Beyond Civil Disobedience: Social Nullification and Black Citizenship (African American Philosophy and the African Diaspora) [1st ed. 2021] 3030775534, 9783030775537

Table of contents :
Acknowledgments
Contents
Chapter 1: Citizenship and Its Discontents: Introduction to Beyond Civil Disobedience—Social Nullification and Black Citizenship
I.
II.
III.
Chapter 2: “Is It Not Wrong, a Balance Which Tilts, a Plummet Which Deflects”: A Survey of Social Contract Theory
I.
II.
III.
IV.
References
Chapter 3: Crises of Legitimacy and Social Nullification Theory
I.
Nullification as Theory
II.
Social Nullification
References
Chapter 4: The Severed Bond: Policy and the Materiality of the Failing State
I. Citizens in the Material World
II. Criminal Justice
III. Housing
IV. Healthcare
V. Citizenship Isn’t an Idea, It’s a Practice
References
Chapter 5: “To Establish a Different Order of Things”: Reconstructions of Afri-Civic Identity
I. National Compacts and the Impossibilities of African-American Citizenship
II. De Contra Civic
III. Healing the Breach and Recognizing the Chasm
References
Chapter 6: Conclusion: The Call of a Different Drummer
I.
II.
III.
IV.
References
Index

Citation preview

AFRICAN AMERICAN PHILOSOPHY AND THE AFRICAN DIASPORA

Beyond Civil Disobedience Social Nullification and Black Citizenship

Charles F. Peterson

African American Philosophy and the African Diaspora Series Editors Jacoby Adeshei Carter Department of Philosophy Howard University Washington, DC, USA Leonard Harris Purdue University West Lafayette, IN, USA

The African American Philosophy and the African Diaspora Series ­publishes high quality work that considers philosophically the experiences of African descendant peoples in the United States and the Americas. Featuring sing-authored manuscripts and anthologies of original essays, this collection of books advance the philosophical understanding of the problems that black people have faced and continue to face in the Western Hemisphere. Building on the work of pioneering black intellectuals, the series explores the philosophical issues of race, ethnicity, identity, liberation, subjugation, political struggles, and socio-economic conditions as they pertain to black experiences throughout the Americas. More information about this series at http://www.palgrave.com/gp/series/14377

Charles F. Peterson

Beyond Civil Disobedience Social Nullification and Black Citizenship

Charles F. Peterson Oberlin College Oberlin, OH, USA

African American Philosophy and the African Diaspora ISBN 978-3-030-77553-7    ISBN 978-3-030-77554-4 (eBook) https://doi.org/10.1007/978-3-030-77554-4 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: vithib / Getty Images This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

This work has been an effort blessed by the support and encouragement of my family, friends and colleagues. I thank each one of them for their insights, encouragement, and care. I want to thank Dr. Shannon King, for your friendship and camaraderie through the best of times and the worst of times. I want to thank my old friend and comrade Dr. Trent Hamann for his encouragement and support in the earliest days of this effort. I want to thank my colleagues and friends in the Africana Studies Department and community of Oberlin College. It is a joyous community and I am grateful for their years of encouragement. I also thank the Office of the Dean of Oberlin College for its support in completing this work. I want to thank my good friends Ben Jones and Tim Elgrin for their encouragement and confidence in me. There are no limits to the theoretical possibilities to be discovered in cigars and spirits. I want to acknowledge Dr. Tina F. Botts for her patient attention during the early stumblings of this work. To Dr. Charles McKinney of the Africana Studies Program at Rhodes College, I especially want to thank you for your brotherhood and support. You, your family, and your program provided a booster rocket at the perfect moment of the launch. Also, for his brotherhood, friendship, and mentoring, I want to thank Dr. Paul Taylor. He has been incredibly supportive of this and other projects. And I want to thank the other members of the Thomas Hardy Debonnaires Reading Group. Mark, Eddie, Sully, and Brother West our conversations have been invigorating, enlightening, motivating, and positively demanding. From Arabella to Sylvia Wynter, our fellowship has been “not a crutch but a shoulder to lean on.” I want to thank Dr. Anne Eaton for her pure enthusiasm, optimism, and ability to make the v

