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Ken Masugi
Abstracted from:  Ken Masugi,  Race, the Rule of Law, and the Merchant of Venice: from Slavery to Citizenship,  11  Notre Dame Journal of Law, Ethics & Public Policy 197 -223 (1997) (99 Footnotes)

        From the first appearance of man upon the earth, down to very recent times, the words “stranger” and “enemy” were quite or almost, synonymous. Long after civilized nations had defined robbery and murder as high crimes, and had affixed severe punishments to them, when practiced among and upon their own people respectively, it was deemed no offence, but even meritorious, to rob, and murder, and enslave strangers, whether as nations or as individuals. Even yet, this has not totally disappeared. The man of the highest moral cultivation, in spite of all which abstract principle can do, likes him whom he does know, much better than him whom he does not know. To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals is one of the highest functions of civilization.

       After seeing Booth as Shylock, [Lincoln] commended the performance, but said that he would rather read it at home.  “A farce, or a comedy is best played; but a tragedy is best read at home.” It didn't make any difference to him, he added, how Shakespeare was played as “with him the thought suffices.”       Abraham Lincoln's career is an almost eerie display of Shakespearean grandeur and pathos.  Following numerous other observers on this theme, historian Don Fehrenbacher observes: “To some indeterminable extent and in some intuitive way, Lincoln seems to have assimilated the substance of the plays into his own experience and deepening sense of tragedy.” Lincoln's odd characterization of a popular comedy, The Merchant of Venice, as a tragedy is particularly telling. For the Merchant is a happy tale that, however, conceals an horrific conclusion intended, as I will argue here, to educate the audience to the terrifying potential of the new, emerging cosmopolitan world.    To use the imagery of the play, the Merchant is a golden casket which conceals a death's head. Lincoln saw too that America might continue on in a seemingly happy way yet contain within itself the seeds of its downfall by legitimizing slavery. Lincoln's struggle against slavery was very much an attempt, perhaps a tragic one, to make America the earthly comedy it promised to be at its founding, the first nation based on universal premises, the self-evident truth of human equality. The American comedy might be as “near to perfection as any human institution ever approximated”--that is, America might be judged by the ancient standards of the best regime. These were the standards of Lincoln, of Shakespeare, and of classical political philosophers such as Aristotle: Human equality requires the rule of law, which is necessarily (and incidentally) color-blind. The success of the American experiment, necessarily involving this most vexing question, requires citizens' continuing appreciation of its theory and practice. And that understanding calls for those highest standards of the teachers of the West, which we seek to bring forth here.

       But our immediate subject is race and the law.  How should the two be related?  My argument here will be that the emphasis American law has given to race has obscured the origins and enduring significance of the American dilemma--namely in the nature of republican, constitutional government, which in turn rests on natural rights.

        America is essentially a dream . . . . The substance of the dream is expressed in these sublime words, words lifted to cosmic proportions: “We hold these truths to be self-evident, that all men are created equal. . . .”

       Ever since the Founding Fathers of our nation dreamed this noble dream, America has been something of a schizophrenic personality, tragically divided against herself.       As recently as Martin Luther King, black Americans were insistent on binding the civil rights cause to this Nation's founding principles and the political philosophers of the West from whom they were derived.

       The American commitment to equality is to somehow make race, to some degree or other, against all previous political experience, irrelevant legally and politically. The commitment to race-neutrality is reflected in the wording of the U.S. Constitution itself, which, until the Fifteenth Amendment, never made mention of race. Moreover, the American proposition--“all men are created equal”--makes religion, military prowess, physical size, and, along with these, race, irrelevant for purposes of forming government by consent, which leads in turn to the rule of law. In other words, the more general case of how to establish the rule of law covers the specific instance of race. The themes of political theory such as government by consent, republicanism, and citizenship, should be brought to bear on the race question; a radical political problem deserves a radical treatment.

       The failure of political debate to reflect on the place of citizenship and republican character is one indication of our contemporary detachment of the most wrenching issues from founding principles. The crisis in civil rights mirrors an even deeper crisis concerning constitutionalism and modernity in general. Liberalism, with its emphasis on an abstract individual and limited government is not sufficient sustenance for the human soul. A strong sense of citizenship, an American political identity, trumps race, as we see in early Progressivism's attempts to assimilate non-Anglo-Saxons. But the fear of such identity and the political demands it might inflict--consider the debates over immigration--have led many to sympathize with Michael Walzer: “America has no singular national destiny--and to be ‘American’ is, finally, to know that and to be more or less content with it.” Content with living in private spheres in a commercial republic, increasing numbers of citizens do not even exercise the minimal obligations of civic participation. But even the high degree of Tocquevillean civic activity--our ability to form voluntary associations--does not fully reflect the political nature of man, as an examination of The Merchant of Venice will bear out. The theme of race and the law can be confronted only when we reach the political dimension that only the natural rights and citizenship issues bring forth.