those who most valued Sumner because she saw him as above the claims of mere party politics She was proud that her Senator was “the politician who has never compromised a principle, either for fear or favor.” David Donald, Charles Sumner and the Rights of Man (New York: Knopf, ), p  Letter from James Weldon Johnson to Storey dated November ,  and letter from Mary White Ovington to Storey dated October ,  in Library of Congress, Manuscript Division, Storey Collection Hixson, Moorfield Storey, pp ,  Storey, Charles Sumner, p  For his Roberts argument, see Sumner, Works, II: – See also, Leonard W Levy and Harlan B Phillips: “The Roberts Case: Source of the ‘Separate but Equal Doctrine,” American Historical Review,  (): – Negro Suffrage is not a Failure: An Address before the New England Suffrage Conference March ,  (Boston: Geo H Ellis, ), p  Hixson, Moorfield Storey, p  Storey, Politics as a Duty and as a Career (New York: G.P Putnam’s Sons, ), p  Storey, Abraham Lincoln, pp , , , ,  Hannah Arendt, “Reflections on Little Rock,” Dissent,  (): – Buchanan vs Warley,  U.S , , –,  Berea College v Kentucky,  U.S  () Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, , eds Philip B Kurland, Gerhard Casper (Arlington, VA: University Publications of America, Inc., ), pp – Illustrating how the other side, like Chesnutt and Storey, gets the import of the liberty of contract argument – the logical thrust of a natural rights argument accenting the right of free contractual association would plainly extend to marriage – Storey’s opponents state that: In a large majority of States in the Union intermarriage between the whites and negroes is not only forbidden, but in most of these States is made an infamous crime Certainly the right to choose a mate is as fundamental as the right to choose a home; and yet the State steps in and annuls a contract of association of this sort, although both parties thereto are entirely willing to enter upon the relation, and apparently no one is concerned but the parties themselves; yet for the good of society it is recognized as a valid exercise of the police power to prohibit such relations (Ibid., XVIII: )  Notes to pages –  Ibid., XVIII: ,  The defense cites and quotes DuBois as support for their argument that the NAACP’s challenge of the Louisville ordinance threatens integrity of the races: The following quotation from an editorial in The Survey (New York) of March , , has a special significance in this connection, particularly when it is remembered that Dr du Bois is the Director of Publicity and Research for the [NAACP]: “On December th, The Survey published a symposium of New Year’s resolutions We asked W E Burghardt du Bois to contribute to this symposium Dr du Bois replied with a program of Work for Black Folk in  – a stirring presentment of political, economic and social reforms put forward in the name of justice and fair dealing to his people Paragraph  of his contribution reads as follows: ‘Sixth – Finally, in  the Negro must demand his social rights: his right to be treated as a gentleman when he acts like one, to marry any sane grown person who wants to marry him, and to meet and eat with his friends without being accused of undue assumption or unworthy ambition.’ Dr du Bois closed with this paragraph: ‘This is the black man’s program for , and the more difficult it looks the more need for following it courageously and unswervingly It is not a radical program – it is conservative and reasonable.’ ” (Ibid., XVIII: –.)  