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impossible happen. Her spirit is like philosophy itself, “light as a feather, heavy as lead.” I also want to thank my neighbor, colleague, co-conspirator, and friend, Julia Christiansen. Unbeknownst to you, you have been helping me think about the next project. Thanks to my mother-in-law Erma Hinds for her kindness, love, laughter and fi ­ shcakes. I want to thank my parents Gladys and Charles Peterson, Sr., for their ever present and constant support and love and my brother Craig Peterson and sister-­in-­law Jennifer Peterson. I am grateful for your support and belief in me. And I want to thank the crew without whom it would be a very different life, my family. Caleb Cabral, Solomon Sekou, and Senait Rose, the three of you give what I try to do meaning and spark my attempt to aid in creating a better world. Daddy loves you madly! And finally, I want to thank my partner, my wife and love, Dr. Meredith Gadsby for all that she unselfishly does for me in my efforts to be a better person. Because of all of you I am not surprised by evil nor paralyzed by despair. Thanks to you I am able to hold my head up, lighten my heart, and, I hope, continue to fight until the fight is done. Oberlin, OH, USA February 2021

Charles F. Peterson

Contents

1 Citizenship and Its Discontents: Introduction to Beyond Civil Disobedience—Social Nullification and Black Citizenship  1 2 “Is It Not Wrong, a Balance Which Tilts, a Plummet Which Deflects”: A Survey of Social Contract Theory 13 3 Crises of Legitimacy and Social Nullification Theory 39 4 The Severed Bond: Policy and the Materiality of the Failing State 57 5 “To Establish a Different Order of Things”: Reconstructions of Afri-Civic Identity 85 6 Conclusion: The Call of a Different Drummer127 Index137

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CHAPTER 1

Citizenship and Its Discontents: Introduction to Beyond Civil Disobedience—Social Nullification and Black Citizenship

I. Arguably, the most important concept and category of Modern/ Enlightenment political theory is that of the idealized “citizen.” Its importance is based on the changes in late feudal, early Modern, Western social organization that its emergence signals. Within this time period, the primary signifier of political/social identity changes from “subject” to “citizen.” This semantic change tracks the transformation in the way constituents of Enlightenment societies began to re-conceptualize themselves vis-à-vis questions of social status, political power, and metaphysical grounding. The “subject” (constituent of a monarchy or aristocratic hierarchy) exists in a submissive role in relation to the elite social classes (nobility), the ideological claim of the “right to rule” by descent based political classes and figures (aristocracy, monarchy, etc.). The subject is subjugated to the concentrated coercive power of the structures of the state and its function as a tool of the monopolization of power wielded by the monarch and the structures of the church, elite classes, and economic institutions. The transition from “subject” to “citizen” is an indicator of a conceptual, economic, social, and political reorganization of society through the creation of a new self-aware entity that sees itself beyond the stifling auspices of the monarch, the aristocracy, and the church. The development of the

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. F. Peterson, Beyond Civil Disobedience, African American Philosophy and the African Diaspora, https://doi.org/10.1007/978-3-030-77554-4_1

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category of “citizen” is an indicator of a revolution in the way Western European societies began to think and function. The idea of the “citizen” redefines the relationship of the individual constituent to the structures of state and civil power by asserting a consensually participatory relationship wherein the “citizen” does not submit but consents to participate in the systems of social organization. Derived from the Middle English root word, citizein, and the Old French, citeain, its root being the French word, cite (city), and possibly associated with deinsain (denizen), citizen functions as an adumbration of these words and can be taken to mean “denizen of a city.” “Formerly, a native or inhabitant, esp. a freeman or burgess, of a town or city.”1 Arising in the late thirteenth century, as the rising merchant/trader classes began to centralize themselves in trading sites that would absorb rural laborers, who, in the transformation from the feudal estate system of production, were gradually being liberated from their traditional lands, the term speaks to the openness of movement, that had become a part of the lives of the rural workers. The cite becomes a site of choice, a place that people sought out in which they had the choice of remaining or departing, an empowering position for those late of aristocratic estates. The term and category of “citizen” asserts the power of the individual to make choices regarding their relationship to the state; degrees of consent to established policies, codes, and laws; and through democratic participation, propose, affirm, or deny new or amended policies, codes, and laws. The “citizen” is a willful being, self-­ aware of their ability to decide to stand with, in opposition, or apart from the state and society.2 The final change is the redefinition of the distribution of state power. Whereas the presumption of the “right to rule” by monarchs and aristocrats concentrates the mechanisms of control in the hands of a minority class, the category of “citizen” is imbued with the idea of the theoretical, universal empowered individual that makes conscious choices about the deployment, expenditure, and expression of their social will. The ability to make choices, to deviate from a prescribed role, or to determine that options exist regarding the investment of ones’ energies and will is indicative of the presumption of empowerment on the part of the individual. Akin to the positive energy given off by protons in the nucleus of 1  Webster’s New World Dictionary, 2nd College Edition. William Collins Publisher: Cleveland, OH, 1980, pg. 260. 2  In this sense civil disobedience is the most demonstrative example of what citizenship is.

