“Free Subjects: Black Civic Identity and the Invention of the Asiatic”
Short Version
Hoang Gia Phan
Ph.D. Candidate
English Department
University of California – Berkeley
I.
If, as Etienne Balibar describes, the radical projects of 1776 and 1789 constituted
political citizenship such that “citizenship is not one among other attributes of subjectivity, on the
contrary: it is subjectivity, that form of subjectivity that would no longer be identical with
subjection for anyone,”1 how do we narrate the histories of unfreedom which inhered in these
moments? Rogers M. Smith has argued that throughout the history of citizenship laws –
codifications through which American officials “literally constituted the American civic
community”– political actors have relied on ascriptive hierarchies to promote and maintain
exclusions based on race, gender, and class.2 In this essay I explore an aspect of citizenship of
which liberal histories such as Smith’s gives little account, namely labor.3 Indeed, Smith treats
labor only in racialized form (i.e., as black slave labor) and even then concentrates more on the
“race” of laborers than on the regime of unfree labor with which they are identified. Yet, as labor
historian David Roediger has argued, blackness and slavery were not always identified with one
another, nor did whiteness always signify independence.4 With labor as the point of entry into the
subject of citizenship, I will investigate various exclusions based not solely on “race,” but also on
forms of labor, which, through the rituals of law, become racialized.5 This racialization of a
societal division of labor cognizable within the liberal-republican framework in turn explains, I
argue, the convergence in U.S. legal thought of juridical understandings of the citizen and the
production of an exclusive class of subject: the “free worker.”6
One way to better understand Anglo-American slavery – as a labor regime historically
and ideologically tied to blackness – and the transition to post-Emancipation “freedom” is a
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transnational perspective, which considers the relations between migration and forms of labor.
Understanding the moments of transition, from unfree to “free” labor, requires an understanding
of that form of labor that we can propose as a middle term: indentured servitude.7 This middle
term of indenture, the possibility of transition from one form of bonded labor to the system of
“free” waged labor, is inscribed in the very constitution of U.S. nationhood. Article I, Section II
of the U.S. Constitution scripts the famous “three-fifths” clause thus: “Representatives and direct
taxes shall be apportioned among the several states which may be included within this union,
according to their respective numbers, which shall be determined by adding to the whole number
of free persons, including those bound to service for a term of years, and excluding Indians not
taxed, three-fifths of all other persons.”8 Critics are right to remark upon the absence of “black,”
“color,” or even “race” in the catalogue of this clause’s accounting.9 While such arguments
provide an important corrective to a critical commonplace, they forget another category of laborer
which adds significantly to our understanding of the relation between the unspoken terms of
“race,” “slavery,” and labor. Supplementing its description of “whole free persons,” the clause
adds: “including those bound to service for a term of years” – that is, indentured servants.10 In
the context of the later mobilizations of the concepts of freedom and unfreedom, indentured
servitude and its ambiguous position between “whole free persons” and those “other persons”
(slaves) becomes particularly important. While we might agree with David Brion Davis on a
structural identity between indentured servant and slave, we should also recognize the difference
of degree between them, which is at least important enough to be included as a supplement to the
Constitution’s calculus. In other words, while indentured servants may be just like slaves in their
living conditions, their social standing, and the experience of corporal punishment,11 they are also
legally different: they will be counted as whole, those other persons will not.
This other labor category of indenture displaces a binary often assumed in readings of the
Constitution, and in understandings of slavery generally, between free labor and the unfreedom of
slavery. As a third term, it adds productive problems to familiar critical narratives of slavery, and
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its various loose synonyms, such as bondage and involuntary servitude. One immediate question,
for example, is: Why should they count as whole numbers? Yet even this is a misleading
construction of the clause. It reads: “the whole number of free persons, including those bound to
service for a term of years.” It is not: “the whole number of free persons and the whole number
of those bound to service.” The supplementary “including” describes free persons. Which is to
say that one can be bound, be in a state of bondage, and also be free – free, at least, for the
classificatory purposes of the law.
In indentured servitude, individuals “voluntarily” contract to serve for a term in exchange
for compensation, such as transportation expenses and freedom dues. What type of labor does
this practice constitute? As David Brion Davis’ and Barbara Fields’ arguments suggest, the
modern answer seems to be that it constitutes a form of slavery. As Robert Steinfeld reminds us,
this answer, “however, depends upon a particular scheme of understandings that ignores the
characteristics indentured servitude shares with free labor – contractual freedom, limited term,
compensation – and that classifies it with slavery because of the legal compulsion both
involve.”12 Nor should we disregard the significance of this middle term of indenture to the
conventional dialectical relation between “free” labor and slavery. If we reread, for example,
what is commonly called the fugitive slave clause, with this other category (more) in mind, its
valences shift: “No person held to service or labour in one state, under the laws thereof, escaping
into another, shall in consequence of any law therein, be discharged from service or labour, but
shall be delivered up on claim of the party to whom such service or labour may be due.” “Service
or labour” appear paired three times in this clause. James Madison’s Notes from the Convention
are particularly revealing of the Constitutional founders’ shared recognition of this connection
between indentured and slave labors. As Madison notes, the “fugitive slave” clause was
originally introduced as a supplement to the clause requiring the delivering up of criminals to the
“State having jurisdiction over the Crime.” “Mr. Butler and Mr. Pinckney moved to ‘require
fugitive slaves and servants to be delivered up like criminals.’” After several objections to this
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proposal – objections to its explicit inscription of slavery into the Constitution; and to its
expectation that non-slaveholding states thus be required to pay for the practices of the slaveholding states – the proposition was withdrawn, “in order that some particular provision might be
made apart from this article.” What we now call the “fugitive slave clause” was reintroduced the
next day, as a separate provision. Interestingly, both the terms “slave” and “servant” disappear in
the new provision, with the paired “service or labour” coming to stand in for them.13 It is thus
important to note that the clause providing for the return of fugitive labor applied to both slaves
and indentured laborers.14 Both types of labor, free and unfree, are erased from this monumental
scene of writing.15
In the discussion that follows I will be interested also in that other “slave clause,” which
at first glance admits of less susceptibility to a construction inclusive of indentured labor: “The
migration or importation of such persons as any of the states now existing shall think proper to
admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and
eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each
person.” “Migration,” positioned as distinct from “importation,” implies a greater degree of
volition in the “person” traveling than “importation” does; indeed, the latter has an overtly
commercial valence – with attendant suggestions of human chattel – less apparent in the term
migration. Such would accord with an understanding of indentured labor as a form similar to
“free” labor, in its explicit contractual freedom and the attendant presupposition of “voluntary”
labor.16 Various forms of labor: “free,” indentured, and involuntary. Such are the major nodes in
a spectrum of degrees of freedom and unfreedom, as recognized in American law until the end of
legal slavery and the passage of the post-war amendments. As we will see, the end of the legal
form of one labor system did not then resolve the problems designated as those of “race” and
“class.” 17
II.
Four decades after the Dred Scott decision denied citizenship and personhood to African-
Americans, the ambiguous relation between black citizenship and “freedom” was foregrounded
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once again in the case of Plessy v. Ferguson (1896).18 While Plessy was a dispute over the
segregation of black and white Americans, both the majority and the dissenting opinions in Plessy
allude to the legal treatment of the growing population of Chinese migrant laborers in the U.S.
Paradoxically, each side of the ruling is able to invoke the ambiguous status of this “other race” in
support of its arguments. The majority opinion, delivered by Justice Henry Billings Brown,
denied the validity of the plaintiff’s claims that the Louisiana act segregating black and white
citizens on railway cars conflicted with the Thirteenth and Fourteenth Amendments. Justice
Brown quickly dismisses the first claim, of conflict with the Thirteenth, by citing the ruling in the
famous Slaughterhouse Cases of 1873:
That [the act] does not conflict with the Thirteenth Amendment, which abolished slavery and
involuntary servitude, except as a punishment for crime, is too clear for argument. … This
amendment was said in the Slaughterhouse cases, 16 Wall. 36, to have been intended
primarily to abolish slavery, as it had been previously known in this country, and that it
equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery
or involuntary servitude, and that the use of the of the word ‘servitude’ was intended to
prohibit the use of all forms of involuntary slavery, of whatever class or name.19
Judge Brown’s citational practice aims to restrict the signification of “slavery” as well as what for
Brown is its legal-ideological opposite, “freedom.”20 His argument against the plaintiff’s claim
requires such a restriction. Yet what does his final clarification of the “use of the word
‘servitude’” mean in the context of segregation and the court’s inscription of the meaning of postemancipation unfreedom? “Slavery,” as Brown defines it, “implies involuntary servitude – a
state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and
services of one man for the benefit of another, and the absence of a legal right to the disposal of
his own person, property and services.”21 Here slavery entails, by logical necessity, “involuntary
servitude.” 22 Yet the persuasive force of such an interpretation is attenuated by the tension
between the claimed capaciousness of the term “involuntary servitude” and Brown’s desired
limits to the descriptive bounds of slavery. Thus his necessary proliferation of the supplementary
conditions of involuntary servitude, which lead Brown to the strikingly redundant final category,
“involuntary slavery.” If the essence of “slavery,” in Brown’s understanding, is “involuntary
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servitude,” what is “involuntary slavery”? The redundancy and equivocations in Brown’s
phrasing reveal the strained logic of his terms. “Slavery” in the Plessy decision designates one
form of unfree labor “as it had been previously known in this country,” i.e., black slavery. Brown
supplements this slavery with “servitude,” that more capacious term designating any form of
“slavery,” as it might persist under another name.