Ibid., XVIII: –, –, , –,   Ibid., XVIII: –, – Support for Jim Crow law came in part from such sociologists as Franklin Henry Giddings, whose emphasis on “consciousness in kind” began to appear in his published work in  Woodward, Strange Career, p   Plessy,  U.S , –; Chesnutt, Essays and Speeches, p   Landmark Briefs, XVIII: –,  Index Ackerman, Bruce,  Adams, Frederic Upham, President John Smith, – Adams, Henry,  Adams, John, , , , ; A Dissertation on the Canon and Feudal Law,  Adams, John Quincy,  Address to the Colored People of the United States, An,  affirmative action,  Agassiz, Jean,  amateurism in American political theory, , , , –,  American national myth, , –,  American Revolution, , , , , ,  Amistad,  Anglo-Saxonism, , –, , , –, , , ,  Antelope, The,  Anthony, Susan B.,  Anti-Slavery Society, , ; Syracuse convention,  antislavery constitutionalism, ; moderate, ; radical, – Anti-Trust Act,  Appeal of the Independent Democrats,  Appiah, Kwame Anthony, ,  Aquinas, St Thomas,  Arendt, Hannah, , ,  Aristotle,  assimilation, – Augustine, St.,  Bailey v Alabama, ,  Baker, Jehu,  Bakke, Regents of the University of California v., ,  Baldwin, Roger Sherman,  Bancroft, George, History of the United States, ,  Beard, Charles A., An Economic Interpretation of the Constitution,  Beecher, Catherine, – Beecher, Henry Ward, ,  Benhabib, Seyla,  Bennett, James Gordon,  Bentham, Jeremy,  Bercovitch, Sacvan, , ,  Berea College v Kentucky,  Biglow, Hosea,  Bill of Rights, , – Bingham, Caleb, The Columbian Orator,  Bingham, John, – black abolitionism, –, –, ; jurisprudential contrasts, – Black, Hugo,  black industrial schools,  Blackstone, William,  Blair, Francis P.,  Bork, Robert, , ,  Bourdieu, Pierre,  Bradley, Joseph P., , , – Bradwell v Illinois, – Brennan, William,  Brinkerhoof, Jacob,  Broadhead, Richard,  Brooks, Preston,  Brown v Board of Education, , ,  Brown, Gertrude Dorsey, A Case of Measure for Measure,  Brown, Henry Box,  Brown, John,  Brown, John (former slave),  Brown, Sterling,  Brown, William Wells,  Buchanan v Warley, , , , , –, –,  Buck v Bell,  Butchers’ Union v Crescent City,    Index Butler, Joseph, ; The Analogy of Religion, Natural and Revealed, to the Constitution and Course of Nature, – Cable, George Washington, – Calder v Bull, –,  Calhoun, John, , , , , ; and Douglass, ; speech on Compromise of , , ,  Calvin, John,  Carby, Hazel,  Cardozo, Benjamin,  Carlisle, Lord,  Carlyle, Thomas,  Carroll, Charles, The Negro A Beast,  Carter, James Coolidge, , , –, , , ,  Century Magazine,  Chae Chan Ping (The Chinese Exclusion Case), – Channing, William Ellery, ,  Charles River Bridge v Warren Bridge, ,  Chase, Salmon, , , , , , , , , ; moderate antislavery constitutionalism, , ,  Chase, Samuel, –,  Chauncy, Charles, Civil Magistrates Must Be Just, Ruling In The Fear Of God, –,  Chesnut, Mary,  Chesnutt, Charles, , , , ; and Civil War amendments, ; and deportment, –, –; and liberty of contract, , –, –, , –, –, ; Mars Jeems’s Nightmare, ; Paul Marchand, –; The House Behind the Cedars, , ; The Marrow of Tradition, , –, –, –,  Chicago Tribune,  Child, Lydia Maria, ; A Romance of the Republic, ; An Appeal in Favor of That Class of Americans called Africans, –, – Chinese Exclusion Act, – Christian anarchism, – civil disobedience,  Civil Rights Act of , , , –,  Civil Rights Act of ,  Civil Rights Cases, – Civil Rights movement,  Civil War amendments, , , , , , , , –, , , , ; treatment by Supreme Court, , –; see also Thirteenth Amendment; Fourteenth Amendment; Fifteenth Amendment Clay, Henry, ; and Douglass, , ; speech on Compromise, of , –, , ,  Cleveland convention, emigrationist, ,  codification movement, , – Colored National Convention, Philadelphia,  Committee on Slavery and the Treatment of Freedmen,  complexional institutions, – conscience as basis for law and society, –, –, , –, , –, –, , –, –, –, –, –, –, –, –, –, –, –, , –, – conservative counterrevolution, – contractual or consensual