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an atom, the citizen has an inherent force that empowers the structures of society. The issue of association is important to the idea of the re-distribution of civil power, as the citizen can choose to increase their social power, in effect multiply it, by combining, concentrating, or coordinating with other empowered citizens to maximize their influence over social, political, and economic circumstances. Association requires the use of the discretionary sense as the citizen critically assesses their surrounding citizens for similarities or differences and a determination as to the possibilities of generating greater bonds of civil-social power by the increase in citizenry. Two forms are exemplary of the associative capability of the citizen. First, in representative government the creation of deliberative bodies (councils, senates, parliaments, and legislatures) which in effect combine the individual decision-making power into a larger and more concentrated form that asserts itself in association, collaboration, or competition with the governing individual (Queen, King, and President) or body (Executive branch). Ideally this concentration diffuses power and distributes it in such a way where it increases the overall empowerment of the society in the dispersal of power. Regardless this multiplication of individual wills can create a distinct engagement with civil governance, which can offset the singularity of executive vision, will, and action. The second example is the creation of partisan associations or political parties, which consciously combine the decision-making capacity of multiple individuals around a single belief or multiple beliefs in order to pursue the implementation of that belief or beliefs through the apparatus of the state’s system and apparatus of governance. What is central to all of these aspects of the construction and understanding of the category of the “citizen” is that the citizen exists, functions, and is empowered in the context of organized and formalized systems of civic power. The citizen exists only in the context of a civil organization and order. What legitimizes the citizen’s authority, or rather its power to make demands upon the state/governing apparatus, is its obligation to the governing structure (idea) be it the documentary/legal authority of the polis, state, nation, or empire or rather to the governing entity itself (polis, state, nation, or empire). Explicit in the construction of the “citizen” is its obligation to the state/nation. This obligation, which varies in expectation from nation to nation, is linked to a set of “rights,” protected practices, behaviors, and expressions that are available to the citizen. In the language and thought of Liberal Political ideology, these rights are inherent to the

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personhood of the citizens. The social and cultural freedom woven into the concept of citizen by the transformation of late feudal society by the eighteenth and nineteenth centuries had taken on metaphysical aspects as citizenship and its aspects had become the civil manifestation of the very being of the person. This transformation of the personhood of the, now, Western subject cum citizen took place within the epistemic re-ordering of feudal societies informed by the secularized environments of economic, territorial, and militaristic expansion of the colonial-imperial complex. The new being that would arise in this revolution of conceptualization would be Man. This new anthropocentric order and ordering of knowledge, time, space, culture, and geography3 would find as its self-aware referent, “its new ‘descriptive statement’ of Man as a political subject.”4 In this new arrangement Man/Citizen consents to observe a set of obligations in service to the maintenance of the state which then in turn allows the state to provide the conditions which create space for the individual/citizen to achieve/exist in circumstances that expand/maintain their civil, social, political, and economic power. These obligations can range from subjection to taxation, conscription, performance of loyalty, to obeisance before the state’s laws and policies. Through the citizen’s choice to commit a portion of their power to the state’s maintenance, the state in turn commits to providing services, opportunities, and rights to the citizen that theoretically, outside of the state structure, could be procured with their inherent agency. This is the essence of the Classical Social Contract. The choice to participate in the state’s functioning through voluntary association, the commitment to the laws, regulations, and policies of the state, and the state’s commitment to meeting the requirements of civil life and participation demanded by the citizen of the state are the terms of the social contract. In short it is a set of theoretically agreed upon and coercively enforced expectations that realize mutual fulfillment. This is the social contract of an ideal world. This work’s concerns lead us to another world. The presence of enslaved Africans in the North American experiment in democratic self-governance presented the most fundamental  See Blaut, James. The Colonizer’s Model of the World. Guilford Press: New York, 1993.   Wynter, Sylvia. “Unsettling the Coloniality of Freedom/Power/Truth/Freedom: Towards the Human, After Man, Its Overrepresentation—An Argument,” CR: The New Centennial Review, Vol. 3, No. 3, (Fall 2003), pg. 266. 3 4