Brown’s citation of Miller is one strong example of the agency of the letter: figured as
legal precedent, the Slaughterhouse majority opinion23 constructs for both immediate and later
historical contexts a conceptual link between a reified “race” category and certain types of
laboring subjects. For in accepting the Slaughterhouse ruling’s construction of the Thirteenth
Amendment’s intent, Brown also reinscribes that ruling’s identifications of “races” with specific
labor regimes. In the majority opinion of the Slaughterhouse Cases cited by Brown, Justice
Samuel Miller had ruled against white tradesman claiming the protections of the post-war
amendments.24 Even as Slaughterhouse affirmed that the postwar amendments had been
designed to grant the rights of citizenship to formerly enslaved black men, the debate over their
uses and extensions mobilize a host of other stories about labor, “class,” and “race.” Indeed,
while the butchers’ argument against monopoly claimed an expansive federal protection under the
Fourteenth Amendment, as Eric Foner’s historical narrative suggest, it also claimed for them
inclusion under the Thirteenth Amendment, prohibiting slavery: “But if this monopoly were not
thus void at common law, it would be so under both the thirteenth and fourteenth amendments.”25
The butchers’ lawyers mobilized narratives of enslavement and caste domination to argue for the
inclusion of these white tradesman under an amendment that everyone involved in the case
recognized as designed to end the legal slavery of blacks in the Unites States. Such inclusion of
white tradesmen under this protection rested on their more expansive significations of the phrase
“slavery and involuntary servitude” in the Thirteenth Amendment. Calling up the specters of Old
World hierarchy and feudal serfdom, and drawing analogy between these and the Louisiana act’s
creation of “enthralled ground” and its dispossession of “free” tradesman of their means of
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livelihood, they ask: “Is this not ‘a servitude?’… It is like the “thirlage” of the old Scotch law
and the banalites of seigniorial France; which were servitudes undoubtedly. … We have here the
‘servients’ and the ‘dominants’ and the ‘thraldom’ of the old seigniorial system.” Their primary
claim, then, is not to the citizenship protections of the Fourteenth Amendment, but rather to
protections against the return, with the rise of monopoly control, of a feudal “slavery” supposedly
left behind in Europe.26 The butchers’ inclusion rests on their “subject” position as virtual slaves
under the legally enforced dominion of a corporate monopoly.27
In his majority opinion, Miller denies the validity of such an expansive construction of
the Thirteenth:
It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his
color and his slavery. But it is just as true that each of the other articles was addressed to the
grievances of that race, and designed to remedy them as the fifteenth. We do not say that no
one but the negro can share in this protection. … But what we do say, and what we wish to
be understood is, that any fair and just construction of any section or phrase of these
amendments, it is necessary to look to the purpose which we have said was the pervading
spirit of them all, all the evil which they were designed to remedy.28
Miller’s fundamental objection is to the apparent disappearance of “color” – and the “negro
slavery” of which it is an index – in the white plaintiffs’ claim to the “subject” position of
involuntary servitude. Such a complaint registers once again the complex dialectic of the
visibility and invisibility of “race,” and its convergence with labor law. The end of the legally
enforced “involuntary servitude” of black slavery in America converges with agitation in the
world of “free labor” – of which African-Americans were formal members after the Civil War.29
What happens to those links, established and strengthened during slavery, between
blackness and dependency, and between whiteness and independent, free labor, when the
federally sanctioned enslavement of blacks ended, and the recently freed are made, through the
post-war amendments, formal equals on the labor market – a market, in which, as the post-war
amendments and the subsequent debate in Slaughterhouse highlight, “color” may disappear on
the level of abstract form (i.e., of citizen-form and commodity form) while persisting in the
social? Do the black slaves of that “unqualified slavery” to which Marx refers, in gaining legal
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freedom, merely enter the “veiled slavery” of wage labor under capitalist production? In the postbellum years the increasing poverty of such a concept as “free labor” became only too apparent to
the recently freed blacks, who in many ways emerged from enslavement in the same sense as
Marx’s workers, “free in the double sense.”30 Miller’s insistence on African slavery as the
“efficient cause” of the war and the “freedom of the slave race” as “the one pervading purpose”
of the post-war amendments denied the butchers’ inclusion under the protections of the
amendments, denying their free-labor reading of “servitude.”31 Further, and even more
significant to the social fate (often one of social death32) of black citizens, his insistence on the
centrality of African-Americans in the causal history of the war elided the significance of the
confrontation between the Union and states-centered authority. Such an elision enabled his
arguments against expansive federal jurisdiction. It was this very limitation of national
jurisdiction over the administration of justice that greatly weakened civil rights enforcement.33 In
the contradictory post-bellum dialectic of the (in)visibility of “race” in the formal category of
citizenship, recently freed African-Americans found themselves figured as the “subjects” of one
legal narrative, only to be erased from the scene of another.34
Miller attempts to contain the scope of the post-war amendments to black freedom
through a containment of signification. In particular, Miller argues for the supplementary logic of
“servitude,” in response to the problematic excess of terms in the Thirteenth Amendment, which
prohibits two categories of labor subject to legal compulsion, not slavery alone. Disputing the
white plaintiffs’ claim that their subjection to a monopoly amounted to “involuntary servitude” –
concerned, that is, to counter such an expansive construction of the amendments – Miller
(re)constructs the intent of the Thirteenth Amendment (and this construction becomes Judge
Brown’s precedent in the Plessy ruling): “The word servitude is of larger meaning than slavery,
as the latter is popularly understood in this country, and the obvious purpose was to forbid all
shades and conditions of African slavery.”35 Miller’s logic proceeds by increments of enclosure:
servitude the larger circle, and slavery its subset. His explanation is that involuntary servitude is
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intended as a strategic enclosure, in order to prevent the use of the pretense of indentured
servitude to perpetuate black slavery, in disguised form.36 Yet indentured servitude escapes this
enclosure, for Miller’s invocation of this old labor category also raises its old question: is
indentured servitude involuntary servitude? While here Miller’s argument relies on such a view,
a little later in his acts of enclosure Miller contradicts this equation of indenture and involuntary
servitude: “If Mexican peonage or the Chinese coolie labor system shall develop slavery of the
Mexican or Chinese race within our territory, this amendment may safely be trusted to make it
void.”37 While before indentured servitude constituted the perpetuation of slavery under a
different name – which Miller argues the amendment’s excess terms were intended to
comprehend – here it is allowed as not-yet slavery. The ritual of enclosure in Miller’s legal logic
advances the racialization of labor systems, as if in a burlesque of the modes of production: his
logic will only allow certain “race” categories to attach to now-naturalized labor systems with
which they have been historically and ideologically intertwined: Mexican peonage and Chinese
coolie labor are acceptable race-labor categories, but black labor is in this logic incommensurate
with indenture. “Black,” for Miller, is always-already the sign of slavery, and black indenture or
apprenticeship is a logical impossibility. It must be slavery masked.
III.
