“Free Subjects: Black Civic Identity and the Invention of the Asiatic”
Chapter 4 of my dissertation,
The Labors of Difference: U.S. Citizenship
and the Transformations of Legal and Literary Form, 1789-1900
(Work in progress; do not cite, etc.)
Hoang Gia Phan
Ph.D. Candidate
English Department
University of California - Berkeley
Abstract
The paper interrogates the black-white racial binary used to construct the concepts of
freedom and citizenship within the U.S. In its overall argument, it models ways in which
a reading of Asian labor migration to the U.S. can broaden an understanding of blackness,
whiteness, and civic identity, from a postcolonial critical perspective. I introduce the
paper with a discussion of indenture as a labor form, “in-between” chattel slavery and
free labor. Through tracing the status of indenture in the language of the Constitution, I
demonstrate how this in-between labor category of indenture enables new understandings
of the role of “race” in the inscription of citizenship. Second, I read the persistence of
this legal classification of race and labor in the post-Civil War afterlife of “free labor
ideology”; and its implications in the famous separate-but-equal ruling in Plessy v.
Ferguson. I account for the interesting uses, in Plessy v. Ferguson, of the arguments and
precedents of the Slaughterhouse Cases. Third, I discuss the unexpected and complex
uses, by both the majority and dissenting opinions of the Plessy ruling, of the figure of the
“Asiatic” indentured laborer. Through readings of the status of the Chinese migrant
laborer, in the Slaughterhouse Cases, Plessy v. Ferguson, Yick Wo v. Hopkins, and the
Chinese Exclusion Case, I show how the legal construction of a civic identity between
black and white after the Civil War (and the end of Reconstruction) depends upon the
invention of a radical racial alterity, in the form of the Asiatic. Fourth, in my concluding
discussion of the court’s rhetoric of the “public good,” I highlight the ways in which
citizenship, as legal form and cultural concept, relies on a demand for assimilation, whose
logic codes “race” as “culture.” My broader conclusion is that such cultural demands for
assimilation are also, and necessarily, demands for the maintenance of the racialized labor
hierarchies established and reproduced by U.S. slavery and free labor ideology. I reveal
the national “public good” to be the reproduction of the race-labor hierarchies of this U.S.
division of labor, and this system’s demand for the reproduction of an exclusive subject
of “freedom”: the citizen as free laborer.
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I. The Subject of Citizenship
In the famous decision on the Dred Scott case (1857), Justice Roger B. Taney
formulated his opinion as a reading of the Constitution’s language of citizenship.1 In
converting “the question of whether Dred Scott was a citizen of Missouri into the
question of whether he was a citizen of the United States,” Taney also denied the
possibility that blacks, even if recognized as free by a state, had been embraced in the
word “citizens.”2 His reading of constitutional history, as Don Fehrenbacher has argued,
disavows the consideration of blacks as either “free inhabitants,” “citizens, or even
“persons.”3 While Dred Scott was overturned in post-bellum legislations, the terms of
these subject-positions continued to be invoked by various political actors and opponents.
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
subjection to some other.4 Etienne Balibar’s elaboration of the subject in juridical terms
provides one point of departure for my argument. If, as 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,”5 how do we
understand the histories of unfreedom which inhered in these moments?
Rogers M. Smith has argued 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.”6 Reading
against variants in the tradition of Tocquevillean scholarship which focuses on a singular
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genealogy 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.7 Smith suggests that
throughout the history of citizenship laws – codifications through which American
officials “literally constituted the American civic community”8 – political actors have
relied on ascriptive hierarchies to promote and maintain exclusions based on race, gender,
and class.
I am interested to explore an aspect of citizenship of which liberal histories such
as Smith’s gives little account, namely labor.9 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.10 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.11
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.”12 With labor as the point of entry into the question of
citizenship and subjectivity, this essay investigates various exclusions based not solely on
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“race,” but also on forms of labor, which, through the rituals of law, become racialized.