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contradictions of Enlightenment political theory, rhetoric and propaganda. The founding rhetorical and governing documents of the new nation, the Declaration of Independence (1776) and the Constitution of the United States of America (1789), were explicit examples of the performance of the principles central to the category of citizenship. The ideas of voluntary association, inherent civil and social agency, and the derivation of state power from constituent provision for the mutual achievement of state stability and individual preservation are the first applications of Modernist political theory, at the state level, to the realm of practical governance. And at the same time these documents though disruptive in their geo-political-­economic impact upon British imperial expansion reinforced the foundational project of the erection of the new secular being, further adding to the interwoven existence of the categories of Man/Citizen, by politically disenfranchising women, First Peoples, and maintaining the legal category of slavery for three-fifths of all other persons. “In the wake of the West’s second wave of imperial expansion, pari passu with its reinvention of Man in now purely biologized terms, it was to be the peoples of Black African descent who would be constructed as the ultimate referent of the ‘racially’ inferior Human Other,”5 and thus becoming the perfect dark reflection of the ontological, racial, and political identity of the empowered constituent in the New World, the white man. The enslaved African commodified through the global trade in abducted human labor, objectified through regimes designed to undermine subjective consciousness and create a perfect thralldom, rationalized into a super-exploitative regime of agricultural labor, despite the lofty rhetoric of the secular re-conception of the place of the person in the natural and civic body, proved the articulation of the human and citizen in this context to be self-consciously contingent, narrow, market-driven, and cynical. The answer to the iconic abolitionist movement motto, “Am I not Man and Brother?” was a resounding “no.” Under the terms of freedom, agency, and liberation laid down by the republican assumptions of the United States, the African had no claim to inherent rights of humanity. This is not to say that the African was without recourse to some claim to freedom, agency, and liberation. Within the cultural memory and critical functioning of African peoples lay, in values and practices, a conception of the human and freedom that ran parallel to and

 Ibid.

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in contradiction with the construct of humanity and freedom proposed by the leaders of this revolution.

II. The arrival of enslaved laborers from indigenous societies on the “African” continent, despite the horror of their transportation and the re-location to uncertain locations and conditions, though traumatizing, was not the total erasure of their personality or social alienation some have argued. The circumstances under which the captives6 were held created opportunities under which fundamental connections and linkages between “Africans” from various societies/nations could develop and maintain linkages that created new ways of understanding themselves. Central to these connections were the general similarity of spiritual conceptions and practices between the captives. The spiritual systems practiced by many of the captives recognized a hierarchy of spiritual beings arranged in an ascending order from the entities of the material-natural world up through various categories of being ending with the Supreme Creator Deity of reality. Despite the presumption of superstition and magic that underlies the foreign perception of these systems, built into these cosmologies were the ideas of the agency attendant to the devotee. The various forms of spiritual practice and ritual performance woven into these beliefs were dependent on the choices made by the believer as opposed to the idea of an over-determining destiny or fate. The paths of the lives of the believers were based upon their choices regarding their relationships to the various metaphysical forces. “African” belief systems or rather a common feature of the belief systems embraced by enslaved Africans, held as a central tenet an inherent idea of freedom, as demonstrated by the role of conscious choice and agency in their spiritual composition, in the human personality. The idea of contending or even alternative conceptions of humanity expressed by peoples brought under the domination of the Western imperial complex, the array of self-constructions, and definitions of the human, Walter Mignolo calls a “pluralversity.”7 These conceptions of personhood constructed by the peoples beyond the scope of Western self-awareness (the West’s Other) lay at the foundation of their ­ social/political  Rediker, Marcus. The Slaveship: A Human History. New York: Penguin Books, 2008.  “Sylvia Wynter: What Does it Mean to Be Human?” Sylvia Wynter: The Human Being as Praxis, Katherine McKittrick, ed. Duke University Press: Durham, NC, 2016, pp. 106–123. 6 7

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structures.8 Like the changes in the societies and cultures of Western Europe that led away from a sacred conception of humanity to the Renaissance/Enlightenment-based conception of Man, as the rational center of a mechanical universe, the “African” assertion of what a person is and what is the role of the person in structures of social organization merge ontological concerns with social/civic outcomes. What is defined as human directly informs and shapes the nature of socio-political status and participation. And moreover, whoever defines what is a human, defines who is a citizen. The Enlightenment construct of Man, carried over to the colonial outposts of European states, maintained an idea of Man/Citizen grounded in the imperial complex which argued the lack of humanity of peoples at the borders of European empire and cosmology (specifically Africans and the indigenous peoples of the Western Hemisphere) as rationalization for the exclusion of the peoples from the burgeoning political states of the Americas. States El Hajj Malik El Shabazz (Malcolm X), “If we’re respected as a human being, we’ll be respected as a citizen; and in this country the black man [sic] not only is not respected as a citizen, he is not even respected [defined] as a human being.”9 The movement of Africans in America toward the embrace of the rhetoric and practice of mainstream political life in the United States was not a question of African (Americans) “learning” democracy or “freedom” from the supposed exemplars of representative government. Arguably every community of African peoples across the diaspora was in command of and invested in their own conceptualization of human freedom and 8  Mignolo provides as an example of “pluralversity”: Iranian Philosopher Ali Shari’Ati’s Koranic-based distinction between Bashar (Being) and Ensan (Becoming). I quote at length, “the difference between Ensan, Bashar and all the other natural phenomena such as animals, tress, etc., is that all are ‘beings’ except Ensan who is becoming. … But man in the sense of the exalting truth, towards whom we must constantly strive and struggle in becoming, consists of divine characteristics that we must work for as our ideal characteristics.” “Sylvia Wynter: What Does It Mean to Be Human?” pg. 119. To further illustrate the point Ghanaian philosopher Kwasi Wiredu writes that for some African societies personhood (humanity) is based on ethical behavior; he writes, “Personhood is something which has to be achieved, and is not given simply because one is born of human seed.” “An Oral Philosophy of Personhood: Comments on Philosophy and Orality,” Research in African Literatures, Vol. 40, No. 1, Oral Literature and Identity Formation in Africa and the Diaspora (Spring, 2009) pp. 8–18, (16). 9  “Universal Dimensions of Black Struggle II: Human Rights, Civil Rights,” African Philosophy: An Anthology. Edited by Emmanuel Eze. Blackwell Publishers Ltd.: Oxford UK 1998, pg. 110.