basis for law and society, , –, –, –, , , –, – contractual freedom see liberty of contract doctrine Convention for the Improvement of the Free People of Color, Fifth Annual,  Cooper, James Fenimore, –; The Last of the Mohicans,  Corwin, Edwin,  cosmopolitan constitutionalism, –, –, , –, , , , –, ,  “cosmopolitan patriotism,”  cosmopolitanism, –, –, –, –; and bourgeois mobility – Cover, Robert,  Craft, William and Ellen,  Creole, The,  Cr`evecoeur, J Hector St John de,  Curtis, Benjamin,  Dartmouth College, –, ,  Davis, Arthur,  Day, William Howard, , –,  De Bow’s Review,  Declaration of Independence, , , , –, , , , , , , , –, , , ,  Delany, Martin, , , –, , ; Blake; or the Huts of America, , –, , –, , –; and cosmopolitan positivism, , , –; reaction to Dred Scott, –, –; The Condition, Elevation, Emigration, and Destiny of the Colored People of the United States, ; The Origin and Objects of Ancient Freemasonry, –; The Political Destiny of the Colored Race, –,  Democratic Review,  Denman, Lord, Lord Chief Justice,  deportment as contractual language of civic membership, , – Dew, Thomas,  Dewey, John,  Index Dickinson, John,  Dimock, Wai Chee,  Dixon, Thomas, , ; The Clansman, ; The Leopard’s Spots,  Douglas, Ann,  Douglas, H Ford, ,  Douglas, Stephen A., ,  Douglass, Frederick, –, , , , , , , , , , , , , , ; and citizen-jurist, ; cosmopolitan constitutionalism, –, –, , , –, , ; and cosmopolitanism –, –, , ; and Covey, , –, ; editor of The North Star, ; emblem of republican citizenship, –, ; and Emerson, –; and the Great Triumvirate, –, ; and higher law, , , , , ; My Bondage and My Freedom, –, –; Narrative of the Life of Frederick Douglass, –, –; new view of the Constitution, –, –, –; oratorical performer, –; and personal development, –, , ; Pictures and Progress, ; and racial amalgamation, ; and Reconstruction, –; rejection of the Garrisonians, –, ; and the sorrow songs, –; suffers racial discrimination, ; and Sumner, –; The Claims of the Negro Ethnologically Considered, –, –; The Heroic Slave, ; The Slumbering Volcano, ; and Uncle Tom’s Cabin, ; What to the Slave is the Fourth of July, –, –,  Douglass, William O  Downing, George  Dred (Harriet Beecher Stowe), , , ; dialogue between three slaveholders, –; Dred and Judge Clayton, ; and dynamic of power –; figure of majoritarian size –; Harry Gordon’s reaction to injustice ; influenced by outbreaks of violence ; Judge Clayton’s unjust decision , ; moral–emotional dissonance,  Dred Scott v Sandford, , –, –, , , , , , , ; Chief Justice Taney’s opinion, , –; revisionist view of, – Dresser, Amos,  DuBois, W.E.B., , , , , ; The Souls of Black Folk, ; The Conservation of Races, , –,  Dworkin, Ronald,  Edwards, Jonathan,  Emancipation Proclamation,   Emerson, Ralph Waldo, –, , , , , , , , , , , , , , ; and abstraction in higher law, , –; Address to the Citizens of Concord, –, ; aesthetic and ethical judgment interrelated , –; anti-identitarian views, –; approach to the Constitution, –, –; blood and history, –; Circles, , ; Conservative, The, , ; and cosmopolitanism, –, –, ; and Douglass, ; eschews image of shivering fugitive, , and higher law, , , –, –; images of black Americans, –; and Kant, –; Man the Reformer, ; and Moorfield Storey, ; New England Reformers, ; Poet, The, ; and Reconstruction, –; signs of racism, –; transcendentalism, , ; Transcendentalist, The, –; and Webster, –; WO Liberty journal, , , ,  emigration, –, ,  Erdman Act,  ethnologists, racist, , , , ,  Federalist, The, – Fehrenbacher, Don, – Felton, Rebecca Latimer,  Ferguson, Robert, ,  Field, Justice,  Fifteenth Amendment,  Fitzhugh, George, , –, , , , , ,  Fleischaker, Samuel, ,  Foner, Eric, ,  Fourteenth Amendment, , , , , , , ; equal protection