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.”13
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 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. For example, the 1780 emancipation act of Pennsylvania was
couched in gradualist terms, with compensation to go to former masters, through the
unpaid labor of their former slaves (then explicitly likened to indentured servants) for a
set term of years.14 Similarly, the abolition of slavery in the British West Indies was not
immediate, but rather allotted masters up to six years of mostly 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.15
This middle term of indenture, the possibility of transition from one form of
bonded labor to the system “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 “threefifths” clause thus: “Representatives and direct taxes shall be apportioned among the
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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.”16 Critics are right to remark upon the absence of
“black,” “color,” or even “race” in the catalogue of this clause’s accounting. The letter of
the law, in its calculations for the purposes of states’ representation and taxation, does
indeed refer to only two “types” of persons.17
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. The
constitutional provision attempts a comprehensive survey of the persons then present in
the states, even as it resists explicit references to racially marked freedom or unfreedom.
Supplementing its description of “whole free persons,” the clause adds: “including those
bound to service for a term of years” – that is, indentured servants.18 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,19 they are also legally different: they will be counted as whole,
those other persons will not.
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Why should this other labor category matter? I would suggest that it displaces a
binary often assumed in readings of the Constitution, and in understandings of slavery
generally, between free labor and the unfreedom of slavery. This third term, which I have
suggested is explicitly noted in the Constitution to be counted as a whole number, adds
productive problems to familiar critical narratives of slavery, and 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.”20
Neither can we assume that this other category of labor was insignificant at the
time of the Constitution’s writing. According to Steinfeld, Americans of this period
distinguished “indentured servitude from slavery and seem to have considered it a much
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less objectionable practice.”21 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.22
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 brief clause. I would suggest that “service” applies to indentured servitude, while
“labour” in this context refers to slave labor. This needn’t be a strict mapping of terms; it
is possible that “labor,” rather than “service,” refers to indentured servitude, and that both
terms are likewise applied differently to those “other persons” of the unmentionable
slavery. It is possible as well that, in the elliptical contortions of the Constitution’s
language, both terms are included for good measure.
James Madison’s Notes from the Federal 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 labor practices of
the slave-holding 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 formulation of the new provision, with the
paired “service or labour” coming to stand in for them.23 It is thus important to note that
the clause providing for the return of fugitive labor applied to both slaves and indentured
laborers. (It is also important to add that we would be more historically accurate in
calling this the fugitive labor clause.) Both types of labor, free and unfree, are erased
from this monumental scene of writing.
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
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– 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 performed in
“the absence of legal compulsion.”24
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.
Again, the historical legislative debates over the wording of the Constitution are
particularly revealing in this regard, and confirm my inflected re-readings of the clause:
many representatives (predominantly from slaveholding states) objected to any explicit
references to “color” or “race” – indeed, they 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
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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” in the letter of the Constitutional document.25 This is only
one of many instances in which the Constitutional inscription of the citizen and other
national subjects raises the problematic dialectic of visibility – that simultaneous
visibility and invisibility of the subject in the letter of the law.26
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.” The migration of white indentured servants
ended in the U.S. by 1830,27 to be replaced by indentured labor migration that was
predominantly Asiatic.28 Inflecting, in the direction of indenture, David Eltis’ thesis of an
“ethnic divide,” I argue that Chinese coolie labor was a form of labor still thinkable
within nineteenth-century Anglo-American civic ideology precisely because it accorded
with its system of increasingly racialized labor regimes, and, most importantly, the
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understanding of “free” worker and/as subject-citizen. Correlative to the historical shift
in migrant population movements (decrease in European indenture, increase in nonEuropean indenture), however, is the threat of labor competition, which, later in the
nineteenth century, would feed into the American labor movement’s racist, antiimmigration position.