Such identifications between race and labor, carried down from the Slaughterhouse Cases
to the Plessy ruling, enable Justice Brown’s invocation of a Chinese-labor case against the
plaintiff Plessy’s second major claim, that the Louisiana segregation legislation violated the
Fourteenth Amendment. Describing the police power, Brown claims the arbitration of practical
“reason” in deciding its scope:
every exercise of the police power must be reasonable, and extend only to such laws as
are enacted in good faith for the promotion for the public good, and not for the annoyance
and oppression of a particular class. Thus in Yick Wo v. Hopkins, 118 U.S. 356, it was
held by this court that a municipal ordinance of the city of San Francisco, to regulate the
carrying on of public laundries . . . violated the provisions of the Constitution of the
United States, if it conferred upon the municipal authorities arbitrary power, at their own
will, and without regard to discretion, in the legal sense of the term, to give or withhold
consent as to persons or places. … It was held to be a covert attempt on the part of the
municipality to make an arbitrary and unjust discrimination against the Chinese race.38
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For Brown the ordinance challenged in Yick Wo is the truer example of a legislation that violates
the Fourteenth Amendment rights of a “particular class” – “the Chinese race.”39 “So far,” Brown
argues, “as a conflict with the Fourteenth Amendment is concerned, the Plessy case reduces itself
to the question of whether the statute of Louisiana is a reasonable legislation, and with respect to
this there must be a larger discretion on the part of the legislature.”40 Brown’s distinction
between “discretion” and “discrimination” itself relies on local arbitration, on that field of
particularity identified as “the social,”41 as both prior to and immune from the workings of federal
law. As a privileged category of judgment, discretion displaces the question of legal
discrimination towards the cultural-ideological sphere of tradition. Thus, “in determining the
question of reasonableness [the Louisiana legislature] is at liberty to act with reference to the
established usages, customs, and traditions of the people.”42 Through Brown’s logic of reduction,
the constitutionality of the legislation becomes a question of whether it is “reasonable,” an
ambiguous term whose site-specific valences are left to be adjudicated by local tradition: the
objectivity of the law meets its self-proclaimed limits in the countervalent objectivity-subjectivity
of (what Pierre Bourdieu has called) the social habitus.43
In the only dissent to the Plessy ruling, Justice Harlan likens the separate-but-equal ruling
of the majority opinion to the “pernicious” Dred Scott decision of four decades earlier.44 Yet
even as Harlan critiques the Plessy ruling’s revival of the inegalitarian spirit of Dred Scott, his
own, apparently more expansive, formulation of the meaning of freedom reinscribes Dred Scott’s
language of citizenship, a language which constructs freedom around other necessary exclusions:
“There is a race so different from our own that we do not permit those belonging to it to become
citizens of the United States. Persons belonging to it are, with few exceptions, absolutely
excluded from our country. I allude to the Chinese race.”45 While arguing, then, against “the
arbitrary separation of citizens, on the basis of race, while they are on a public highway, [as] a
badge of servitude,”46 Harlan invokes another “race” as the truly radical other that can never be
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assimilated into this community of U.S. civic identities. The historical context of labor
competition and immigration exclusion is essential to Harlan’s choice of exemplary other, and I
will return to this later.47 Suffice to remark here that even as he dissents from the Plessy majority
opinion, Harlan’s exclusion of this other race depends upon a construction of the Fourteenth
Amendment that he shares with it.48 Read by both the majority and dissenting opinions in Plessy
as merely an enlargement of the domain of citizenship, with no effect on citizenship’s
consensualist basis, the Fourteenth Amendment’s supplement to freedom maintains not only the
possibility but also the necessity of exclusion as constitutive of the nation. To define “all
citizens,” black and white, as “equal before the law,” Harlan emphasizes a racial alterity
supposedly greater than that of African-Americans, who, as civic subjects, at least, find their
“race”—marked difference subordinated to their civic identity with white citizens. Despite his
claim that the post-bellum amendments “removed the race line from our governmental systems,”
the very borders of this system are drawn by another “race” line. The (il)logical implication of
this race-based exclusion is that African-Americans, at this moment in U.S. history, are
apparently enough like white Americans to be included in its citizen community (while the
Chinese are not).49
IV.
Considered alone, however, the “race” of the Chinese subjects is not the reason for the
court’s anxiety. Which is to say it not merely xenophobia that motivates the court’s support of
exclusion, but rather the ideology of racism and its relation to labor which represent to the court’s
natural right and necessity of exclusion in maintaining domestic “peace and security.”50 The
treaty of 1880 which provided for the recognized U.S. right of exclusion was directed explicitly
towards laboring migrants.51 Accordingly, all the exclusion acts passed to carry this treaty into
effect named only Chinese laborers as their subjects. Justice Field traces the history of this
growing labor competition, which in his nationalist historiography justifies exclusion:
laborers came from [China] in great numbers … by far the greater number under contract
with employers, for whose benefit they worked. These laborers readily secured
employment, and, as domestic servants, and in various kinds of out-door work, proved to
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be exceedingly useful. … [A]s their numbers increased, they began to began to engage in
various mechanical pursuits and trades, and thus came in competition with our artisans
and mechanics, as well as our laborers in the field.52
Field’ narrative of Asiatic indenture in the U.S. throws into relief the structural link between labor
competition and anti-immigration sentiment. In Judge Stephen Field’s majority ruling in the
Chinese Exclusion Case, the concept of the “public good” centers upon the world of free labor: in
the last instance, it is Chinese labor which poses the threat to this “public good” – itself the sign, I
argue, of a racialized division of labor.53 Early Chinese labor migration posed no threat to the
“public good” (domestic peace and order; and national security) precisely because it came in the
form of indentured labor; it was not “free labor” in the fullest sense of that concept (where social
labor-power is disentangled from “free” legal personhood), as white labor was understood to be.
Early Chinese laborers sustained the ideology of free labor: as domestics and dependent labor,
they entered into limited exchange as servants, working for the benefit of others – while the white
U.S. laborer of this implicit comparative worked for himself, i.e., was independent. However, as
the character of their labor changed – as they attempted to make the transition from indentured
labor into that of the labor-commodity in necessary competition with free (white) labor – Chinese
laborers became a threat.54 The “Chinese race” figures as that form of labor that degrades and
threatens the status of “free labor.”55 Such identifications of certain “races” with certain types of
“labor” suggest also that the structure of what Rogers Smith has called the “ascriptive
hierarchy”56 of race that determined citizenship-law in the nineteenth century maps onto the
hierarchy of labor regimes described earlier in this essay. Free (white) labor figures at the top of
the nineteenth-century hierarchy of race-labor identities, followed by (Asiatic) indenture, (black)
slavery, and (Mexican) peonage as the major forms of “degraded” labor. As I have noted above,
the legal transformation of the formerly enslaved into waged laborers required assimilation into
the world of “free labor.”57 In the legal-political structure of such assimilation, the differences of
race are maintained – the “separate but equal” logic of the Plessy ruling – while ideally
subordinated to civic identity.58 Similarly, that “residue” of race-ascribed difference enables the
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hierarchization of these assimilated black subjects within the structure of civic identity. The
court’s invocation of the “public good” in the Chinese Exclusion Case is the demand for the
maintenance of such race-labor hierarchies. The identity principle inherent in assimilation
reproduces the demand that those persons attaining the status of freedom - one possible only in
and through citizenship – must also be brought into identity with “free labor.”59
Etienne Balibar, “Subjection and Subjectivation,” in Joan Copjec, ed., Supposing the Subject (London:
Verso 1994) 12. As many recent philosophers and political theorists have remarked, the term “subject”
carries with it a history of overdeterminations. In such discussions, “subject” implies both an identity
through some type of self-recognition and a position of subordination or subjection to some other. Perhaps
most famously, Althusser: “In the ordinary use of the term, subject in fact means: (1) a free subjectivity, a
center of initiatives, author of and responsible for its actions; (2) a subjected being, who submits to a higher
authority, and is therefore stripped of all freedom except that of freely accepting his submission”
(“Ideology and Ideological State Apparatuses,” in Lenin and Philosophy and other Essays, trans. Ben
Brewster [New York: Monthly Review Press, 1971] 182). Both Foucault and Balibar have taken up this
ambiguity to theorize, respectively, power and citizenship. See Michel Foucault, “The Subject and Power,”
in Hubert L. Dreyfus and Paul Rabinow, eds., Michel Foucault: Beyond Structuralism and Hermeneutics
(Chicago: University of Chicago Press, 1983) 212; and Balibar, “Subjection and Subjectivation,” 8.
Etienne Balibar’s elaboration of the subject in juridical terms provides one point of departure for my
argument.
2
Rogers M. Smith, Civic Ideals (New Haven: Yale UP, 1997) 7, 2. More specifically, Smith argues that
“although many liberal and republican elements were visible, much of the history of America’s citizenship
laws did not fit with liberalism as [Louis] Hartz described it or republicanism as [J.G.A.] Pocock described
it.” Reading against variants in the tradition of Tocquevillean scholarship which focuses on a singular
history of ideals or philosophical precepts (of liberalism or republicanism) as the common ground of
American national self-understanding, Smith presents a “multiple traditions thesis,” which, while arguing
for a blend of various civic ideals, emphasizes the inegalitarian, ascriptive elements present throughout
U.S. history (Smith, 6).
