It’s the most shocking scene in Spielberg’s Lincoln. After a dramatic climax in the
House chamber, Thaddeus Stevens returns to his home, bearing the official copy
of the 13th Amendment. Stevens eventually makes it to bed, with his
mulatto housekeeper, friend, and romantic partner, Lydia Smith. And here’s
where it gets shocking: In their shared bed, Stevens gives Smith the text of
the amendment, and Smith reads it.
Aloud. For Stevens and for us, the audience.
Why is this shocking? I want to suggest that the condition
of possibility for the dramatics of the narrative to be dramatic, the condition
of possibility for the story to lovingly depict the parliamentary machinations
required to emancipate slaves, is that this amendment, its very text, not be
read. The amendment cannot be read if we are to affectively invest in the
story, if we are to read this as a story of the generalization of juridical
freedom. And that’s because, well, if you were to rip the amendment out of
context, if you were to read or hear the text from the very beginning of the
play, you might become confused, you might decide that the juice wasn’t worth
the squeeze, you might think, “Wait, I thought we were trying to abolish
slavery, not provide positive constitutional mechanisms for establishing it.”
So, let’s read it:
“Section 1. Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to
their jurisdiction.
Section 2. Congress shall have power to enforce
this article by appropriate legislation.”
“…except as a punishment for crime whereof the party shall have been duly convicted.” Let’s leave this
clause hanging, and think about the varied ways in which Lincoln has been criticized from the left. (I want to note, at the
outset, that I’m in full sympathy with these critiques.) Kate Masur has critiqued
this scene for staging in micro the film’s general assumption that freedom
was a gift handed over to passive blacks by do-gooder whites; Steven literally
hands freedom to Stevens. Masur directs our attention to the public and
activist lives of the black characters whom Lincoln
treats as bit players (Keckley, Smith) in order to recover black agency in
the work of antislavery. Others have extended and intensified Masur’s critique,
with
Aaron Bady in particular showing how the film’s investment in not foregrounding black emancipationist
agency derives from its “realist” optimism in liberal reformism. Bady directs
us toward more radical interpretations of the 13th Amendment and
Reconstruction—Du Bois and Foner, mostly. Foner
himself makes the point that slavery was already dying if not dead; the 13th
Amendment is a juridical-textual inscription of an accomplished social
movement, the Du Boisian “general strike” of slaves fleeing toward Union lines.
All of these critiques want to locate the social and political origins in the
amendment in black (and feminist) social movements, and surely they’re correct:
emancipation became a juridical necessity as a consequence of such movements.
But if the impulse to generalized emancipation derived from black
self-activity, where might we locate the origins of the emancipatory text
itself? And why—given that the text actually enables positive legal arguments
for slavery—do we think of this amendment as actually emancipatory? Between
on-the-ground emancipatory self-activity and its legal inscription, something
got in the way, some kind of legal reasoning that translated an absolute
refusal of servitude into a conditional refusal: “…except as a punishment for
crime whereof the party shall have been duly convicted.” Where did this legal
reasoning originate?
We need to keep in mind that positive-legal authorizations
of slavery from the federal legislature were rather scant. Federal statute laws
that took “slave” as a juridical category typically operated according to a
principle of comity: If the legal regime of x state treated a black person as
property, the legal apparatus of y state would need to so treat that property
in the event of, say, the capture of a fugitive. Massachusetts would have to
respect Carolinian law. That’s not the same thing as the production of a
positive federal law authorizing slavery—it rather places the burden of
legitimation on a given state. Broadly speaking, federal law treated slavery in
a de facto fashion; its juridical positivity was a state-based affair. And thus
the strangeness of the 13th Amendment: in consolidating a national
legal regime, it actually produces a positive legal rule for enslavement: “…except
as a punishment for crime whereof the party shall have been duly convicted.”
Why this clause? Where did it come from? As it appears in
the film, particularly at the moment of its reading, the amendment is a highly
localized, domestic affair. In Smith’s mouth, the amendment does double work:
it functions simultaneously as public/legal and private/intimate speech, even
as the physical circulation of the document articulates the congressional
chamber with the congressman’s bedchamber. And, indeed, it’s only within this
domestic context that the text is legible as an antislavery instrument—we need
to know that the do-gooders in the film will not use this amendment as a legal
argument for enslaving blacks. We need to know, through constant assertions,
that this is an instrument of freedom—as, indeed, it was. But what if we pry
this amendment from its domestic moorings, if we set it adrift in a field of
international legal reasoning?
We would actually see that the legal instrument of the 13th
Amendment, the Amendment of Emancipation, draws upon the legal reasoning of
slavery. Writ positively, the amendment might read: “Slavery shall exist only
on condition that the party shall have been duly convicted of a crime.” But
that is precisely the mode of legal
argumentation used to justify slavery and, moreover, the slave trade. Enslaved
Africans were already convicted, as a proslavery jurisprudence had it. This
conviction might have been theological and racial in origin—the
curse of Ham. But there were non-theological legal arguments made as well.
Slavery, apologists argued, was a recognized feature of African legal regimes.
Persons could be enslaved under African commercial law (debt law, for
instance), under African criminal law (as a punishment), or under African jus
gentium (as a mode of humanely dealing with prisoners of war). Curiously, these
apologists—elsewhere and always ready to cast Africans as decultured,
uncivilized, as lacking anything like a state—understood Atlantic slavery as
the effect of a kind of comity, of Atlantic legal regimes accepting juridical
distinctions made in Africa by Africans. (These arguments, of course, tended to
break down once the inheritability of the status of slave required defending.)
I’m suggesting, though, that the amendment itself draws upon a mode of
international legal reasoning that was always functional for the maintenance of
slavery.
So, one effect of the Amendment’s passage was, strangely, to
deactivate a mode of legal reasoning that ascribed legal reasoning to African
polities—that saw Africans, and not just those in Sierra Leone or Liberia, as
inhabiting thick legal regimes that operated at multiple scales. Another effect
is that, well, the Amendment only makes sense as an instrument of freedom
provided that it is insistently embedded within a nation-centered mode of legal
reasoning and legal practice. And, indeed, the film works to insistently elide
any mention of the world beyond, which is nonsense. As a point of fact,
emancipation in the U.S. was thought about in expansive, transnational terms.
Latecomers to emancipation, U.S. politicians, administrators, and the general
public had at their disposal a whole repertoire of examples of programs for the
abolition of slavery—Haiti in the revolutionary era, the British West Indies in
1834/8, the French Antilles in 1848, and much of postimperial Spanish America
through the early to mid nineteenth century. We know that these examples did a great deal of work for both pro- and
anti-slavery thinkers. We know that
public chaps in the U.S. borrowed freely from the legal, administrative, and
economic discursive resources of the British, in particular. We know that a whole series of practical,
on-the-ground exchanges between do-gooders and freedpeople in the West Indies
and their counterparts in the U.S. lent a concreteness to the abstract
comparisons that circulated through Northern and Southern print worlds.
But we also know, I think why these transnational and
international exchanges need to be ignored. On one hand, Lincoln can’t really
appear too unique when you realize that lots of places had already outlawed
slavery. On the other hand, we can’t look too deeply into the ugly origins of
the 13th Amendment’s mode of legal reasoning. It would be
disconcerting, after all, for good pious citizens to realize that something
like the 13th Amendment could have been written and read on the
shores of Africa by a slave-trader who, upon concluding negotiations with a
local ruler, prepared to load his cargo of criminals aboard his slave ship.
6 comments:
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