II. The Slaughterhouse Cases, Plessy v. Ferguson, and the Logic of the Precedent
Four decades after the Dred Scott decision denied citizenship and personhood to
African-Americans, the ambiguous relation between black citizenship and “freedom” was
foregrounded once again in the case of Plessy v. Ferguson (1896).29 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.30
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Justice Brown’s citational practice aims to restrict the signification of “slavery” as well as
what for Brown is its legal- ideological opposite, “freedom.”31 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 post-emancipation (and post-Reconstruction) 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.”32 Here slavery entails, by logical necessity, “involuntary
servitude.” If it is “slavery,” then it is “involuntary servitude.”33 Involuntary servitude
functions as the necessary and sufficient condition for the state of unfreedom called
“slavery.” 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 terms, centering as they do
around the notion of volition in lord-bondsman relation, lead Brown to the strikingly
redundant final category, “involuntary slavery.” If the essence of “slavery,” in Brown’s
understanding, is “involuntary servitude,” what is “involuntary slavery”? Such phrasing
may be a terminological slip, a moment of equivocation, caused by Brown’s attempt to
situate slavery within “involuntary servitude.” Yet it is also, and primarily, a conceptual
redundancy required by Brown’s legal hermeneutic. The redundancy and equivocations in
Brown’s phrasing – “involuntary slavery” replaces “involuntary servitude” – reveal the
strained logic of his terms. “Slavery” in the Plessy decision designates one form of
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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 opinion34 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.35 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.36
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,
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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 African Americans. Miller argued, in other words, that the
amendments had not altered traditional federalism; that states’ controls (or, “police
powers”) were to be considered primary. Slaughterhouse was the first judicial
formalization of a to return to state power as primary, over and against federal authority.37
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.
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 notes, 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.”38 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
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protection rests on their significations of the phrase “slavery and involuntary servitude.”
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.39
The butchers’ inclusion then, rests on their “subject” position as virtual slaves under the
legally enforced dominion of a corporate monopoly. 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 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.40
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Their analogical reading, while posing a more expansive signification 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.”41 In the logic of free labor,
men are in subject, servile, position when denied the means of independent production, of
the things they “own”: property and the “industry” they possess in their social
personhood.
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.42
Insisting on a strict contextualist reading of the “pervading spirit,” of their original
purpose, Miller argues against too-free a play of language which might extend the
amendments, as the plaintiffs would have it, to the world of “free labor.” 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
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agitation in the world of “free labor” – of which blacks were formal members after the
Civil War.
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 wage-labourers in Europe needed the unqualified
slavery of the New World as its pedestal.”43 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.” Marx,
describing the wage relation in “capitalist production in full swing,” thus concludes: “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.”44
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
Hoang Gia Phan - 17
“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 “free-floating” 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: “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.”45 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:
Hoang Gia Phan - 18
the increasing specialization and division of labor, the increase in immigration, and the
growing participation of women and children in labor outside the home.46 With the
increasing industrialization in the North came a corresponding increase in wage laborers,
and the consequent disturbance 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 antebellum 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,
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.’”47
What happens to these 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 legal form and
commodity form) while persisting in the social? Do the black slaves of that “unqualified
slavery” to which Marx refers, in gaining legal freedom, merely enter the “veiled slavery”
Hoang Gia Phan - 19
of wage labor under capitalist production? “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.”48 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.”49 In the post-bellum years the
increasing poverty of such a concept as “free labor” became only too apparent to the
recently freed African-Americans, who in many ways emerged from enslavement in the
same sense as Marx’s workers, “free in the double sense.”50
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 possible 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. His 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 postwar amendments denies the butchers’ inclusion under the protections of the amendments,
denying their free-labor reading of “servitude.” Finally, and even more significant to the
fates of African-American citizens, his insistence on the centrality of black enslavement
in the causal history of the war elides the significance of the confrontation between the
Hoang Gia Phan - 20
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.51 In the
contradictory post-bellum dialectic of the (in)visibility of “race” in the formal category of
citizenship, recently emancipated African-Americans found themselves figured as the
“subjects” of one legal narrative, only to be erased from the scene of another.52
Miller attempts to contain the scope of the post-war amendments to black freedom
through a containment of signification. In particular, Miller argued 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. “Involuntary servitude” was taken up by the plaintiffs and the dissenting
judges and expanded to comprehend the economic compulsion of the monopoly.
Anxious over 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):
That a personal servitude was meant is proved by the use of the word
‘involuntary,’ which can only apply to human beings. The exception of servitude
as a punishment for crime gives an idea of the class of servitude that is meant.
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.53
In his attempts to limit the meaning of “involuntary servitude,” Miller turns to the notion
of volition as the indication of the personal, “which can only apply to the human being.”