clause, , , – Fox-Genovese, Elizabeth,  Franklin, John Hope,  freak shows and figure of the freak, , –,  Frederick Douglass’s Paper,  Freedmen’s Bureau Bill,  freedom of contract, see liberty of contract Freedom’s Journal,  Friedman, Isaac Kahn, The Radical, ,  Fugitive Slave Law of , –, –, , , , , –; and Emerson, –; and higher law, –; and Lincoln, ; and Stowe, , , –, –, –; and Webster, , , , ,  Gallatin, Albert, Peace with Mexico,  Garnet, Henry Highland, , , ; Address to the Slaves,   Index Garrison, William, , , ; and Douglass ; Garrisonianism, influence of, –, , ,  Gates, Henry Louis, ,  Gayle, Addison,  Gellner, Ernest,  Genovese, Eugene,  Gettysburg Address,  Giddings, Franklin,  Giddings, Joshua, , , ,  Gilroy, Paul, ,  Gliddon, George, , , ,  Goodell, William, ,  Gossett, Thomas,  Gougeon, Len,  Greeley, Horace,  Green, Nicholas St John  Habermas, Jurgen,  Hampshire, Stuart,  Hannaford, Ivan,  Harlan, John Marshall, Justice, , –, ; Plessy v Ferguson, , ,  Harper, Frances, Iola Leroy or Shadows Uplifted, ,  Harris, George Washington, Sut Lovingood, ,  Hartman, Saidiya,  Henderson, Gerard,  Herder, Johann Gottfried von, , ,  Herget, James,  Herndon, William H.,  Herrick, Robert, A Life for a Life, – herrenvolk democracy, ; and Fitzhugh’s rejection of,  Higginbotham, Leon,  Higginson, Thomas Wentworth,  higher law and consent, –, –, –, ; constitutionalism, –; ebb of influence, –; and Emerson and Douglass, ; emotional aspect of, –, –, , ; importance of abstraction to, –, , –, ; invocation by Seward, –; and Lincoln, ; positivist alternative, –; religious lineage, –; republican tradition, –; revolutionary precedents, –; see also cosmopolitanism; liberty of contract Hill, Frederick Trevor, Decisive Battles of the Law,  Hirsch, H.N.,  Hohfeld, Wesley,  Holcombe, James P.,  Holmes, George Frederick, , ,  Holmes, Oliver Wendell, Jr., –, , , , , ; Bailey v Alabama, , ; and legal positivism, –; Lochner v New York, –; Plessy v Ferguson, ; The Common Law, –; The Path of the Law,  Hooker, Thomas,  Hopkins, Pauline,  Horsman, Reginald, ,  Horwitz, Morton, , ,  Hosmer, William,  Howard, Jacob,  Howells, William Dean,  Hume, David, –, ,  Hutcheson, Frances,  identitarianism –, ,  identity as politics, – Income Tax Cases,  influence of literary works on course of law and politics, , –, , –, –, –, ,  Iredell, James, Justice, – Jacobs, Harriet, Incidents in the Life of a Slave Girl, , , – Jacobson, Matthew Frye, – James, Henry, ,  James, William, , , ,  Jay, John,  Jefferson, Thomas, , , , –, , , ; and idea of progress, ; portrait,  Jim Crow era, , , –, –; association of minstrelsy and freakshows, –,  Jim Crow and legal positivism, – Johnson, Andrew, President, ,  Johnson, James Weldon, ,  Johnson, William Henry,  Jones v Van Zandt, – judicial review, ,  Kahn, Paul,  Kallen, Horace, Democracy versus the Melting Pot, ,  Kansas/Nebraska Act, , ,  Kant, Immanuel, Critique of Judgment, –,  Kaplan, Carla,  Kennedy, Anthony,  Kennedy, Edward,  Ketner, James,  King, Martin Luther, Jr., , ,  Index Langston, John Mercer, , , –,  Lawrence, Kansas, violence in,  Lazarus, Emma,  Lee, Ulysses,  legal formalism, , – legal positivism, defined,  Levine, Robert, , ,  Lexington (Kentucky) Gazette,  liberty of contract doctrine (or substantive due process), –, –, –, , –; and deportment, – Lieber, Francis, , , –, , , ,  Lincoln, Abraham, , , ; condemns Dred Scott decision, –; and higher law, ; popular images of, – Lind, Michael,  Lippincott’s Magazine,  Lochner v New York, –, ,  Locke, John, , –,  Loguen, Jermain W.,  Longfellow, Henry Wadsworth,  Longstreet, Augustus Baldwin, Georgia Scenes, – Lowell, James Russell, , ; The Biglow Papers, ,  Lustig, R Jeffrey,  McCune-Smith, James,  Madison, James, –,  Maine, Sir Henry,  