3
Like Karen Orren I proceed from the “primacy of labor.” The phrase is from Karen Orren’s Belated
Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge: Cambridge UP,
1991). Orren’s “claim is that inquiry into how work is induced and regulated will open new avenues to
understanding fundamental changes in politics. The primacy of labor is based on the premise that labor is a
bridge between the realm of state elites and institutions and the ongoing activities of social life. …
Changes in these relations, or a change in demands on the part of the state, may cause, historically have
caused, adjustments of political institutions, accompanied by varying degrees of conflict”(Orren, 21).
4
See David Roediger, The Wages of Whiteness (London: Verso, 1999). According to Roediger, “the terms
white and worker became meaningfully paired only in the nineteenth century...during a time in which the
United States, whose citizens were taught by their revolutionary victory and republican ideology to expect
both political and economic independence, became a nation in which, by 1860, roughly half the nonslave
labor force was dependent on wage labor and subject to new forms of capitalist labor discipline” (20).
Similarly, as Edmund Morgan and others have argued, white indentured servitude preceded African slavery
as the dominant mode of labor migration during European expansion – though it was later displaced by this
labor regime. See Edmund S. Morgan, American Slavery, American Freedom (W.W. Norton, 1975) esp.
“Toward Slavery; Stanley L. Engerman, “Servants to slaves to servants: contract labor and European
expansion,” in P.C. Emmer, ed., Colonialism and Migration: Indentured Labour Before and After Slavery
(Dordrecht: Martinus Nijhoff Publishers, 1986); and Theodore W. Allen, The Invention of the White Race,
Volume Two: The Origin of Racial Oppression in Anglo-America (Verso, 1997), esp. Chapters 6 through
8.
4
Yet to focus on labor is not to displace “race” as a category of inquiry. David Eltis has argued that it was
the “African exclusivity” of slavery in the Americas, an “ethnic divide,” that “provided Europeans with the
1
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blinkers necessary to come to terms with an institution that was so different form the labor regimes which
they saw as appropriate for each other.” See David Eltis, “Slavery and Freedom in the Early Modern
World,” in Stanley Engerman, ed., Terms of Labor: Slavery, Serfdom, and Free Labor (Stanford: Stanford
UP, 1999) 35-6.
5
Yet to focus on labor is not to displace “race” as a category of inquiry. David Eltis has argued that it was
the “African exclusivity” of slavery in the Americas, an “ethnic divide,” that “provided Europeans with the
blinkers necessary to come to terms with an institution that was so different form the labor regimes which
they saw as appropriate for each other.” See David Eltis, “Slavery and Freedom in the Early Modern
World,” in Stanley Engerman, ed., Terms of Labor: Slavery, Serfdom, and Free Labor (Stanford: Stanford
UP, 1999) 35-6.
6
By “free worker” I mean one who sells himself on the labor market as a commodity; i.e., in that double
sense described by Marx: “Free workers in the double sense that they neither form part of the means of
production themselves, as would be the case with slaves, serfs, etc., nor do they own the means of
production. . . . The free workers are therefore free from, unencumbered by, any means of production of
their own” (Capital: A Critique of Political Economy, Volume 1, trans. Ben Fowkes [Penguin, 1990) 874).
On the ideology of free labor in the ante-bellum U.S., see Eric Foner, Free Soil, Free Labor, Free Men:
The Ideology of the Republican Party Before the Civil War (Oxford UP, 1995).
7
For example, the 1780 emancipation act of the state of Pennsylvania was couched in gradualist terms,
with compensation to go to former masters, through the unpaid labor of their former slaves for a set term of
years. This act explicitly likened the status of the recently “emancipated” to that of indentured servants.
See the text of Pennsylvania’s “An Act for the Gradual Abolition of Slavery” (Pennsylvania Law Book,
vol. 1, 399); enacted March 1, 1780. Another well-known example is the gradualist abolition of slavery in
the British West Indies, which allotted masters up to six years of unfree labor from their former slaves, in
the so-called “apprenticeship” period. Such an intermediary period was prescribed with a view towards
maintaining plantation production levels, and in order to “assimilate” former slaves into the wage-labor
economy and its attendant social-cultural formations. The worry over the productivity of free black labor
was great, and in what came to be called “the great experiment” of West Indian emancipation the main
concern was continuity in sugar production, which rested upon the successful transformation of an enslaved
population to one of “free labor.” See Seymour Drescher, “Free Labor vs. Slave Labor: The British and
Caribbean Cases,” in Terms of Labor, 50-86. For an insightful discussion of such “gradualist”
emancipation and the notions of “need” and “value” in assimilation, see Thomas C. Holt, “‘An Empire over
the Mind’: Emancipation, Race, and Ideology in the British West Indies and the American South” in eds. J.
Morgan Kousser and James M. McPherson, Region, Race, and Reconstruction (Oxford University Press,
1982) 283-313.
8
The U.S. Constitution, in Martin Shapiro, ed., The Constitution of the United States and related
documents (Northbrook, IL: AHM Publishing, 1973) 1-34.
9
Fehrenbacher, 193; Barbara Fields, “Slavery, Race, and Ideology in the United States of America,” New
Left Review vol. 181 (1990), 99; Stephen Best, “Fugitive Sound: Fungible Personhood, Evanescent
Property,” in The Fugitive’s Properties: Law and the Poetics of Possession (forthcoming, Chicago:
University of Chicago Press). The letter of the law, in its calculations for the purposes of states’
representation and taxation, refers to only two “types” of “persons.”
10
Barbara Field’s elision of this third term in her reading of the clause is striking, as she later presents a
brief pre-history of “race,” in which indentured servitude figures.
11
This is the argument, following David Brion Davis, of Barbara Fields. See Fields, 102.
12
Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English and American
Law and Culture, 1350-1870 (Chapel Hill: University of North Carolina Press, 1991) 10. Neither can we
assume that this other category of labor was insignificant at the time of the Constitution’s writing.
According to Feinsteld, Americans of this period distinguished “indentured servitude from slavery and
seem to have considered it a much less objectionable practice” (13). Mass importations of European
servants continued intermittently well past the American Revolution, until at least 1820. As late as 17851804, 45 percent of all German immigrants who arrived in Philadelphia arrived as redemptioners (11).
Surprisingly, Steinfeld does not offer a reading of the U.S. Constitution. I have not found any critic who
does read into the presence of this other labor system in the Constitution. Nonetheless, my argument is
indebted to Steinfeld’s good history of the career of indentured servitude.
Hoang Gia Phan - 14
13
James Madison, The Debates in the Federal Convention of 1878 Which Framed the Constitution of the
United States of America: Reported by James Madison, a Delegate from the State of Virginia, eds. Gaillard
Hunt and James Brown Scott (Buffalo, NY: Prometheus Books, 1987) vol. 2, 481; 487.
14
We would be more historically accurate in calling it the fugitive labor clause.
15
What the presence of the twinned “service or labour” indicates, further, is that the debt relation alluded to
in the concluding words of the clause – the fugitive “shall be delivered up on claim of the party to whom
such service or labour may be due” – can be conceptualized similarly in the cases of both indenture and
slavery. (I use this latter term recognizing its marked absence from the letter of the law.) In other words,
if, as I argue, both labor categories are present in this formulation, one can see that the labor category of
slavery, when employed in tandem with this other category of bonded-labor (which labor category
explicitly entails terms such as volition, contractual freedom, and compensation), is accompanied by the
traces of its own contractibility. Finally, the pairing of indenture and slavery in this clause also underscores
their fundamental similarity, which would lead both of them to be viewed later as “involuntary servitude” –
that is, their shared condition of legal compulsion. Such a provision for legal compulsion – this is a clause
providing for the delivering up of fugitive labor, after all – would be mobilized later to consolidate the
modern definition of “free labor,” as that category describing labor performed in “the absence of legal
compulsion” (Steinfeld, 138).
16
Once again, the debates over the wording of the Constitution are particularly revealing: many
representatives (from slaveholding and non-slaveholding states) objected to any explicit references to
“color” or “race” – indeed, many objected also to the use of the word “slave” itself. Only one decade after
the Constitutional convention, but long before the rise of broad anti-slavery agitation within the U.S., the
use of euphemisms for black slavery became a contentious topic of political debate. In the Congressional
debate over the Alien Friends Act of 1798, Federalists claimed that the “1808” provision in the U.S.