Yet this is insufficient to counter the claim of the Slaughterhouse plaintiffs; indeed, alone
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the concept of “volition” and/or its curtailment supports their claim. Miller’s logic
proceeds by increments of enclosure: servitude the larger circle, and slavery its subset.
His explanation is that involuntary servitude is intended as a strategic enclosure, in order
to prevent the use of the pretense of indentured servitude to perpetuate black slavery, in
disguised form. “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.”54
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.”55 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 nownaturalized 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
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Miller, is always-already the sign of slavery, and black indenture or apprenticeship is a
logical impossibility. It must be slavery masked.
III. Inventing the Asiatic
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
– historically the sign of state sovereignty over and against federal authority – 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.56
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.”57
Brown relies on the coding of race-as-class, as the supplement to mere race-specific
legislation. 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.
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Such a series of mutually exclusive binaries ultimately rest not on any universal
impartiality of the law, as Brown claims, but rather on the selective, particular interests
of, in Brown’s own words, “the dominant power.”58 “So far,” Brown argues, “as a
conflict with the Fourteenth Amendment is concerned, the 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.”59 Brown’s
distinction between “discretion” and “discrimination” itself relies on local arbitration, on
that field of particularity identified as “the social,”60 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.”61 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.62
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
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Fourteenth Amendments to the singular “purpose” and “pervading spirit of them all,” i.e.,
the ending of black slavery in the U.S.63 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.64 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.”65 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 legal subjects 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.
In the only dissent to the Plessy ruling, Justice Harlan likens the separate-butequal ruling of the majority opinion to the “pernicious” Dred Scott decision of four
decades earlier:
Hoang Gia Phan - 25
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.”66
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.”67 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 exclusions68: “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.”69 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,”70
Harlan invokes another “race” as the truly radical other that can never be 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. 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 that he shares with it.
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In his elaboration of the “proper construction” of the Fourteenth Amendment
established in the Slaughterhouse Cases, Judge Brown 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.”71 Such a construction did not change the
language of consensualism in which citizenship as such was 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 maintained the figure of the social contract,
which Taney’s Dred Scott decision had used to exclude “the descendants of Africans”72
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.’73
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.”74 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
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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.”75 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.”76 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.
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. We might
recall here Harlan’s exclusion of that other “race” in his identification of the color-less
citizen: “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.” 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
Hoang Gia Phan - 28
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). 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.77 Thus the tension between expansive and narrow inscriptions of postbellum freedom refers back to the problematic of consensualist citizenship itself – a
concept whose very form, as we will see, is dialectically related to the hierarchies of
“race” and labor in the nineteenth century.
In addressing the question of assimilability and its relation to citizenship, we first
need to underscore the point that the contract of citizenship is one of formal reciprocity.
Peter Schuck and Rogers Smith have described the “Citizenship Clause” of the
Fourteenth Amendment as a mix of ascriptive notions, explicit in the amendment’s
definition of birthright and naturalized citizenship, and consensualist elements,
introduced into the clause through the “jurisdiction requirement.” The jurisdiction
requirement, they note, “demanded reciprocal consent – not only the complete allegiance
of the individual (which might be actual, or, as in the case of children, ascribed) but also
the consent of the nation to his membership.”78 The “we” of the self-other contractual
relation, which subtends what we can call Harlan’s identification-by-exclusion of
subjects, is the U.S. government itself, while the other party in this social compact is the
subject who, in Harlan’s terms, is “permitted” citizen status.
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Such national consent is denied persons “belonging to the Chinese race” on the
grounds of their especially radical “racial” difference. Yet if citizenship’s contractual
premise is a bilateral recognition, so too is assimilation. As Milton Konvitz has pointed
out, Chinese emigrants to the U.S. were not allowed to testify in court; had special taxes
imposed on them; could not vote; were excluded from U.S. schools; and, perhaps most
significantly, were denied the possibility of citizenship through naturalization.79 Harlan’s
logic of assimilability-based citizenship is circular: the Chinese are denied citizenship
because of their radical difference; yet they cannot assimilate because they are denied any
equality with citizens. Chinese exclusion here functions as that point in U.S. legal
thought when the ideology of race converges with the fictions of social contract.
