Excerpted From: Gabriel J. Chin, Slave Law, Race Law, 94 University of Colorado Law Review 551 (Spring, 2023) (68 Footnotes) (Full Document)


GabrielJChinMany scholars have recognized broad connections between slavery and the contemporary criminal justice system. For example, in different ways at different times, people of color have been subject to race-based criminalization, detention, or expulsion that has never systematically been inflicted on White people in the United States. There are repeated historical resonances to slavery with respect to specific enforcement techniques. Thus, the Fugitive Slave Acts blessed by the Constitution are said to be antecedents of the Chinese Exclusion laws, which required Chinese people to carry identification. These laws in turn presaged the Arizona “show me your papers” law, Senate Bill 1070, and other aspects of modern immigration enforcement. Judges and scholars have identified harsh slavery-era law enforcement practices as parallels to the contemporary police practice of stop and frisk. Other aspects of historical legal practice continue to echo in contemporary jurisprudence and practice. Law professor Justin Simard recently documented that contemporary courts deciding cases continue to cite historical precedents determining the legal status of enslaved persons and resolving criminal and commercial cases involving slavery. Rarely do these modern courts pause to ask or analyze whether slavery-era precedents warrant reconsideration rather than reliance, given their unjust origins.

These scholars make important points about patterns in American law. In support of their claims, rather than in derogation of them, this Essay proposes that the scholarly focus on slavery understates the nature of American racism in two ways, both of which were apparent in early U.S. law. First, not only enslaved persons, but free Black people were also subject to regulation in connection with the criminal justice system and in other domains. Second, not only persons of African descent, but other non-White people were also subject to legal domination across multiple areas of life. Perhaps the time has come to understand particular forms of racial oppression as component parts, which functioned as elements of a unified whole. A social institution such as slavery seems to stand alone because of its brutality, pervasiveness, and consequences in shaping the United States. But there is a case to be made that it was closely related to other institutions, such as the legal treatment of free Black people and other people of color.

After the Civil War, the reality of a multiracial regime of oppression was unmistakable--Jim Crow, Indian Removal, and Asian Exclusion effectively and systematically shaped the United States politically, economically, and socially. As historian Oscar Handlin explained,

By the end of the [nineteenth] century the pattern of racist practices and ideas seemed fully developed: the Orientals were to be totally excluded; the Negroes were to live in a segregated enclave; the Indians were to be confined to reservations as permanent wards of the nation ....

Similarly, Professor Milton Konvitz wrote decades ago that

[a]fter 1876 the Negro problem and the Chinese question were linked when it came to voting in Congress on anti-Chinese measures .... The South, it has been said, “was quite willing to join with the Pacific Coast in fitting the Chinese into a caste system which, in many respects, closely resembled that which prevailed throughout the former slave belt.”

The observations of Professors Handlin and Konvitz may be underappreciated.

This Essay first observes that, in the slavery-era, free Black people were subject to legal restraint and discrimination, making clear that it was an individual's non-White race, not an individual's status as enslaved, that triggered restriction. This Essay then points out that antebellum law often regulated non-White races categorically--that is, Black people and Indigenous Peoples, or Mongolian and Black people. Notwithstanding the different languages, religions, places of birth, and ways of life of these groups, in the view of lawmakers there was still something making it appropriate to treat otherwise diverse and distinct groups of non-White people identically. This makes clear that at least an important strain of racial regulation was based on non-Whiteness, rather than Blackness per se. The parallelism among non-White races was very often black letter, not just analogical, ideological, or metaphorical. Arizona law declared that “all marriages of persons of Caucasian blood and their descendants, with negroes, Mongolians or Indians, and their descendants, shall be null and void.” A Nevada statute provided that “Negroes, Mongolians, and Indians shall not be admitted into the public schools ....” A California statute providing that “that no Indian or Negro shall be allowed to testify as a witness in any action in which a white person is a party” was interpreted to apply to Chinese people.

A forthcoming article proposes that the Naturalization Act of 1790, which limited naturalization to “free white persons,” is fundamental to this regime. Writing on this statute, the California Supreme Court ruled in 1854 that “[t]he word ‘White’ has a distinct signification, which ex vi termini, excludes black, yellow, and all other colors.” The California court's decision was followed by other high courts, north and south. Such authorities suggest that the governing legal principle was not that Black people were denied rights but, more particularly, that only White people were granted them. This structure was not exclusively a post-Civil War development; instead, a functioning and mature legal ideology of White supremacy was present at the Founding and was deployed with little hesitation against enslaved persons and free people of color.

The purpose of this Essay is not to decenter slavery either as a phenomenon or a body of law. Slavery came first chronologically, and it may well be that the urgent demand on the part of the fair, just, and honorable people of the United States to rationalize the kidnapping, murder, and rape associated with slavery gave rise to American racism and White supremacy. It may also be that the logic of slave law was so brutal and unjust, yet so profitable and functional, that it could not be confined to enslaved persons or to Black people--if race-based slavery was accepted or tolerated, how could other race-based regulatory regimes not arise? The claim is also not that there was no division of opinion in the White community, or that there were more and less intense regimes of discrimination in different states and territories. Instead, this Essay proposes that the various legal regimes of discrimination that came into force over the centuries--slavery and Jim Crow for Black people, Asian Exclusion, segregation of and discrimination against Mexican Americans, the brutal treatment of Indigenous Peoples--rested on a common foundation of White supremacy vigorously enforced through law over time. Although the details of the laws differed depending on the oppression thought to be necessary, all was in service of the protection of “the superior race, the white man.”

[. . .]

The law of slavery was influential and important in and of itself. But it rested on ideas of White supremacy which had implications beyond the institution itself. In 1859, the North Carolina Supreme Court boasted that the genius of the common law was its flexibility,

[It] expands so as to embrace any new exigence or condition of society; so that, while on the principle of self-protection, the paramount rights of the white population are secured, the rights of this inferior race are made to give place, as far, but no farther, than is necessary for that purpose.

Surely the common law displayed its flexibility with respect to White supremacy in North Carolina and beyond. The White population exercised its “paramount rights” with regard to all non-White groups as they presented challenges and problems to the interests of the White community. The techniques and methods were sometimes identical and sometimes different, but they all rested on a common idea--that this was a White country, and the law should benefit White people.

The principal point of this Essay is about understanding the history of White supremacy. It also, potentially, has implications for the substance of equal protection law. In invalidating a measure designed to promote school integration, Chief Justice Roberts famously wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Perhaps, constitutionally, the history of discrimination in this country is so much water under the bridge and as legally obsolete and irrelevant as the Articles of Confederation. On the other hand, the Chief Justice has apparently, not in any opinion or elsewhere, accounted for and evaluated the ways in which the United States has been shaped by race. The system of regulation of people of color cannot be appreciated and appraised until its contours are at least roughly comprehended. One would hope that constitutional doctrine would be based on an accurate understanding of the facts, and that the Supreme Court would not conclude that the United States has overcome its past of discrimination before seriously examining that history.

Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor, University of California, Davis School of Law.