Excerpted From: Kyle Campbell, Legally Black: Material Constructions of Race in the Atlantic World, 22 Journal of Law in Society 242 (Spring, 2022) (277 Footnotes) (Full Document)


00NoPictureWhen Marx wrote in 1848 that “[t]he history of all hitherto existing society is the history of class struggles,” he was writing in a world of harsh and explicit racial caste. Many of his contemporaries, as well as some liberal critics today, accuse Marxist followers of being “class-reductionists.” “Class-reductionism” is the tendency to provide a class-based explanation for all social ills regardless of whether class is their most probable cause. The modern argument goes that focusing exclusively on economic conditions necessarily ignores the particular struggles of minority groups--that single-payer healthcare will not solve the problem of police shootings, for example.

This is indisputably true. Race does, to a considerable extent, now operate independently of social class. Harvard professors face racial humiliation by police just as Black teenagers in project housing do. But race-- especially blackness--is far from immutable. Blackness is fluid, sometimes based on color and other phenotypical characteristics, and it is sometimes based on supposed patterns of behavior--as any Black American who has been told she is not “really Black” can attest. Outside of the African continent, though, in societies from East to West, the word “Black” has for at least several centuries been synonymous with an underclass.

This Article examines three of those societies--the United States, Jamaica, and Haiti--and concludes that the distinctions between racial classification laws in each of these countries can be primarily accounted for by the material conditions prevalent in each of them as their systems of slavery were established.

Part I sets out the proposition that racism, and specifically antiblackness, is a product of the economic interests of the elites in power at the time those ideas were developed. Tremendous scholarship has established that the concept of race was a result of--not a predecessor to--these material conditions. West African people were not enslaved because Europeans believed they were inferior; Europeans decided West Africans were inferior to justify their enslavement. This section draws on the work of Africana Studies professor Ibram X. Kendi, as well as Critical Race theorist Derrick Bell.

After grounding the analysis in that materialist framework, Part II begins with an overview of racial laws in the United States. Much of the analysis focuses on the period between 1619-1860, when the first enslaved people arrived in the future United States, through the Civil War that that enslavement eventually caused. Unlike in Parts III and IV, I assume basic background knowledge of United States history in this section-- especially regarding the extensive plantation networks throughout the American South--and focus more specifically on how racial classifications were established there in law. I do not discuss the Civil War or Reconstruction in great detail, but I do give a brief overview of the era of racial retrenchment that followed.

After discussing the United States, I move on in Part III to Jamaica--another former British colony in which, unlike the United States, ninety percent of the present-day population is “Black.” But in a former slave society with such a large non-European population, blackness necessarily operated differently than it did in the United States. Material conditions in Jamaica produced very different racial hierarchies than those that prevailed in the Jim Crow South, and colorism--discrimination within racial categories based on skin tone--defined Jamaican law.

Finally, I turn to Haiti in Part IV. As the world's first Black Republic and the only nation on earth successfully established by a slave rebellion, Haiti has had a distinctly different post-slavery history than any other country in the Western Hemisphere. Even in Haiti, though, the color line dramatically influenced the rights of citizens, with early Haitian revolutionaries--both Blacks and “mulattos on maintaining the system of plantation agriculture that had produced so much wealth for their former masters at the expense of enslaved Haitians.

I conclude by comparing and contrasting the development of race and racial laws in the three countries as well as discussing why non-materialist frameworks for assessing these histories, particularly those that center on the importance of the Enlightenment, fall short.

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Each of these nations developed its system of racial classification under different governments, in different eras, and across different cultures. There is little reason to believe that racial laws should have been so similar in British colonies as in the new United States as in the pre-and-post revolutionary French empire. So why were they so similar, and what do the differences tell us about how racial ideology bends to suit the ruling classes' interests?

Unfortunately, the experiences of the Black masses in each of these societies, while crucial to understanding the economic interests that underpinned blackness, are least helpful for answering this question. From the seventeenth through the nineteenth century, the vast majority of Africans in the Western Hemisphere labored in irons, under miserable conditions, for their entire lives. Many of their children and grandchildren suffered the same fate. To the extent that there were distinctions in the brutality of slavery, regardless of how each society defined blackness under law, they were differences only of degree. To be a slave under the Code Noir was to be a slave in Alabama was to be a slave in Kingston.

Paradoxically, to truly understand how each of these countries constructed race, one must look at the exceptions to this tragic rule. In particular, the distinctions between the statuses of the free people of color and the way each society reacted to the Enlightenment are telling.

One glaring distinction between the free people of color in the United States versus those in Jamaica and Haiti is the lack of a large mixed-race class with greater rights than, and antagonistic interests to, the enslaved. While some free Black Americans did acquire wealth, and in some rare cases even owned slaves, they were almost universally disenfranchised and dispossessed. When Chief Justice Taney wrote that Black people “... had for more than a century before been regarded as beings of an inferior order,” he correctly described a pattern of institutionalized inferiority that had from the colonies' earliest days applied not only to slaves, as it had for Jamaica and Haiti, but for all Black people, including the minority who were free.