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their right to it. The gradual merger of Blacks into formal systems of democratic practice (e.g., Reconstruction), whether by way of gradual inclusion through national or local measures (e.g., the Civil Rights Act of 1964), informal measures and practices on the part of African peoples themselves,10 or the Constitution altering pronouncements of the 14th, 15th, and including Black women, 19th Amendments to the Constitution of the United States were pragmatic at heart as Africans né “Negros” né African-Americans were clear as to the necessity of participating in political life as fully vested figures. In short citizenship was fundamentally not simply a moral category or political ideal but a necessary mechanism through which the powers of the government could be accessed to enhance the inherent rights and agency of Black peoples in the pursuit of their individual and communal goals. Citizenship was a mechanism that contained the capacity to address the needs of African-descended people in exchange for committing to the obligations of the state. Citizenship was (is) a mutual understanding of interests, between the freed people and the liberal state, more or less. Citizenship, as imposed upon freed people, was not an organic self-conception, which provided a totalizing self-awareness for African peoples in the United States upon which their self-conception thoroughly rested. It was a function worthy of investment for as long as it supported the larger goals of their lives, one that could be readjusted, reconsidered, or, if necessary, rejected. It was not the status through which African-Americans identified their inherent value; it was a sufficient but not necessary condition of their existence, broadly speaking. In truth what else could citizenship be for those once enslaved by the same apparatuses that could proclaim as equal the dignity of the formerly enslaved and their enslavers? As prosecuted by Frederick Douglass in his masterful, “What to the Slave is the 4th of July?,”11 such proclamations ring hollow and are made fragile by the inconsistencies in the dominant population’s commitment to Black equality; this inconsistency which my mother describes as “White people and their sometimey ways.” Regardless, the Modern political subject and the self-aware African subject form into a single being in the United States is the post-Civil War, legally constructed, if not culturally, psychologically, or intellectually accepted, Black citizen. This figure 10  See Elsa Barkley Brown’s, “To Catch a Vision of Freedom,” Unequal Sisters: An Inclusive Reader in U.S. Women’s History. Edited by Vicki L Ruiz and Ellen Carol DuBois. (New York: Routledge, 1990), pp. 124–46. 11  Manning Marable, ed. Rowman and Littlefield Publishers: Lanham, MD 2009.

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and its condition, the result of the uneasy alliance of goals, intentions, conceptions, and expectations, between the United States and its residents of African descent, would serve as the provocation for the liberatory questions posed by generations of African-American theorists and activists and the bellwether for the possibilities of the realization of US democratic practice. So goes Black citizenship, so goes the nation. The beating heart of the question of freedom in the American experiment is, “What does it mean to be a Black citizen?”