Constitution applied only to the slave trade. Jeffersonian Republicans, arguing against the Federalist’s
attempts to regulate immigration, denied this, asserting that the provision applied also to the immigration of
free persons. To do so, they argued that the word “person” was general, and included immigrants; and that
“migration” was used, which indicated a “free act of the will,” in addition to “importation,” which applied
exclusively to the traffic in persons chattel, slaves who were brought to into the United States without their
consent. This turn of the century debate over the interpretation of these words was only “resolved” when
Abraham Baldwin (the only representative then in the House who had helped frame the Constitution)
agreed that the clause applied to immigrants as well as to slaves. In doing so, he recalled the objection,
during the Constitutional debates, over the use of the word “slaves.” This is only one of many instances in
which the Constitutional inscription of the citizen raises the problematic dialectic of visibility – that
simultaneous visibility and invisibility of the national subject in the letter of the law. I explore this dialectic
of visibility/invisibility at greater length in the introduction to the dissertation. This semantic debate also
reveals the extent to which “original intent” was perceived as crucial to later debates over the legal form of
citizenship. Debates and Proceedings in the Congress of the United States, 5th Congress (1797-98). See
especially, Gallatin, 1979, Baldwin, 1978-1979 from the Debates, 5C. See also James Morton Smith,
Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell UP,
1956) 79-81.
17
The migration of white indentured servants ended in the U.S. by 1830 (Steinfeld, 11). This type of
laboring population was replaced by indentured labor migration that was predominantly Asiatic. See David
Northrup, Indentured Labor in the Age of Imperialism, 1834-1922 (Cambridge University Press, 1995) 4-7.
See also David W. Galenson, “The Rise and Fall of Indentured Servitude in the Americas: An Economic
Analysis,” Journal of Economic History 44.1 (1984) 1-26. See also Milton Konvitz, The Alien and the
Asiatic in American Law (Ithaca: Cornell UP, 1946), who notes that before the end of the Reconstruction
period many former slaveholders in the south expressed “lively interest in the possibility of substituting
Chinese coolie labor for Negro slavery. It had been suggested in Memphis, in 1869, that such a substitution
might be in order; and on several occasions about this time Southern planters had visited California with
this purpose in mind” (Konvitz, 12). Konvitz suggests that such a “substitution” became unnecessary with
the de facto end of Reconstruction and its emancipatory possibilities: “Once [the planters] realized,
however, that they had regained control of the Negro, their interest in Chinese labor swiftly abated” (Ibid.,
12). For a more specific, comparativist account of the relation between black labor and Chinese labor, see
C. McWilliams, Brothers Under the Skin (New York, 1943).
18
Plessy v. Ferguson, 163 U.S. 537 (1896).
Hoang Gia Phan - 15
19
Ibid., 542, my emphasis.
Ibid., 542.
21
Ibid., 542.
22
The primary meaning of imply is “to involve by logical necessity; entail.” If it is “slavery,” then it is
“involuntary servitude. Similarly, the entry for “implication, logical” in the Philosophy Dictionary (Harper
Collins, 2nd ed.) notes: “1. sometimes called definitional implication, deducibility of one statement from
another. 2. sometimes synonymous with logical entailment, the relationship of two statements whereby if
the first is true, then the other is also necessarily true.”
23
The form of the precedent effaces the legal debates this case originally engendered. The majority
opinion in Slaughterhouse cited by Brown figures as the authoritative construction of the Thirteenth and
Fourteenth Amendments; its narrow 5-4 majority and the many dissenting opinions are often forgotten.
24
The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873). On its face the Slaughterhouse Cases had no
direct relation to racial subjects or color-based discrimination. The plaintiffs were southern white butchers,
and their opponents a corporate body of seventeen white businessmen. In 1869 Louisiana had created by
charter the Crescent City Stock Landing Slaughter House Company, and enacted a public health statute that
deprived butchers of their own slaughterhouses and forced them to ply their trade on the premises of this
corporate monopoly for a fee. The butchers’ suit contended that the monopoly violated their right to pursue
a livelihood, guaranteed under the Fourteenth Amendment. As historians have noted, the suit’s central
question was whether or not the Amendment had expanded the definition of national citizenship for all
Americans, or only accorded blacks certain rights already enjoyed by whites. The majority opinion,
delivered by Miller, rejected the butchers’ plea, arguing that the primary intention of the post-war
amendments was the enlargement of rights for the recently freed blacks. Miller argued, in other words, that
the amendments had not altered traditional federalism; that states’ controls (or “police powers”) were to be
considered primary. The Slaughterhouse Cases decision was the first major decision in what Eric Foner
describes as the 1870s judicial retreat from an expansive definition of federal power, which moved to
restrict the scope of the postwar amendments. This retreat was a crucial development towards the end of
Reconstruction, as Congress had placed much of the burden for enforcement of blacks’ civil and political
rights on the federal judiciary. Slaughterhouse was the first judicial formalization of a return to state power
as primary, over and against federal authority. See Eric Foner, Reconstruction: America’s Unfinished
Revolution (New York: Harper and Row, 1988) 529; and Robert J. Kaczorowski, Politics of Judicial
Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866-1876 (New York:
Oceana Publications, 1985) xiii, 144. Yet this is not the only narrative concern that arises in the court’s
opinions, and considering the slight 5-4 majority, (as well as its later employment as precedent in the Plessy
opinion by Brown) it should not be read as the dominant one.
25
Slaughterhouse, 49. Emphasis in original.
26
Their sweeping history of the career of these terms evoke a well nigh Hegelian dialectic of lordship and
bondage, which merits quotation at some length: “The thirteenth amendment prohibits ‘slavery and
involuntary servitude.’ The expressions are ancient ones, and were familiar even before the time when they
appeared in the great Ordinance of 1787. … In that ordinance they are associated with enactments
affording comprehensive protection for life, liberty, and property; … for maintaining the inviolability of
contracts, … and the unrestrained conveyance of property by contract and devise. … The ordinance
became a law after Great Britain, in form the most popular government of Europe, had been expelled from
that territory. … Feudalism at that time prevailed in nearly all the kingdoms of Europe, and serfdom and
servitude and feudal service depressed their people to the level of slaves. The prohibition of ‘slavery and
involuntary servitude’ in every form and degree, except as sentence upon a conviction for crime, comprises
much more than the abolition of African slavery. Slavery in the annals of the world had been the ultimate
solution of controversies between the creditor and debtor; the conqueror and his captive; the father and his
child; the state and an offender against its laws. The laws might enslave man to the soil. The whole of
Europe in 1787 was crowded with persons who were held as vassals to their landlord, and serfs on his
dominions” (Ibid., 49-51. Emphases in original). The political economic persistence, or “survival,” of
these “feudal,” hierarchical structures, is explored by Karen Orren in her Belated Feudalism. Focusing on
the law of master and servant, Orren argues: “At the time the United States entered upon full-scale
industrialization after the Civil War, its politics contained, at the core, a belated feudalism, a remnant of the
medieval hierarchy of personal relations, a particularized network of law and morality – a system of
governance – that the word ‘feudalism’ conveys. It had been dislodged neither by the American
20
Hoang Gia Phan - 16
Revolution nor by the advent of the U.S. Constitution, but remained embedded within American
government – as state within a state – dividing public power, limiting the reach of legislation, setting the
bounds of collective action, well into the current century” (Orren, 3).
27
Their analogical reading, while posing more expansive significations of “servitude” and subjection, also
relies on a belief in the steady significations of other terms fundamental to the logic of free labor ideology:
“Men are surely subjected to a servitude when compelled to refrain from the use of their own land and
exercise of their own industry and the improvement of their own property”(Ibid., 51). In the logic of free
labor, men are in subject, servile, positions when denied the means of independent production, of the things
they “own”: property and the “industry” they possess in their social personhood.
28
Ibid., 72.
29
In his chapter on “So-Called Primitive Accumulation,” Marx had invoked a similar dialectic of visibility
to describe the relation between slavery and capitalist wage labor: “In fact the veiled slavery of wagelabourers in Europe needed the unqualified slavery of the New World as its pedestal.” Karl Marx, Capital:
A Critique of Political Economy Volume 1, trans. Ben Fowkes (Penguin, 1990) 925. For Marx, their
difference is one of forms of appearance, of qualifications, of veils. Similarly, in “The Process of
Accumulation of Capital,” Marx extrapolates his formulation of the commodity fetish to describe the social
relations of production under the capitalist mode of production. In wage labor, the worker’s labor-activity,
in addition to producing surplus-value, also produces variable capital, “the fund out of which he himself is
paid, before it flows back to him in the shape of wages.” The worker confronts the product of his own
labor-activity, capital, as a force alien to him. Even the wages the worker receives are the objectified
“drafts, in the form of money, on a portion of the product produced by” him and appropriated by the
capitalist. Yet the “transaction is veiled by the money-form of the commodity” Ibid., 712; 713; 717; 719.