Largely because of this, another diverging aspect of free colored life in the United States was the absence of a major decline in the eighteenth century. In both Jamaica and Saint-Domingue, the 1700s saw increasing legal restrictions on the rights of free people of color, many of whom had held relatively privileged positions in the beginning of the century. That no such decline occurred in the United States is explainable, at least partially, by the way free people of color faced social and legal discrimination from the outset there, and thus fewer rights remained to take away. As noted above, the restrictions of U.S. slave codes often applied to free Blacks as well--with some states including slave and free colored restrictions within the same statute. Likely because of this shared legal inequality, however, free Blacks and mixed-race individuals in the United States largely identified with their enslaved neighbors; the same could not be said for those from the Caribbean.

In Jamaica, mulattos distanced themselves as often as possible from free Black people, and even more so from the island's slaves. This attitude was evident in the nature of the early petitions for “privilege bills” the “free coloreds” filed: mixed-race individuals often premised their requests on their degree of whiteness, especially in relation to certain white relatives. The “free coloreds” of Jamaica in this way expressed a genuine false consciousness--not simply strategically allying themselves with the island's white elite but identifying themselves with their oppressors.

Contrast this with Haitian free people of color, who certainly saw themselves as distinct from slaves and equal to whites but not as white themselves. Although mulattos regularly served in the armed forces that enforced slavery in Saint-Domingue, they did not universally oppose abolition and allied themselves with whomever benefitted their class throughout the revolution. This class solidarity, contrasted with relative Jamaican mulatto individualism, may be a product of the lack of avenues available for individual Haitian mulattos to escape legislative restrictions.

However, regardless of the internal motivations of the free people of color, it was ultimately the white elite in each country who decided how blackness would affect social and legal rights, and this, in turn, requires reviewing the motivations of each country's planter class for treating the free coloreds differently. In the United States, the most likely explanation for the lack of privileges for free people of color is simply numerical. Unlike in Jamaica and Haiti, where whites and “free coloreds” were both vastly outnumbered by slaves, the white planters in the United States had no need for mixed-race allies.

As noted, both Jamaica and Saint-Domingue saw major restrictions on the rights of free people of color as the plantation system entrenched itself in the 1700s, yet only Jamaica's law provided for large-scale exemptions for certain mixed-race populations. The likely explanation for this practice lies in the Jamaican elites' rationale for the legislation in the first place. When the planters of Saint-Domingue set out to dispossess the free people of color, they did so with the explicit intention of defending the institution of slavery, which they saw as absolutely necessary to maintaining their position. Jamaican legislators, on the other hand, invoked the comparatively weak rationale of ensuring that whites did not disappear from the island. Without the protection of slavery at the forefront of the political debate, Jamaican whites had an easier time allowing exceptions to overwhelm their rule.

The material analysis above diverges substantially from the simplistic narrative of race and abolition typically taught in American classrooms which holds that people did not know that racism and slavery were wrong until John Locke and Thomas Jefferson told them otherwise in the late 1700s. In the case of abolitionism, most Americans attribute the movement's successes to the influence of Enlightenment ideals of liberty, equality, and fraternity. While one should not discount this view of history entirely, it is worth examining its shortcomings in light of the stories of these three countries.

Jamaica is the country most-clearly affected by the Enlightenment as the British abolitionist movement arose in response to and in conjunction with Enlightenment thought. It is not necessary to discount historical materialism to accept this view. It is clear that, aside from necessary concessions to the Maroons given while on the losing end of a war, Jamaican elites took every possible measure to protect their material interest in slavery. The British who succeeded in ending the institution of slavery were those whose wealth was not bound up in plantations and thus could support abolitionism without personal consequence, and they did not do so by extolling the virtues of reason to Jamaican enslavers. The British abolished slavery just as the other countries did: through sheer political force.

Enlightenment ideals were undoubtedly a powerful force in shaping the early history of Haiti. The Declaration of the Rights of Man and Citizen inspired Toussaint Louverture, and the hundreds of thousands who followed him, to fight for their revolution. However, short of a decree from the revolutionaries declaring outright black supremacy, it is difficult to imagine a document aligning more with the slaves' interests than the Declaration. When the enslaved read the French statement that “[m]en are born and remain free and equal in rights,” they did not learn anything that they did not already know. Rather, Black Haitians weaponized these new Enlightenment ideas to enforce the rights they had always known they deserved.

If one wished to learn what happens when a society adopts Enlightenment ideology while simply ignoring any of its implications that were financially inconvenient, they need look no further than the early United States. The American Declaration of Independence famously expressed the Lockean ideal that “all men are created equal,” but from the colonial era through the Civil Rights Movement, the United States consistently failed to put this ideal into practice. Thomas Jefferson, the third President of the United States, fought to ban slavery in the Constitution and wrote about the evils of the institution while himself owning over six hundred human beings. For a man widely acclaimed for his wide learning, living this contradiction was, to say the least, unenlightened.

Ultimately, the kind of cognitive dissonance we see with early colonials like Jefferson is broadly representative of all racial prejudice. Wherever race, and thus racism, prevails, it does so because a dominant group once decided that its contemporary myths were insufficient to justify its oppression of another and set out to create new ones. As we have seen, the maltreatment of oppressed races will entrench itself in the law--and will continue as long as the material interests that incentivize that oppression continue. Any attempt to combat antiblackness that does not fundamentally attack its material underpinnings will either fail outright or simply reproduce the same virulent structures with a new set of victims. The law is an expression of the political will of the ruling class; the only way to change the law is to change the class that rules.

Associate General Counsel, American Federation of State, County and Municipal Employees, AFL-CIO. J.D. University of Alabama School of Law, May 2020.