The historical exclusion to which Harlan’s Plessy dissent refers was codified in
the Chinese Exclusion Acts of 1882; 1884; 1886; and 1888,80 and its validity upheld in
the Chinese Exclusion Case of 1889.81 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.”82 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.”83 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
Hoang Gia Phan - 30
1882.84 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.
According to Justice Stephen Field, who delivered the court’s ruling, “the
enforcement of [the 1882 act] … was attended with great embarrassment, from the
suspicious nature, in many instances, of the testimony offered to establish the residence of
the parties, arising from the loose notions entertained by the witnesses of the obligation of
an oath.”85 This failure of testimonial evidence, ascribed to the assumed perfidy of the
dissimulating Asiatic, disrupts the law’s attempts to identify its subjects. According to
Field’s narrative, the supplementary acts were in response to the continuing possibility of
evasions of this identification provision, and after the putative persistence of evasions the
1888 act invalidated any such evidence of legal residence altogether.
Entitled a “supplement” to the first exclusion act of 1882, the 1888 act actually
redefines the status of Chinese laborers. While the first act permits those Chinese
laborers already residing within the United States to leave and return with proper
documentation, in the 1888 act “every certificate heretofore issued in pursuance [of the
1882 act] is hereby declared null and void and of no effect.” The final section of the 1882
act removes any possible ambiguity as to its intent: “That all such part or parts of the act
to which this is a supplement as are inconsistent herewith are hereby repealed.”86 The
Chinese Exclusion Case thus concerned the validity of the latest exclusion act of 1888,
prohibiting Chinese laborers from entering the United States, regardless of their
possession of the certificates of residence issued under the first exclusion act of 1882.
The lawyers for the appellant did not contest the U.S. right of sovereignty to
prohibit the entry into its territories a subject of foreign states, but rather the
Hoang Gia Phan - 31
congressional power to prohibit the appellant’s return. 87 Chae Chan Ping had migrated
to the U.S. under the Burlingame Treaty of 1868,88 which declared “the inherent and
inalienable right of man to change his home and allegiance, and also the mutual
advantage of the free migration and immigration of their citizens and subjects
respectively from one country to the other for purposes of curiosity, trade, or as
permanent residents.”89 As Chae Chan Ping’s right of residence was granted under the
Burlingame Treaty, they argued, this right could not be then taken away by mere
legislation. More importantly, they further argue against this practical expulsion on the
grounds that his re-entry was a vested right, acquired by contract under the exclusion acts
which carried into effect the treaty of 1880, which was the supplement to the Burlingame
Treaty of 1868:
The provisions of acts of 1882 and 1884 . . . contained an offer on the part of the
United States to every Chinese laborer then in this country, if he should leave the
country and comply with the conditions therein for such case specified, to permit
him to return. That offer was accepted and the conditions were fully complied
with by the appellant. This created a perfect contract, binding upon the United
States.90
As an ex post facto law that deprived the appellant of his right to return, they claimed,
the 1888 act was unconstitutional. The structure of reciprocity obtains here in the
appellant’s argument, as it does in the “contracts” of citizenship and assimilation. The
appellant’s argument relies on the assumption that “States, as well as individuals, are
moral agents, and the common rules of morality and good faith are as binding upon them
as upon individuals.”91 Equally prevalent is the fictive parity between nation-state and
individual that sustains the language of contract. For the case would turn, ultimately, on
Hoang Gia Phan - 32
the U.S. Supreme Court’s “loose notions” of what contracts, if any, bound the United
States.
The court agreed with the appellant’s claim that the 1888 act contravened the
stipulations of the Burlingame Treaty and its exclusionary supplement of 1880. Indeed, it
even conceded the language of contract used to describe them: “A treaty, it is true, is in
its nature a contract between nations and is often merely promissory in its character,
requiring legislation to carry its stipulations into effect.”92 Such contravention did not
invalidate the 1888 act, however; according to the court the “treaties were of no greater
legal obligation than the act of Congress … and no paramount authority is given to one
over the other.” As both were acts of congress, “the last expression of the sovereign will
must control.”93 In other words, the court maintained the validity of the 1888 act, while
explicitly declaring the right of the government to break the contract between nations. As
expression of the sovereign will, congress can “decline to keep the corresponding
engagement” of a treaty, if “circumstances arise which would not only justify
disregarding their stipulations, but demand in the interests of the country that it should do
so.”94 As we will see in Justice Field’s history of the “Oriental invasion,” these
circumstances were the possible threats to free (white) labor posed by Chinese immigrant
labor.