III. The concept of “Social Nullification” is a multivalent lens through which to understand the uneasy contact between a society built upon the political idea of “equal citizenship,” and a historic constituency whose condition casts doubt upon the stated premises of the idea. The resistance to the actualization of African-American citizenship is the other half of the heartbeat of this work. The shifts in policies, inconsistencies in treatment before the law, and the disparate and diminished life outcomes and expectancies of African-­Americans resulting from the initiatives of both public and private entities set the ground for African-American expressions of social nullification, the living heart of this work. What has been called the African-American “fight for freedom” is fundamentally the ever-present struggle on the part of the community to gain initially its freedom from slavery and later full recognition of its Constitutionally guaranteed rights, privileges, and opportunities before the law. The practices of American individual, communal, private, and public entities have worked to undermine those Constitutionally asserted rights and subvert the efforts of African-Americans to realize and exploit those rights. Social nullification is the erosion or eradication of those mechanisms that maintain the rights of citizenship and the erection of policies and practices that diminish equal protection under law and access to social/political institutions. Social nullification is also the African-American critique of this subversion, their response to these practices, and their construction of alternative conceptions and practices toward the creation of a society where those rights and privileges are recognized and enforced. American society’s historic and contemporary reneging on the civil pact with African-­Americans and Africans-Americans’ construction/reconstruction of the terms of their civil existence, in response to state disruption, are the antagonistic drives that comprise “social nullification.” For the state, “Social nullification” is the breaking of the bond between state and citizen that allows the state to make demands

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upon the citizen while eroding its commitment to the citizen’s welfare. For the citizen, “Social nullification” is the process by which citizenry delink from obligatory commitments to a state apparatus in response to the state’s abrogation of its social contractual commitments to said citizenry. For the state, it is the denial of the rights and privileges of an individual, community, or class, and for the citizenry it is the deconstruction of its civil life and redefinition of the terms of its social existence. Beyond Civil Disobedience: Social Nullification and Black Citizenship is an analysis of African-American social/political conditions in the context of social contract theory. Chapter 2, “‘Is It Not Wrong, a Balance Which Tilts, a Plummet Which Deflects’: A Survey of Social Contract Theory,” will examine the philosophical roots of social contract theory from its ancient origins up to its appearance in the writings of Enlightenment thinkers. These writings articulate the fundamental conceptual premises and elements of Modern social contract theory. Relevant to this exploration will be the interventions of Sylvia Wynter and her interrogation of the sociogenic conditions of the concept of “Man” cum citizen and the investigations of Charles Mills in his work12 on the inherent white supremacist formulations of Western Social Contract theory. These arguments provide space to argue the construction of Man/Citizen in Africana, specifically, African-American, theorizing, as an alternative model that challenges a limited and flawed Enlightenment paradigm. Chapter 3 “Crises of Legitimacy and Social Nullification Theory” will articulate Nullification theories and “Social nullification’s” relation to them. Legal theorist Paul Butler’s reading of “jury nullification” in the context of African-American racial critique13 informs “social nullification” at a foundational level. Butler’s analysis argues that African-Americans jurors exhibit a critical interrogation of the US criminal justice system, as an inherently racist system and, based on this analysis, create alternative systems of value by which they implement their ideas of justice, by subverting the dominant (white supremacist) values of the criminal justice system as they are imposed upon African-American defendants. It will be argued this space of critical engagement reveals the US state as having a “legitimacy crisis” from the perspective of the African-American population. This chapter will argue that “Social nullification” theory applies this

 The Racial Contract. Ithaca, NY: Cornell University Press, 1997.  “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” The Yale Law Journal, Vol. 105, No. 3 (Dec., 1995), pp. 677–725. 12 13

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same framework onto US civil culture, as an inherently white supremacist social-political system in relation to African-Americans. Chapter 4, “The Severed Bond: Policy and the Materiality of the Failing State,” will argue the grounds on which the social contract has been broken by the United States and the factors that justify the invocation of social nullification. Brent T. White, Simone M. Sepe, and Saura Masconale in “Urban Decay, Austerity, and the Rule of Law”14 argue that austerity policies in urban centers undermine the maintenance of infrastructure. Though regularly argued as hampering economic development, White et al. assert that the larger effects are the subversion of legitimacy of the government, the dismissal of the state’s obligation to the well-being of its citizens, and the citizenry’s rejection of commitment to the governing apparatus, all foundations of the social contract. White et al. state, “When urban decay sets in individuals are led to believe that the government and thus citizens as a collective have abandoned their commitments to following the basic rules governing the social contract.”15 The state’s commitment to its obligatory responsibilities to citizens can be measured through measurements in specific areas. “The Bonds of Citizenship Severed” will take up this argument and examine the categories of criminal justice, healthcare, and housing policy as indices for determining the degree of African-American socio-political-­economic access and treatment, as metrics for determining the state’s adherence to the social contract as a commitment to equality and African-­American well-being. Chapter 5, “To Establish a Different Order of Things: Reconstructions of Afri-Civic Identity,” will rejoin Chap. 2’s analysis of the articulations of Man/Citizen within African-American theory and praxis. The chapter will argue a tradition of independent constructions of citizenship as existing within African-American political theory and activism, signifying a formulation of Man/Citizen that exists beyond the contradictory formulation of the European Enlightenment model. “To Establish a Different Order of Things: Reconstructions of Afri-Civic Identity” will argue this tradition to be central to social nullification’s occurrences within African-­American political theory and praxis. Through these frames the chapter will examine the writings of Martin Delaney, the writings and organizing of Ida B. Wells, and the reparations movement as examples of social nullification.

