Racism and Domination: A Bibliographical Essay

In August of 2019, the law journal of the InterAmerican University of Puerto Rico Law School published an article I penned, titled Racism, Culture, Law, and the Juridical Rhetoric Sanctioning Inequality and Colonial Rule. [1] The sources consulted for the article provide a fairly thorough picture of American political, cultural and legal history, and of the forces that have shaped what is called the American people. They also implicitly lay bare the deficiencies of legal education, particularly the teaching of American constitutional law and history.

The Role of Ideas

The article emphasizes the historical and cultural aspects of what we call “racism,” and how the ideas of race and racial hierarchy have shaped American culture. Relying on those ideas, American law has contributed to the construction of identity and domination, thus legitimizing slavery, the uprooting and annihilation of Native (“Indian”) nations, and colonization through “overseas expansion.” Therefore, all that historical and cultural baggage has had an impact on American domination over Puerto Rico.

It is through ideas that human cultures develop and sustain practices and behaviors, sometimes to their detriment. Richard Dawkins [2] first pointed to the conceptual similarities between the reproduction of genes and that of ideas, which can be deemed as the DNA of cultures. Ideas are surreptitious, stabilizing forces which do their job in the deep realm of human minds, and in the intricate web of social interactions and power dynamics.

The evolution of human cultures is tempered by a powerful tendency toward stability, mostly yielded by the intergenerational reproduction of ideas. David Deutsch [3] discusses the phenomenon of cultural evolution and stability, the coexistence of dynamism and stasis; and of innovation and tradition.

The Idea of “Race” and Racism

Ivan Hannaford [4] shows that “race” is a fairly recent idea, unknown until the 16th century, and developed into an ideology of racism and “racial” hierarchy, in a context of massive enslavement of human beings of African origins.

The impact of the concepts of race and ethnicity on national identities and civic membership is also as recent as nation-states themselves. Benedict Anderson [5] provides an account of the historical factors that contributed all over Europe to the birth of the “imagined community” we call a “nation.”

Robert J. Cottrol [6] provides a comparative study of the history of enslavement, race, and racism in the Americas –in Spanish and Portuguese America, as well as the North American British colonies, and the United States–; and of the legal regimes that have constructed and regulated “race relations” throughout the continent.

Alden T. Vaughan [7] examined documents –mostly from Virginia censuses of the 1620s and 30s– which suggest that, from the outset, African unfree laborers were treated differently from European ones (known as indentured servants). It did not take long from that disparate treatment to the legal codification of for-life, hereditary enslavement of Africans and their descendants.

A Revolution for the American Oligarchs

David Waldstreicher [8] provides an account of the role of slavery on the path to separation taken by the colonial elites in 1776, particularly given the perception of the colonials that the British Parliament threatened that source of cheap labor and wealth. That same year, Adam Smith published The Wealth of Nations, the first treatise about capitalism. That is hardly a mere coincidence.

The American “founding fathers” were mostly capitalists, and professionals: wealthy planters, merchants, bankers, and lawyers, who recognized that their interests would be best served by severing their political ties with the British empire. By then, they saw the taxation and other economic policies enacted into law by the British Parliament as unwarranted constraints to the protection and growth of their wealth. In order to get the populace to fight for them, they latched onto their separation anxieties the Enlightened principles of human equality and the rights to “life, liberty and the pursuit of happiness.”

Waldstreicher’s narration is compelling. The delegates to the 1787 convention, many of whom had signed the Declaration of Independence, were representatives of that ruling and economic elite of the former colonies, then trying to establish a political arrangement that would allow for economic and territorial expansion. The first constitution, known as the Articles of Confederation, proved inadequate for that primordial task.

The federalism devised in Philadelphia gave to a national government the exclusive control of all the essential tools for capitalist and territorial expansion, to wit: banking and monetary policy, bankruptcy and maritime law, copyrights and patents, national and international commerce, foreign relations and the power to make treaties, immigration and naturalization, territorial expansion and admission of new states, war and military conscription, protection of the “institution” of slavery and of the mastery of owners over their slaves, and supremacy of federal constitutional and statutory law.

“We, the People”

The institutional structure established in 1787 is republican (no monarch, three departments with distinct governmental prerogatives, some measure of representative government), and a claim that the ultimate sovereignty lies in “the People,” who “ordained and established” the Constitution. Who are “the People”? As Judith Shklar [9] expounds, that question has been a contested one ever since.

In the article, I stress the significance that the first ten amendments, enacted in 1791 and known as the Bill of Rights, left out a right to formal equality. After all, I observed, “equal protection of the laws” was a concept known even to early Massachusetts colonists. Thus, such omission suggests that the equality dictum of the Declaration of Independence (“all men are created equal”) represented a problem to be avoided. Otherwise, the framers would have included equality as a right opposable to a government created by a Constitution that protected slavery and slave owners, a glaring contradiction. It was not until 1868, after slavery was abolished, that an equal protection clause was enacted as part of the Fourteenth Amendment.