As the conflict between the 1868 and 1880 treaties did not invalidate the 1888 act,
the only question that remained to the court was whether Congress had the power to
prohibit the emigration of Chinese laborers. As noted earlier, the appellant’s lawyers did
not deny this general right of sovereign nations. They did claim, however, that “while a
sovereign government, [the Unites States] is yet one which can exercise only those
Hoang Gia Phan - 33
powers of sovereignty which are enumerated in and delegated by the instrument which
created it.”95 The question thus becomes: was the prohibition of Chinese emigration, in
time of peace, one of those powers of sovereignty delegated to Congress by the
Constitution? In his opinion against the appellant’s claim to a right of reentry as acquired
by contract, Justice Field answered this question in the affirmative:
The power of exclusion of foreigners being an incident of sovereignty belonging
to the government of the United States as a part of those sovereign powers
delegated by the Constitution … cannot be granted away or restrained on behalf of
any one. The powers of government are delegated in trust to the United States. …
The exercise of these public trusts is not the subject of barter or contract.
Whatever license, therefore, Chinese laborers may have obtained, previous to the
act of October 1, 1888, to return to the United States after their departure, is held
at the will of the government, revocable at any time, at its pleasure.”96
Here Field shifts immigration regulation from the language of economics to the
nationalist register of sovereignty as such; from the realm of “commerce” to that of
“intercourse” between nation-states. Accordingly, the conceptual field of “contract” may
have applied with respect to international treaty, but had no application with respect to the
individual Chinese subject’s relation to the U.S. The residence of Chinese laborers in the
U.S. was not a “vested right”; rather, their presence was merely tolerated by the
governments: all residence was temporary.
While historically regulated under the commerce power of congress, immigration
becomes in the Field ruling primarily a question of national sovereignty in the
international sphere: “If it could not exclude aliens it would be to that extent subject to
the control of another power”; to “preserve its independence, and give security against
foreign aggression and encroachment, is the highest duty of every nation.”97 In this shift
to the national(ist) frame, the presence of Chinese laborers is also refigured: “It matters
Hoang Gia Phan - 34
not in what form such aggression and encroachment come, whether from the foreign
nation acting in its national character or from vast hordes of its people crowding in upon
us.”98 In Field’s nationalist imaginary, immigration itself becomes the site at which the
nation form converges with the body of the individual “subject.” Chinese laborers, the
“vast hordes crowding in upon” the U.S., are the bearers of an analogy between race and
nation, and their presence figured as an act of national aggression.
IV. The Public Good
Considered alone, however, the “race” of the Chinese subjects is not the reason
for the government’s (and Field’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 Field the natural right and necessity of exclusion in
maintaining domestic “peace and security.”99 Field’s 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.
The treaty of 1880 which provided for the recognized U.S. right of exclusion was
directed explicitly towards laboring migrants. 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.100 Accordingly, all the exclusion acts passed to carry this treaty into
effect named only Chinese laborers as their subjects.
Hoang Gia Phan - 35
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 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.101
Field’ narrative of Asiatic indenture in the U.S. throws into relief the structural link
between labor competition and anti-immigration sentiment. 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 both the ideology of free labor and free (white)
labor’s self-identification. 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. 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,”
Hoang Gia Phan - 36
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”.102 Along with
convicts, “Negro labor,” and “contract labor,” Chinese coolie labor epitomized this
degraded “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.”103
Such identifications of certain “races” with certain types of “labor” suggest also
that the structure of what Rogers Smith has called the “ascriptive hierarchy”104 of race
that determined citizenship-law in the nineteenth century maps onto the hierarchy of labor
regimes described earlier in this essay. As my mapping of the nineteenth-century
transvaluation of the “value” of Chinese immigrant labor suggests, the “Chinese race”
figures as that form of labor that degrades and threatens the status of “free labor.”