Describing the wage relation in “capitalist production in full swing,” Marx adds: “The Roman slave was
held by chains; the wage-labourer is bound to his owner by invisible threads. The appearance of
independence is maintained by a constant change in the person of the individual employer, and by the legal
fiction of contract.” Marx’s analogy between the structural subordination of the worker necessary to
capitalist reproduction and the status of the Roman slave throws into relief the mystification in that
“appearance of independence” maintained by free market ideology’s “legal fiction of contract” – that is, the
legal form in which the worker is imagined as “free” to sell his labor, and as one who is on equal terms
with the capitalist. It is this very threat of such structural inequality that the butchers’ “argument against
monopoly” registers, despite the plaintiffs’ continued faith in the concept of free labor. Slaughterhouse is
particularly interesting in this regard, as the butchers still occupied the position of tradesman, and faced the
prospect, with increasing incorporation and the growth of monopolies, of slipping into that class of “freefloating” workers, in the Marxian sense of those who sold themselves on the labor market as commodities.
Their suit against the monopoly, and the narratives of involuntary servitude they invoked in argument, are
attempts to prevent the expropriation of their little means of subsistence, to prevent their own
transformation into “free labor” in that double sense described by Marx. Attempting to ward off this threat
of proletarianization, the butchers’ maintain a claim to American free labor ideology and its fundamental
“subject,” the independent laborer. Such an argument for the “right to labor” does not necessarily entail,
however, an argument against wage-labor as such. The popular eighteenth- and nineteenth -century ideal
of America as a republic of independent producers was indeed a persistent rallying concept in populist
labor politics. At the same time, however, the period was marked by a rapid growth of industry – an
increase in the very manufactures encouraged earlier by Alexander Hamilton’s federalist policies. In “On
Manufactures” (1791) Hamilton in many ways predicts what would occur in the industrial North in the
nineteenth century: the increasing specialization and division of labor, the increase in immigration, and the
growing participation of women and children in labor outside the home. See Alexander Hamilton, “On
Manufactures,” In Paul F. Boller, Jr. and Ronald Story, eds. A More Perfect Union: Documents in U.S.
History, Vol. 1: To 1877 (Boston, 1996), 95-99. With the increasing industrialization in the North came a
corresponding increase in wage laborers, and the consequent problematization of the republican ideals of
independence (and dependence). As David Roediger points out, “the gradual transition to wage labor from
1800 to 1860 (and beyond) was an extremely serious matter for labor republicans.” For many labor
radicals, however, the wage relationship in the 19th century “was compatible, at least temporarily, with a
just society.” The recurring difference, in the case of ante-bellum America, is that for class formation
within a slaveholding republic “comparisons with the truly enslaved also loomed.” Relative to the status of
the slave, the position of the “hireling” wage laborer could be an attractive one (rather than the mercenary,
Hoang Gia Phan - 17
dependent position of hirelings feared by Jefferson). The language of labor (and labor reform), in the early
19th century North, in its comparative gestures, “could lead to sweeping critiques of wage labor as ‘white
slavery’ but it also could reassure wage workers that they belonged to the ranks of ‘free white
labor’”(Roediger, 46). Indeed, this view can be seen in “The Republican Party Platform of 1860,” the
famous formalization of free labor ideology. The Republican Party was founded on the slogans of “free
soil” and “free labor.” The language of the Platform foregrounds the appeal of wage-labor as one possible
form of independence: “[W]e commend that policy of national exchanges which secures to the working
men liberal wages, to agriculture remunerating prices, to mechanics and manufacturers an adequate reward
for their skill, labor and enterprise, and to the nation commercial prosperity and independence”(in Boller
and Story, eds., 186). As with the language of radical labor reformers, the Republican Party Platform of
1860 links different types of wage labor with “independence.” Also, and perhaps more importantly, it
refers to the skill, labor and enterprise of the white working men of its address. The importance of these
references lies in their resonance with the language of white labor. Phrases such as “skill, labor, and
enterprise” worked to reinforce white labor’s use of whiteness as a source of working-class identity and
blackness, which in ante-bellum labor politics was its variously implicit and explicit other, as a signifier of
servility and dependency.
30
“Republicans had brought into the war an ideology grounded in the conviction of the superiority of free
to slave labor, which saw the distinctive quality of Northern society as the opportunity it offered the wage
laborer to rise to the status of independent farmer or craftsman.” Yet it was a social vision, Eric Foner
describes, already being rendered obsolete by the industrial revolution and the appearance of a class of
permanent wage laborers” (Foner, 28, 29). The multiple disadvantages of such an entrance into the free
market of labor were only compounded by the rise of post-bellum liberalism, and the increasing
disenchantment with Reconstruction. The extent to which such a rise in this conservative middle class
view affected negatively upon the aspirations of freedmen should not be underestimated. Not only
influential scholars like Francis Parkman but journal editors such as The Nation’s editor E.L. Godkin,
argued, for example, in favor of the reformers’ “financial science,” enthusiastically modeled after the
political economy of Adam Smith: free trade, the law of supply and demand, and the gold standard. Most
significantly, they argued against an activist government. Such calls for limited government participated in
the Northern retreat from efforts at economic and social uplift for the recently “emancipated.” (Foner, 498).
Many of these liberals argued for educational and property qualifications for voting, and spearheaded the
campaign for civil service reform. “Universal suffrage,” wrote Charles Francis Adams, Jr., in 1869, “can
only mean in plain English the government of ignorance and vice: it means a European, and especially
Celtic, proletariat on the Atlantic Coast, an African proletariat on the shores of the Gulf, and a Chinese
proletariat on the Pacific” (Foner, 497). For Adams and other reformers, egalitarian ideas were an
anachronism, expressive of the “unscientific sentimentalism” that characterized the ante-bellum era. The
egalitarian claims made by blacks at this time were either ignored or suppressed in this growing antipathy
towards the original ideals of Reconstruction. In the view of the new liberal reformers, Reconstruction
demonstrated the dangers of unbridled democracy and the political incapacity of the lower classes (Foner,
497). “‘Reconstruction,” declared The Nation, ‘seems to be morally a more disastrous process than
rebellion’” (Foner, 499). In an almost complete reversal, Reconstruction and its egalitarianism was far
worse than the actual “rebellion” – that is, the rebellion of the Southern Confederacy – itself.
31
Paradoxically, Judge Miller’s majority opinion in the Slaughterhouse Cases both affirms and contradicts
the already conflicted integrity of free labor ideology, when he insists on maintaining, in all constructions
of the post-war amendments, the “color” of their historical and legal subjects. It affirms, insofar as the
narrative of the Civil War he recalls – in which “whatever auxiliary causes may have contributed to bring
about this war, undoubtedly the overshadowing and efficient cause was African slavery” – is the story of
two conflicting systems of labor: free labor in the North, slave labor in the South. Yet Miller also
contradicts free labor’s basic precepts of mobility, vocational choice, and uncoerced labor.
32
See Orlando Patterson, Slavery and Social Death (Harvard UP, 1982).
33
Kaczorowski, 173-93; Foner, 530.
34
If we look to the testimony of African-Americans at this time, we see that the recognition of this
retrenchment was followed by attempts at some political agency in response to the turning tide. In the
resolutions of the Rhode Island Negroes on the Republican Party, 1882, there appear explicit references to
apparent betrayal by Northern republicans:
Hoang Gia Phan - 18
Resolved, That the Republican Party of our State has failed to properly recognize the worthiness and
faithful devotion of its colored adherents; that its continues to do so in the face of earnest but respectful
remonstrances.
Resolved, That while we cling to those principles which have made the party acceptable to the people...we
affirm our determination to support that person let him be allied by whatever party he may be, if he shall
convince us that he has the most regard for our rights and feelings as citizens of the State.
(Herbert Aptheker, ed., A Documentary History of the Negro People in the United States [New York:
1969]: 685).
The turn from the original ideals of Reconstruction, and the abandonment of its social programs, were
recognized very clearly by the delegates to this black state convention. The recognition motivates them to
suggest a break from the Republican party – a break historic in its contraposition to the traditional tie
between the black vote and previous Republican party platforms. The resolutions also evince an
understanding of the importance of the black vote at this time. Just as the delegates of the State Convention
of the Coloured Voters of New York declared in their endorsement of the Republicans in 1870, “the party
which predicted the ruin of the country if the negroes were allowed to vote are today moving heaven and
earth the get the votes of these same voters.” Philip S. Foner and George E. Walker, eds., Proceeding of the
Black National and State Conventions, 1865-1900 (Philadelphia: 1986): 422. The resolutions of these two
Black state conventions, separated by a decade, reveal the persisting belief in the power and significance of
the recently acquired suffrage, even as the later convention foregrounds their increasing disillusionment
with the Republican party after the end of Reconstruction.