The United States was born after 150 years of colonial regimes of enslavement and exploitation. Edmund S. Morgan [10] described that reality in his account of the development of the richest colony, Virginia. There, a colonial elite subjugated and exploited not only slaves and indentured servants, but also “poor whites,” who showed a propensity to fight back, as shown in Bacon’s Rebellion. Thus, they would have to be neutralized by preventing them from joining forces with the poorest among the wretched. Race and racism proved equal to the task.

Morgan shows how the colonial elites used race, racism, and the stigma of slavery as a psychological gambit, so that free, poor, exploited whites felt kinship with the equally “white” elites, and not with the more exploited humans in the realm. With its variations, the trick has worked ever since.

From that historical cauldron emerged at least two worldviews: A liberal one, which has striven to define the new nation as a beacon of democracy and equality; and an illiberal one, which has tried to limit the enjoyment of full civic membership and rights to those with the ascriptive feature of “whiteness.” The first would try to adopt the political principle, which views citizenship as worthy of everyone who is committed to democratic and liberal principles of governance and justice. The second one adopted an ethnocentric lens, which originally deemed as citizens only those males of Anglo-Saxon stock, later evolving into all persons who share the trait of “whiteness.”

This is where the work of Rogers M. Smith [11] is most illuminating and revealing. His “multiple traditions approach” stresses the tension between the liberal and illiberal outlooks. Smith examined scores of federal statutes and judicial decisions, which show that American law has more often than not codified a racialized view of civic membership, and has also founded its immigration and naturalization policies on the illiberal strand of the American creed.

Smith also points to the social and political imperatives that reinforce illiberal notions of nationhood and civic identity. Given the emotional appeal of race-based nationality, political actors will often view those notions as constraints, as well as opportunities. Many politicians have not only recognized, but acted on the tendency of their constituents to be sensitive to the sense of tribal or national belonging that has been created –and reproduced for centuries on the basis of “race” and related ideas of what it means to be “American.” Meanwhile, liberal politicians have walked a fine line in trying to gain acceptance for other, more universal ways, of defining Americanness.

The Esteemed Chief Justice

The opinion of Chief Justice Taney in 1857’s Dred Scott v. Sandford [12] has been dissected many times over. That is why, instead of focusing on the immorality of Taney’s perpetuation of race-based citizenship, I emphasized the turpitude and demagoguery of his argument that the “founding fathers” lived in a time when slavery and the notion of African inferiority were unanimously held as morally and politically unproblematic.

Relying on historical facts and on the debates of the 1787 constitutional convention –all of them known to the racist Taney– I hope to having showed that the colonial elite that declared independence did so fully aware of the contradiction and hypocrisy of protecting slavery, while basing their revolution and system of government on notions of democracy, freedom, and equality.

John Rutledge, a delegate from South Carolina, summed it best, when the uttered at the convention that humanity and morality “had nothing to do with this question. Interest alone is the governing principle with nations.” He meant, of course, that as the governing elite, the oligarchs would define what the interests of the nation would be: Their own interests.

In short, the “founding fathers” chose exploitation over principled morality, mostly because their interests, and the whole socioeconomic fabric of their society, were built on the shoulders of exploited fellow human beings. And it is fair to ask: How could they steer then a different path?

Teutonic Constitutionalism and Colonial Domination

Mark S. Weiner [13] studied 19th century ideas, which coalesced in what he has dubbed “Teutonic constitutionalism.” Central to those ideas is the notion that “whites” of Anglo-Saxon stock have historically shown a predisposition for freedom, self-governance, and institution-building, which was negated to “alien races,” such as Filipinos and Puerto Ricans. That “ethno-juridical” notion is present in the rhetoric of 1901’s Downes v. Bidwell, [14] the first really important of the perplexingly still-alive-and-well Insular Cases. [15]

That notion has also informed the policy of perpetual colonial subordination implemented in Puerto Rico for more than 120 years; as well as the visceral rejection to the prospect of Puerto Rican “statehood.” Ignoring or downplaying those, and other subjacent but ever-present realities, has been one of the failures of Puerto Ricans in general, and as political and legal actors in particular.

[1] http://www.derecho.inter.edu/wp-content/uploads/2020/07/Revista-Juridica-UIPR-Vol.-LIII-No.-3-2018-2019.pdf.

[2] Richard Dawkins, The Selfish Gene (1976).

[3] David Deutsch, The Beginning of Infinity: Explanations that Transform the World (2011).

[4] Ivan Hannaford, Race: The History of an Idea in the West (1996).

[5] Benedict Anderson, Imagined Communities (2nd rev. ed. 2006).

[6] Robert J. Cottrol, The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere (2013).

[7] Alden T. Vaughan, Roots of American Racism: Essays on the Colonial Experience (1995).

[8] David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (2009).

[9] Judith Shklar, American Citizenship: The Quest for Inclusion (1997).

[10] Edmund S. Morgan, American Slavery, American Freedom (1996).

[11] Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997).

[12] 60 U.S. 393 (1857).

[13] Mark S. Weiner, Americans Without Law: The Racial Boundaries of Citizenship (2006).

[14] 182 U.S. 244 (1901).

[15] See, e.g., The Oxford Guide to United States Supreme Court Decisions 136–37 (Kermit L. Hall, ed. 1999).

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