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.105
Hoang Gia Phan - 37
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”106 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.
Free (white) labor figures at the top of the nineteenth-century hierarchy of racelabor 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.”107 In the metaphoric structure of such assimilation, moreover, the differences of
race are maintained – the “separate but equal” logic of the Plessy ruling – while ideally
subordinated to civic identity.108 Similarly, that “residue” of race-ascribed difference
enables the subordination of these assimilated black subjects within the hierarchical
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.” Yet Chinese laborers, according to Field, “were content with
the simplest fare, such as would not suffice for our laborers and artisans. The
Hoang Gia Phan - 38
competition between them and our people was for this reason altogether in their favor.”109
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.110
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. The path of this Chinese migrant laborer, as
he figures in the Slaughterhouse Cases, Plessy v. Ferguson, Yick Wo v. Hopkins, and the
Chinese Exclusion Case, reveals the national “public good” to be the reproduction of the
race-labor hierarchies of the U.S. division of labor, and this system’s demand for the
reproduction of an exclusive subject of “freedom”: the citizen as free laborer.
I thank Professors Stephen M. Best, Saidiya Hartman, and Angela Harris for reading earlier drafts of this
essay.
1
Dred Scott v. Sanford, 19 How. 393 (1857).
2
Don E. Fehrenbacher, Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective (Oxford
UP, 1981) 192.
3
Ibid., “The Opinion of the Court,” esp. 194-199.
4
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,
Hoang Gia Phan - 39
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 Etienne Balibar, “Subjection and
Subjectivation,” in Joan Copjec, ed., Supposing the Subject (London: Verso 1994) 8.
5
Balibar, 12.
6
Rogers M. Smith, Civic Ideals (New Haven: Yale UP, 1997) 2.
7
Ibid., 6.
8
Ibid., 7.
9
Like Karen Orren I proceed from the “primacy of labor.” See 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).
10
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).
11
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.
12
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.
13
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).
14
See the text of Pennsylvania’s “An Act for the Gradual Abolition of Slavery” (Pennsylvania Law Book,
vol. 1, 399); enacted March 1, 1780.
15
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.
16
The U.S. Constitution, in Martin Shapiro, ed., The Constitution of the United States and related
documents (Northbrook, IL: AHM Publishing, 1973) 1-34.
17
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, University of
Chicago Press).
18
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.
Hoang Gia Phan - 40
19
This is the argument, following David Brion Davis, of Barbara Fields. See Fields, 102.
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. Surprisingly,
Steinfeld does not offer a reading of the U.S. Constitution. I have not found any critic who does read 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.
21
Ibid., 13.
22
Ibid., 11.
23
James Madison, The Debates in the Federal Convention of 1787 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.
24
Steinfeld, 138.
25
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.
This semantic debate also reveals the extent to which “original intent” was perceived as crucial to later
debates over the legal form of citizenship.
26
I explore this dialectic of visibility/invisibility at greater length in the introduction to the dissertation.
27
Steinfeld, The Invention of Free Labor, 11.
28
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).
29
Plessy v. Ferguson, 163 U.S. 537 (1896).
30
Ibid., 542, my emphasis.
31
Ibid., 542.
32
Ibid., 542.
33
The primary meaning of imply is “to involve by logical necessity; entail.” 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.”
34
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.
35
The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).
36
Eric Foner, Reconstruction: America’s Unfinished Revolution (New York: Harper and Row, 1988) 529.
37
Ibid., 529; 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.
38
Slaughterhouse, 49. Emphasis in original.
39
Ibid., 49-50. Emphasis in original.
40
Ibid., 51. Emphasis 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
20
Hoang Gia Phan - 41
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 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).
41
Ibid., 51.
42
Ibid., 72.
43
Karl Marx, Capital: A Critique of Political Economy Volume 1, trans. Ben Fowkes (Penguin, 1990) 925.
44
Ibid., 712; 713; 717; 719.
45
Ibid., 874.
46
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.
47
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 antebellum labor politics was its variously implicit and explicit other, as a signifier of servility and dependency.
48
Foner, 28.