35
Slaughterhouse, 69.
36
“It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in
the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to
the condition of serfs attached to the plantation, the purposes of the article might be evaded, if only the
word slavery had been used”(ibid., 69). The practice to which Miller alludes, of “reducing the [former]
slaves to the condition of serfs attached to the plantation” in order to maintain them in slavery was
widespread in the Southern states; and became even more so with the end of Reconstruction. In his report
to President Andrew Johnson on conditions in the Southern states when the war ended, Major General Carl
Schurz had attested to this: “It is, indeed, not probable that a general attempt will be made to restore slavery
in its old form, on account of the barriers which such an attempt will find in its way; but there are systems
intermediate between slavery as it formerly existed in the south, and free labor as it exists in the north, but
more nearly related to the former than to the latter, the introduction of which will be attempted” (Senate
Executive Doc. No 2, 39th Cong., 1st Sess., Vol. II, p. 32; cited in Herbert Hill, Black Labor and the
American Legal System [Madison: University of Wisconsin Press, 1985] 66).
37
Ibid., 72.
38
Plessy, 550.
39
The intermingling – and sometimes the interchanges – of “race” and “class” as categories of
identification are prevalent throughout Plessy v. Ferguson, the Slaughterhouse Cases, Yick Wo v. Hopkins,
and the various Chinese exclusions cases. While I do not claim that Brown here refers to “class” in the
sense used today – i.e., as index of economic group affiliation in a social division of labor – my argument
does proceed from the premise that such classifications as the “Chinese race” – when used to designate a
population of laborers as is the case in Plessy, Yick Wo, and all nineteenth-century cases involving Chinese
in America – entail the racialization of “class” and the class-ification of “race.” As I have argued with
respect to the precedent-setting Miller decision of the Slaughterhouse Cases, certain “classes” of laborers
correspond to certain “races.” My argument maintains a determinative effectivity for the ideology of
“race,” even as it maintains, via labor, a reciprocal and equal effectivity for “class.” For a related (though
more functionalist) argument on the “ethnicization of the work force” see Immanuel Wallerstein,
“Ideological Tensions of Capitalism,” in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class:
Ambiguous Identities (London: Verso, 1991) 29-36.
40
Ibid., 550, my emphasis. Around the example of this other race-discrimination constellate several
binaries, which are mobilized in turn against the plaintiff’s “construction” in Plessy regarding the “badge of
servitude” entailed in the separate-but-equal legislation: reasonable vs. unreasonable exercise of the police
power; good faith vs. “class” legislation; reasonable discretion vs. arbitrary and unjust discrimination.
Such a series of mutually exclusive binaries ultimately rest not on any universal impartiality of the law, as
Hoang Gia Phan - 19
Brown claims, but rather on the selective, particular interests of, in Brown’s own words, “the dominant
power”( Plessy, 551).
41
Saidiya Hartman analyses the police power and the court’s mobilization of “the social” in the final
chapter of her Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (New
York: Oxford UP, 1997). My reading of the Plessy decision agrees with her more detailed analysis as well
as her conclusions regarding the inequalities produced and reproduced by it, though its specific focus will
be upon other inequalities, namely, of labor and citizenship.
42
Plessy, 550. The antinomies of Brown’s presuppositions, however, and the contradictions in his legal
reasoning become most manifest in this very turn to “discretion.” Yick Wo v. Hopkins, Brown’s example of
judicial action against an “unreasonable” exercise of the police power that had crossed the divide from
reasonable “discretion” to unjust discrimination, contradicts the constructions of his earlier example of the
Slaughterhouse Cases. The Slaughterhouse precedent restricted any construction of the Thirteenth and
Fourteenth Amendments to the singular “purpose” and “pervading spirit of them all,” i.e., the ending of
black slavery in the U.S. Indeed, Brown explicitly embraces such constructions in his own legal reasoning.
The Slaughterhouse decision had insisted upon the centrality of black slavery in any construction of the
Thirteenth and Fourteenth Amendments in order to deny the white plaintiffs’ claim in that case to a subject
position described as “involuntary servitude.” Yet in contrast to the narrow constructions of the
Slaughterhouse decision, both the Yick Wo decision and Brown’s citation of it as counterexample rely upon
an expansive interpretation of the post-war amendments as their very ground of intelligibility. The court
asserted in Yick Wo that the “Fourteenth Amendment to the Constitution is not confined to the protection of
citizens. … [Its] provisions are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality” (Yick Wo, 309). The
antinomies of Brown’s logic of reduction thus center upon the difference between “privileges” and
“protections” as constitutive of freedom, as well as the ambiguous relation between those subjectivities
distinguished in the amendments as “citizens” and “persons.” Indeed, it is this very ambiguity that Justice
John Marshall Harlan, in his famous dissenting opinion, uses to argue against Brown’s opposition of the
term “reasonable” discretion (enforcing black-white segregation) with the unjust “discrimination” of
Chinese laborers in the Yick Wo case.
43
Pierre Bourdieu, “The objective limits of objectivism,” in Outline of a Theory of Practice trans. Richard
Nice (Cambridge University Press, 1998): “Thus the precepts of custom, very close in this respect to
sayings and proverbs. . . have nothing in common with the transcendental rules of a juridical code:
everyone is able, not so much to cite and recite them from memory, as to reproduce them (fairly
accurately)” (17). For an elaboration of habitus as a strategy-generating principle for individual action and
its relation to the field of the social, see “Structures and the habitus” in ibid., 72-95.
44
“It was adjudged in that case that the descendants of Africans who were imported into this country and
sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution
… that at that the time of the adoption of the Constitution they were “considered as a subordinate and
inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not,
yet remained subject to their authority, and had no rights and privileges but such as those who held the
power and the government might choose to grant them” (Plessy, 559-60, my emphasis). Against Dred
Scott’s inscription of a citizenship exclusive of the “subjugated” “class of beings” marked as “descendants
of Africans,” Harlan recalls the post-war amendments, which, “it was supposed, had eradicated these
principles from our institutions”(Ibid., 560).
45
Plessy, 561. Saidiya Hartman argues, along with the dissenting opinion of Harlan, that the Plessy
decision “revived the spirit of Dred Scott” (Hartman, 198). Hartman’s focus here is a symptomatic reading
of the majority decision. I would go further to suggest that “Plessy” (including both its majority and
dissenting opinions) not only resurrected Dred Scott but also revived, in significant ways, the exclusionary
letter of the law inscribed in that antebellum decision – that is, the language of citizenship. I want to attend
to the apparent paradox that Harlan’s’ laudable critiques of the Plessy decision and its inegalitarian
implications rely on another set of exclusions. Also, despite their many differences Harlan’s dissent shares
with the majority opinion certain identifications of race and labor that will prove fundamental to the labor
hierarchies under (re)construction at this time.
46
Ibid., 562, my emphasis.
47
The historical exclusion to which Harlan’s Plessy dissent refers was codified in the Chinese Exclusion
Acts of 1882; 1884; 1886; and 1888,47 and its validity upheld in the Chinese Exclusion Case of 1889 (Chae
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Ping v. United States, 130 U.S. 581 (1889)). The exclusion act of 1882 was passed to carry into effect an
1880 treaty between the U.S. and China, which allowed the U.S. to “regulate, limit, or suspend such
coming or residence [of Chinese laborers], but … not [to] absolutely prohibit it” (22 Stat. 826. Cited in
“Opinion of the Court,” Chinese Exclusion Case, 596). In addition to “suspending” for ten years the
emigration of Chinese laborers, the 1882 act made provisions for the identification of those Chinese
laborers legally residing in the United States, i.e., of those Chinese laborers “who were in the United States
November 17, 1880, or who should come within ninety days after the passage of the act” (Chinese
Exclusion, 597). The appellant in the Chinese Exclusion Case, Chae Chan Ping, had resided in San
Francisco for over twelve years, after emigrating in 1875. He left the United States June 2, 1887, in
possession of the certificate required under the act of 1882. 47 Upon his return October 7, 1888, Chae was
denied entry and detained, on the ground that his certificate had been annulled by the latest exclusion act,
of 1888. Charles McClain notes that one “contemporary estimate put the number of Chinese holding return
certificates at the time of the [Exclusion] Act’s passage at thirty thousand” (McClain, In Search of
Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America [Berkeley:
University of California Press, 1994] 194; citing the Examiner, Oct.3, 1888, p. 6, col. 2).