 64 Emory Law Journal 1 (2014) Arizona Legal Studies Discussion Paper No. 13–15.  Ibid., pg. 1.

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Chapter 6, the Conclusion to Beyond Civil Disobedience: Social Nullification and Black Citizenship, provides an insight into the basis of the work, its raison d’etre. Having argued the irreconcilability of the African-American presence to the ontology of US civil-political society and the manifest moments in which African-Americans have argued, practiced, and conceptualized the necessity of de-linking from said society, the conclusion will address the question of what way forward? By acknowledging the limits of group social advancement resulting from the state’s abrogation of the social contract and the impossibility of realizing full citizenship and its rights on the terms established by the social contract as practiced in the United States, the conclusion of Beyond Civil Disobedience: Social Nullification and Black Citizenship argues the necessity of pursuing alternative paths to realize maximum life outcomes for African-Americans as a group. Based on alternative articulations of personhood, Beyond Civil Disobedience: Social Nullification and Black Citizenship calls for the construction of alternative systems of social organization whose goals are to support African-Americans in their struggle to exist as the human beings they have always understood themselves to be. If in his penetrating analysis of the failure of the white liberal’s failure to commit to the Black freedom struggle16 Martin Luther King Jr. argues civil disobedience is a manifestation of the citizen’s commitment to bringing the state into alignment with just laws, then Beyond Civil Disobedience explores visions of the African-American self that looks beyond the shining city on the hill. And at the last, this work is a humble attempt to dare again, think beyond the parameters of narrow civic imagination, the constraint, orderliness, and finitude of Americanity, which has so long encircled African-­ American/Black life. This work attempts to consider the possibilities of Black life, the experiences of African-descended people in America as not limited to the terms determined by a hostile system and its occupants. The lives of African-Americans can no longer be a question of “proving” ourselves to the nation, “earning” our place in the dominant order, or “realizing” the promise of this nation’s creed. The sun is setting, there are new worlds that must be born and new fires to be lit. And these are the only visions that can matter for a people that have so long struggled toward the light.

 Letter from a Birmingham Jail. London: Penguin Books, 2018.

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CHAPTER 2

“Is It Not Wrong, a Balance Which Tilts, a Plummet Which Deflects”: A Survey of Social Contract Theory

I. To review social contract theory through the prism of Afri-American thought and history is to encounter a fundamental challenge to the basic assumption that the social contract is universally applied. What becomes apparent is that the presumption of universal application and the very notion that there exists a normative set of circumstances in which contract theory functions must be re-thought. This chapter identifies three such foundational assumptions of contract theory which are challenged by the matter of Black life. The first assumption is the theoretical-historical explanatory directive of contract theory. Social contract theory has been used to explain the rise of certain types of civil-social organization. In these, contract theory is read as a fundamental mechanism for the crafting of a new form of society, one that is distinct from previous societal incarnations. Implicit in this assumption is that contract theory served as an innovation: a step in the revelation of specific characteristics of human consciousness. The moral or ethical determination is beside the point; what is critical is that the invocation of contract theory says something specific about human beings (“Man”) at certain moments in the history of human consciousness. This revelation is the inherent agency and critical awareness of their social circumstances by political subjects. This

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. F. Peterson, Beyond Civil Disobedience, African American Philosophy and the African Diaspora, https://doi.org/10.1007/978-3-030-77554-4_2

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awareness informs the expectations these subjects possess about the conditions of their lives and the role of social-political power and authority. Contract theory is grounded in a second assumption—that this form of social-political organization is applied and accepted through free will. From this perspective, the radical individual of the pre-contract world consciously decides that this new form of governance and subjective relationship is preferable to the old. Those who are subject to the new order are in a position to determine the specific direction of their individual destinies, inform the apparatuses of governance, and infuse the organs of governance with their particular characteristics. In short, contract theory presupposes the contract and its fruit to be reflections of the will of those from whom it arose. Thirdly and finally, an assumption exists that the contract is created to protect the atomic individual from other atomic individuals, all of whom exist as subjective beings, disengaged from one another. Through the establishment of government, community, in the form of the polis, state, kingdom, or nation, comes into existence. The contract becomes the instrument through which a type of collective self-awareness is established and/or formalized. Presumably, the establishment of governing bodies through the contract alters the nature of human consciousness, the materiality of human life, and the historical conditions of that life. Reflections on the relationship between members of a community and the individuals and structures that rule them are, arguably, as old as human communal living itself. Natural questions that arise from these circumstances would encompass the legitimacy of the person or persons that govern, the efficacy and stability of the structures of governance, and the benefits that are apportioned to and derived from the ruling persons and structures. From early human hunter-gathering societies1 to gerontocratic matriarchal/patriarchal structures, clans, kingdoms, empires, republics, autocracies, and democracies, the same questions have been fundamental to the organization of human societies: Who rules, why do they rule, and 1  James Scott’s Against the Grain: A Deep History of the Earliest States (New Haven, CT: Yale University Press 2017) argues the hierarchical tendencies in even early societal forms. Interestingly, Scott argues that a tension existed between the early sedentary societies, which were based on agrarian production and the desire to control the processes of reproduction, agricultural, and otherwise, and those cultures that maintained their nomadic gathering methods and remained free of growing authoritarian control, as embodied in the rise of state structures.