49
Foner, 29.
50
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.
51
Kaczorowski, 173-93; Foner, 530.
52
If we look to the testimony of blacks 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 - 42
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.
In 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.
53
Slaughterhouse, 69.
54
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).
55
Ibid., 72.
56
Plessy, 550.
57
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 the political economic register of “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.
58
Plessy, 551.
59
Ibid., 550, my emphasis.
60
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.
61
Plessy, 550.
Hoang Gia Phan - 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.
63
“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” (Miller, SC 72).
64
The structural similarities between the Slaughterhouse Cases and Yick Wo v. Hopkins are striking: both
involved tradesman facing a perceived monopoly; local health and public safety legislation passed under the
claim of the police power; claims for protection under the post-war amendments; and debates over the
meaning of the very terms of the amendments themselves.
65
Yick Wo, 309. While positioned against the Slaughterhouse Cases in Brown’s dichotomy of precedents,
the decision in Yick Wo v. Hopkins also formulates the condition of unfreedom called slavery in the
language of labor: “For, the very idea that one man may be compelled to hold his life, or the means of
living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of slavery itself” (Yick Wo, 370).
66
Plessy, 559-60, my emphasis.
67
Ibid., 560.
68
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.
69
Plessy, 561.
70
Ibid., 562, my emphasis.
71
Ibid., 543.
72
Ibid., 559.
73
Ibid., 555.
74
Gerald Gunther, Constitutional Law (Westbury, NY: The Foundation Press, 1991) 409.
75
Plessy, 559.
76
Ibid., 555.
77
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” (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 AngloAmerican institutions, a proper understanding of the social contract.
62
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78
Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American
Polity (New Haven: Yale UP, 1985) 84, original emphasis.
79
Konvitz, 7-11.
80
22 Stat. 58 (1882); 23 Stat. 115 (1884); 25 Stat. 476, 477 (1886); 25 Stat. 504 (1888).
81
The Chinese Exclusion Case: Chae Ping v. United States, 130 U.S. 581 (1889).
82
22 Stat. 826. Cited in “Opinion of the Court,” Chinese Exclusion Case, 596.
83
Chinese Exclusion, 597.
84
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” (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).
85
Ibid., 598.
86
22 Stat. 826, cited in ibid., 600.
87
“Argument for the Appellant,” in ibid., 585.
88
16 Stat. 739.
89
Ibid, Art. V, cited in Chinese Exclusion, 585.
90
Chinese Exclusion, 587. They continue to employ the language of contract throughout their argument:
consideration; promise; performance; and expectation (587-88). Finally, they argue that upon execution of
the contract by the appellant, his right “was as perfectly vested as the title to real property is vested by the
execution and delivery of a deed” (587). In a longer argument than can be elaborated here, one might
pursue the structural analogies between property inheritance and “cultural” inheritance, and their possibly
homologous relation to the perpetuation of national coherence.
91
Ibid., 588.
92
Ibid., 600.
93
Ibid., 600.
94
Ibid., 600-601.
95
Ibid., 585.
96
Ibid., 609
97
Ibid., 604; 606.
98
Ibid., 606.
99
Ibid., 606.
100
Ibid., 596.
101
Ibid, 594.
102
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.
103
Cited in David Montgomery, Citizen Worker [Cambridge UP, 1993] 144.
104
Smith, Civic Ideals, 17.
105
David Lloyd, “Race under Representation,” in E. Valentine Daniel and Jeffrey M. Peck, eds.,
Culture/Contexture (Berkeley: University of California Press, 1996) 257-58.
106
Ibid., 250. This distinction, however, is not always maintained, as Lloyd’s argument also relies, too
exclusively perhaps, on the abstraction of the theoretical subject-of-linguistics to the status of the social
“subject” in general. The aesthetic-linguistic exclusivity of his emphasis subordinates other, equally
material determinations that affect the subjects of assimilation (for my purposes, the economic and the
legal).
107
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 is the
topic of a longer investigation.
108
Indeed, on this both the majority and dissenting opinions in Plessy agree: the social is divided from the
civic realm of formal legal equality.
109
Chinese Exclusion, 595.
110
Ibid., 595.
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