48
In his elaboration of the “proper construction” of the Fourteenth Amendment established in the
Slaughterhouse Cases, JudgeBrown had asserted that in addition to establishing the primacy of national
over state citizenship, “its main purpose was to establish the citizenship of the Negro” (ibid., 543). Such a
construction did not change the language of consensualism in which citizenship as such is defined. In the
Taney court’s view, black subjects were only calculated into the Constitution as slaves – thus they were
never considered part of the social compact through which the nation was founded. While Slaughterhouse
constructed the Fourteenth Amendment as an overturning of Dred Scott and its slave-holding history, it
maintains the figure of the social contract, which Taney’s Dred Scott decision had used to exclude “the
descendants of Africans” from U.S. citizenship. Similarly, Harlan’s dissent emphasizes the specificity of
black and white civic identity as the ground of freedom. While the Thirteenth Amendment “decreed
universal civil freedom in this country,” it was “found inadequate” to its purpose, Harlan argues, and was
thus supplemented by the Fourteenth, “which added to the dignity and glory of American citizenship … by
declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the States wherein they reside,’ and that ‘no State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty or property without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws” (Ibid., 555). In the wording of the Fourteenth
Amendment, the privileges and immunities clause is limited to the “citizen,” while the due process and
equal protection clauses apply to any “person” (Gerald Gunther, Constitutional Law [Westbury, NY: The
Foundation Press, 1991] 409). Harlan’s citation and paraphrase of the supplementary amendment
maintains the distinction between “citizen” and “person.” However, his distinction differs from Brown’s in
that for him the supplementary “citizen” displaces “race” as the primary category of legal cognizance.
While visible in the social person, “race,” according to Harlan, becomes invisible in the juridical figure of
the citizen. Thus, Harlan states his famous and much-quoted line: “Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens” (Plessy, 559). Yet in his general conclusion on the
amendments’ combined purpose of providing for individual freedom, Harlan elides the distinction between
privileges and protections accorded to each subject category (i.e., of “citizen” and “person,” respectively),
and speaks only of citizens’ rights: “These two amendments, if enforced according to their true intent and
meaning, will protect all the civil rights that pertain to freedom and citizenship” (Ibid., 555). Through
Harlan’s construction of the supplementarity of the Fourteenth Amendment, the already subordinate subject
termed “person” is forgotten, and the “freedom” inscribed in the Thirteenth Amendment itself becomes
possible only in and through citizenship.
49
Harlan’s argument foregrounds, in other words, the imbrications of the language of citizenship with the
ideology of assimilation, and the attenuation of universal humanist freedom in the particularity of national
culture. Interestingly, Harlan’s view contradicts the racial classification of the Chinese in People v. Hall
(1854), while affirming its racial-assimilationist logic. In this antebellum case, the California Supreme
Court ruled that Chinese immigrants could not testify against a white person in a court of law. Delivering
the majority opinion, Justice Murray argues that the Chinese were contained under the generic term:
“Indian.” He goes further, however, to argue that, even if the Chinese were not to be understood as
“Indians,” they would fall under the generic category of “Black,” as “contradistinguished from White”
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(People v. Hall [1854] 4 Cal. 399). Murray’s reasons for thus construing the legislative intent were posed
as a matter of cultural difference: “The evident intention of the act was to throw around the citizen a
protection for life and property, which could only be secured by removing him above the corrupting
influences of degraded castes. It can hardly be supposed that any Legislature would attempt this by
excluding domestic Negroes and Indians, who not unfrequently have correct notions of their obligations to
society, and turning loose upon the community the more degraded tribes of the same species, who have
nothing in common with us, in language, country, or laws.” His logic is an assimilationist one, insofar as
its cultural implication is that “domestic Negroes and Indians” can have, by virtue of years of residence
within and contact with Anglo-American institutions, a proper understanding of the social contract.
50
Ibid., 606.
51
As Field himself notes, “It declares in its first article” that the limitation or suspension of immigration
“shall apply only to Chinese who may go to the United States as laborers, other classes not being included
in the limitations.” Those Chinese subjects “proceeding to the United States as teachers, students,
merchants, or from curiosity” are distinguished from this laboring class of Chinese emigrants (Ibid., 596).
52
Ibid, 594.
53
As I have argued with respect to Slaughterhouse, Plessy, and Yick Wo, the obverse of free labor
ideology’s identification of abstract “free labor” with “white labor” is the racialization of other labor
regimes – race-labor identities that sustain free (white) labor’s self-identification.
54
Thus while in 1868 the Burlingame Treaty still declared “the mutual advantage of the free migration and
immigration” of U.S. citizens and Chinese subjects,” by 1880 Congress would declare that “the coming of
Chinese laborers to the United States … affects or threatens to affect the interests of that country” (Ibid.,
596). I would add that “interests” here is a both capacious and multivalent term, which contains and can
stand in for the economic, national, and “cultural” interests that gather around immigration exclusion. 54
Along with convicts, “Negro labor,” and “contract labor,” Chinese coolie labor epitomized this form of
“cheap labor.” The campaign handbook of the Democratic National Committee in 1884 emphasized
Chinese immigrant labor as especially threatening: “[I]t became necessary to protect the American
workingmen on the Pacific slope from the disastrous and debasing competition of Coolie labor” (cited in
David Montgomery, Citizen Worker [Cambridge UP, 1993] 144).
55
If, for the court, “race” and “labor” are inextricably bound together, the disruptions of them by migrant
labor return us to the concept of assimilation itself. David Lloyd has argued that culture, in “the sense of
self-formation or Bildung,” can “be understood as a learning to be like what we should like to like. That is,
as assimilation.” The structure of assimilation, according to Lloyd, is the structure of metaphor: “The
constitution of any metaphor involves the bringing together of two elements into identity in such a manner
that their differences are suppressed. Just so, the process of assimilation, whether in bringing two distinct
but equivalent elements into identity or in absorbing a lower into a higher element as by metastasis,
requires that which defines the difference between the two elements to remain over as a residue. Hence …
the product of assimilation will always necessarily be in a hierarchical relation to the residual, whether this
be defined as, variously, the primitive, the local, or the merely contingent.” David Lloyd, “Race under
Representation,” in E. Valentine Daniel and Jeffrey M. Peck, eds., Culture/Contexture (Berkeley:
University of California Press, 1996) 257-58. While Lloyd’s primary emphasis is on aesthetic culture
rather than culture in the sense of “the totality of life forms of a particular group or society”(Ibid., 250), his
formulation of assimilation as that bringing-into-identity of two distinct elements enables a better
understanding of the demands of Field’s “public good,” when supplemented by our understanding of
nineteenth-century race-labor identities. As the exclusive target and raison d’être of immigration
prohibition, Chinese immigrant labor allows us to see how the question of the assimilation of culture (in
both its aesthetic and anthropological senses) is also, and necessarily, one of the assimilation of labors.
56
Smith, Civic Ideals, 17.
57
My reading of the demand for assimilation is not to suggest, however, the complete success of such
assimilation. The problems of such assimilation into “free labor” were great, and the formerly enslaved
resisted political and legal attempts to reinsert them into another set of labor hierarchies. But this the topic
of a longer investigation.
58
Indeed, on this both the majority and dissenting opinions in Plessy agree: the social is divided from the
civic realm of formal legal equality.
59
Yet Chinese laborers, according to Field, “were content with the simplest fare, such as would not suffice
for our laborers and artisans. The competition between them and our people was for this reason altogether
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in their favor” (Chinese Exclusion, 595). The differences of “race” in Field’s argument for exclusion are
the differences in the needs of labor. For Justice Field, the “differences of race added greatly to the
difficulties of the situation [of labor competition]. … [T]hey remained strangers in the land, residing apart
by themselves, and adhering to the customs and usages of their own country. It seemed impossible for
them to assimilate with our people or to make any change in their habits or mode of living. … [T]heir
immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our
civilization” (Ibid., 595). Field’s emphasis on “racial” difference – translated here as differences in “habits
or mode of living” – codes the threat to U.S. free labor as a threat to U.S. culture, and even to national
civilization itself. We thus find here the source for Judge Brown’s invocation of the radically other
“Chinese race” in Plessy v. Ferguson. Such a narrative of culture-as-race enables the representation of
Chinese otherness as not only an inassimilable subject, but also as an unassimilable, and therefore constant,
threat.
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