Manly, Alex,  Mann, State v., ,  Mann, John, – Mansfield, Lord, – Marshall, John, , , –,  Marshall, Thurgood, ,  Marshall, William Edgar,  Martin, Waldo,  Melville, Herman, Benito Cereno, –,  Michaels, Walter Benn, , ,  Mikell, William E.,  Mill, John Stuart,  millennialist vision of U.S as “redeemer nation,” , –, ; see also American national myth Miller, Perry, – Miller, Samuel,  minstrelsy and minstrel figures, , , ,  miscegenation, , , –, –,  Missouri Compromise, ,  moral intuition or moral sense, –, –, ; and Stowe, –, – Morgan, Edmund, ,  Morris, Henry O., Waiting for the Signal,   Morse, Samuel,  Morton, Samuel George, Crania Americana, , ,  Myers, Gustavus, History of the Supreme Court of the United States,  NAACP (National Association for the Advancement of Colored People), , , , , , , –,  National Era,  national family, image of, –, ,  natural rights, , – Nebraska controversy,  New York Herald, ,  New York Times, , –,  New York Tribune, , , , ,  Nineteenth Amendment,  Noble, Marianne,  North American Review,  North Star, The,  Nott, Josiah, –, ,  Nussbaum, Martha,  O’Conner, Flannery,  Otis, James, The Rights of the British Colonies Asserted and Proved, –, ,  Ovington, Mary White,  Paine, Thomas, , ; Common Sense, ,  Parker, Theodore,  Patterson, Anita,  Pennoyer, Sylvester, Governor,  Phillips, David Graham, The Fashionable Adventures of Joshua Craig,  Phillips, Wendell, , ,  Pierce, Franklin, President,  Pittsberg Commercial,  Plessy v Ferguson, , , , , , –, , , –, , ,  Pocock, J.G.A.,  Poirier, Richard,  Pollock v Farmer’s Loan (the Income Tax Cases),  positivist conceptions of law and society, –, , –, , –; as alternative to higher law arguments, , –; merger of positivism and Jim Crow era racism, – Posner, Richard,  Posnock, Ross,  post-modern “bad tools” paradigm, – post-Reconstruction, , , , , , ; see also Reconstruction  Index Pound, Roscoe, ,  Preamble to the Constitution, – Prigg v Pennsylvania,  progress, belief in, ,  Progressives, , – proximate cause, – racism, –, ; see also white supremacist views racist ethnologists, , , , ,  Rakove, Jack,  Reconstruction, , , , , , –, ; see also post-Reconstruction religion, – Republic, The,  Republican colonization plan  Republican party, , , – republican tradition, , – resemblance – the requirement of racial and cultural similitude in the democratic body politic, , , –; and Uncle Tom’s Cabin –,  Richardson, Samuel, Pamela & Clarissa,  Richmond Enquirer, , , , –,  rights see natural rights Roberts v City of Boston, – Rochester convention,  Romer v Evans, , – Root, Jesse, The Origin of Government and Laws in Connecticut, – Rowe, John Carlos, – Ruffin, Thomas, –, ,  Scalia, Antonin, –,  Sennett, Richard,  Seward, William H., , ; speech on Compromise of , –, –, , , , –, , , ; moderate antislavery constitutionalism,  Shaftesbury, Earl of,  Shaler, Nathaniel,  Sherman Anti-Trust Act,  shivering fugitive, image of, , , , ,  Slaughterhouse Cases,  Smith, Adam, , ,  Smith, Gerrit, , , ,  Smith, Rogers, ,  Social Darwinism, , ,  Somerset v Stewart, – Southern Literary Messenger, –,  Southern Magazine,  Spencer, Herbert,  Spivak, Gayatri,  Spofford, Ainsworth Rand, , ; The Higher Law Tried by Reason and Authority, –, – Spooner, Lysander,  Stampp, Kenneth M.,  Stanton, Elizabeth Cady,  State v Mann, – Stern, Julia,  Stevens, Thaddeus, , , , , , ; moderate antislavery constitutionalism,  Stewart, Alvan,  Storey, Moorfield, , , , , , , , , , , –; and Emerson, ; and liberty of contract, , –, –, ; and miscegenation, ; and NAACP, –; and Sumner, – Story, Joseph, Justice, , , , ,  Stowe, Catherine, – Stowe, Harriet Beecher, ; on black Americans as moral agents, –; and Delany, ; and Fugitive Slave Law, , –; and higher law