Document Type

Article

Disciplines

Legal History

Abstract

This paper explores the duality of American law and American culture in the context of American Slavery. On the one hand, White Americans took great pride in the robust and progressive protection of individual liberties and rights guaranteed to them by documents like the Constitution. But, on the other, those same legal documents worked symbiotically with the cultural mores of the day to create and sustain a system that enslaved African Americans for generations. This paper starts with an analysis on the origins of racial slavery in colonial America, which emphasizes the insidious function of the law and preconceptions about African culture and race. Then, the focus turns to the role of Southern law and culture in sustaining the hegemonic structure of Southern society that allowed for slavery’s continued survival. With the role of Southern law and culture put properly in their place, the focus shifts to federal law by examining how the nation’s highest institutions allowed slavery to survive the birth of a “free republic.” The part that the framers and the Constitution of 1787 played in the story of American slavery is first considered in the context of Frederick Douglass’s arguments related to whether the Constitution was pro-slavery or anti-slavery. Next, it is argued that Chief Justice John Marshall started the Court’s long tradition of feigning judicial restraint to justify clearly racist decisions. In keeping with this tradition, the Court rendered the Constitution undeniably pro-slavery through two racially-driven decisions made under the pretense of legal formalism: Prigg and Dred Scott. Of course, Congress also played an unfortunate part in this story—particularly for its role in the events leading up to the Dred Scott case—that is discussed in turn. Finally, the paper closes with a brief comment on the long-lasting implications of the law’s failure to adequately protect the rights of Black Americans.

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