crisis, –, –, ; and images of national leadership, ; influence on Reconstruction debates, ; and Mann, State v., ; and moral intuition, –; and outbreaks of violence, ; partnership with Sumner, –; and political power of literature, ; The Freeman’s Dream, –; The Key to Uncle Tom’s Cabin, , , ; see also Dred; Uncle Tom’s Cabin Strong, George Templeton,  Stuart, Gilbert,  substantive due process, – Sugar Trust Case,  Sumner, Charles, Senator, , , , , , , , , , , , , , , ; Are We A Nation, ; assault on, , ; Civil Rights Bill, , , , ; Freedom National, Slavery Sectional, –; influenced by Child, ; influenced by Uncle Tom’s Cabin, ; moderate antislavery constitutionalism, , ; partnership with Douglass and Emerson, ; partnership with Stowe –; and Reconstruction, –, ; and Storey (Moorfield), –; The Equal Rights of All, – Sumner, William Graham, , –, , , , , ; Folkways,  Sundquist, Eric, , , ,  Taney, Roger, , , , , , ; and Dred Scott, , , , –, , , , , , , –, ; reference to Uncle Tom’s Cabin, ; reputation revived, ,  Tate, Claudia,  Index The Freeman’s Dream (Harriet Beecher Stowe), – Thierry, Augustine, History of the Norman Conquest,  Thirteenth Amendment, , ,  Thomas, Brook, , , ,  Thoreau, Henry David, , ; Resistance to Civil Government,  Tilman, Ben, Senator,  Tise, Larry,  Tompkins, Jane, ,  Toqueville, Alexis de, Democracy in America,  Toussaint l’Ouverture,  tradition, force of on law and society, –, –, , , –, – Trumbull, Lyman, Senator,  Tuck, Richard,  Turner, Nat,  Tuveson, Ernest,  Twain, Mark, , ; Huckleberry Finn, –, , –, , –; and identitarian norms –; Pudd’nhead Wilson, , –, , ; reaction to Civil Rights Cases –; Recent Carnival of Crime in Connecticut, –; The Guilded Age, ,  Uncle Tom’s Cabin (Harriet Beecher Stowe), , –, , , , , –, ; attraction of power, ; debate between Senator and Mrs Bird, –; depiction of Quaker community, –; George Harris as romantic type, –, ; influences Sumner, ; and legitimacy of Fugitive Slave Law, , –, –; phenomenal success, ; political responses, ; and resemblance, –, ; in Taney’s papers, ; Tom as Christian martyr, , ,  Upham, Thomas,  U.S v E.C Knight Co (the Sugar Trust Case),  Van Evrie, John,  Vesey, Denmark,   Virginia constitutional convention,  Virginia Supreme Court, and Dred Scott decision,  Von Frank, Albert,  Voting Rights Act of ,  Wald, Priscilla, ,  Walker, David, Walker’s Appeal, , , , , – Ward, Samuel R.,  Warren, Charles, The Gilded Age, ,  Warren, Earl, – Washington, Booker T., ,  Washington, George, portrait, – Washington, Madison,  Wayland, Francis,  Webster, Daniel, –, , ; and Douglass, ; and Emerson, –; and Fugitive Slave Law, , , , , ; power of oratory, ; speech on Compromise of ; –, , , – Whipper, William, – White, G Edward,  white supremacist views, , , , , , ,  Whitman, Walt,  Whittier, John Greenleaf, Ichabod,  Wiecek, William,  Williams, Patricia,  Wills, Garry, ,  Wilmington, North Carolina riot,  Wilmington Record,  Wilson, Henry, , ,  Wilson, James, Lectures on Law, – women’s suffrage,  Wood, Gordon,  Woodberry, Levi,  Woodhull, Victoria,  Woodward, C Vann,  Wright, Elizur,  Wright, Henry C.,  Wright, Richard, Native Son,  ... page intentionally left blank RACE, CITIZENSHIP, AND LAW IN AMERICAN LITERATURE In this broad-ranging and powerful study, Gregg Crane examines the interaction between civic identity, race, and. .. California since  He has published in American Literary History, American Literature, Nineteenth-Century Literature and Hastings Constitutional Law Quarterly CAMBRIDGE STUDIES IN AMERICAN LITERATURE. .. political, and legal deployments of higher law reasoning Focusing on race and citizenship in the nineteenth century, this study traces and analyzes the efforts of a line of literary and legal intellectuals