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how should they rule? Social contract theory has been invoked for a variety of reasons: Different authors have used the notion that society is based on agreement for different purposes. It has been advanced as an empirical hypothesis to explain the actual origin of political society; it has also, more commonly, been used to answer the problem of political obligation and to justify the individual’s duty of obedience to government in terms of a prior agreement to limit the extent of the government’s authority on the grounds that the initial agreement which authorized the government was confined to specific areas of legitimate coercion. (Mulgan 1979, 121)

The profundity of these questions is evident from the earliest moments of political/philosophical/theological reflection. The most ancient civilizations, though they did not articulate a separation between “secular” and “sacred” matters, provide examples of the concern for the relationship between the ruler and the ruled. “The Egyptian language lacked a word for ‘state’”; so Henri Frankfort initiates his discussion of the ancient Egyptian political order (1948, 30). The lack of specific terminology inhibits contemporary access to discussions of ancient socio-political relationships and seems a challenge to understanding the presence of social contract theory. The political organization that Frankfort describes is theological, as it was understood through the prism of ancient Egyptian religious beliefs: “The Egyptian state was not a man made alternative to other forms of political organization. It was god given, established when the world was created; and it continued to form part of the universal order” (30). It was metaphysical since the cultural, social, political, geographical, and economic entity known as Egypt (Kemet) was understood as a part of the larger cosmological order: eternal, unchanging, and necessary in the conditions of its existence. The earthly representative of the divine order, the Pharaoh (Per-A), was the undisputed ruler and arbiter of all affairs of the kingdom. Under such a system, the assumptions of representative government, as we understand them, are non-existent. Yet, within the corpus of ancient Egyptian literature are found the assertions of the kingdom’s subjects—their articulations of the expectations that surrounded governance. Alan Gardiner’s translation of the Middle Kingdom text “The Eloquent Peasant” (1923) provides access to the literature of ancient Egypt in one of its more ascendant and stable moments. A moral tale, “The Eloquent

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Peasant” recounts how an unnamed peasant—who has been robbed of his possessions (oxen and crops) and beaten by a powerful lord—confronts a ruler. Standing before Rensi the Royal Steward, a political representative of the Pharaoh, the peasant critiques the failings of governance in nine separate petitions. The process of petitioning reveals a compelling fact, one which is vital to understanding the expectation that the governed had of the governors. Though a stratified hierarchical system, “[i]n theory every subject had access to Pharaoh for petitioning and every dispute could be submitted to his inspired and ipso facto just decision. The king’s deputy and chief justice, the vizier, was explicitly instructed at his investiture to receive any petitioner” (Frankfort 1948, 44). From this we can understand the sense of entitlement which the subjects of the Kemetic (Egyptian) kingdoms had toward their rulers. In the tale of the Eloquent Peasant, although the peasant does not articulate a notion of mutual obligation between state (Kingdom) and subject, the peasant’s actions convey the standard of moral and ethical behavior and the temperament that the people expected of the Royal Steward—and of all who represented the Pharaoh, and thus also represented the kingdom. The Peasant, in poetic language, articulates fundamental principles by which the Steward is expected to conduct the business of Pharaoh (and therefore the kingdom). These principles are embodied in the Steward, who, as governor, is representative of the good (“Let me make thy name in this land in agreement with every good ordinance-a ruler void of rapacity, a magnate void of baseness, a destroyer of falsehood, a fosterer of justice” (Gardiner 1923, 9)). The Steward is beholden to those he governs (he is “one who comes at the voice of the caller” (Gardiner 1923, 9)) and officials can influence those they rule (“Do unto the doer, so as to cause him to do,” Gardiner 1923, 10). Because the governor is a part of the larger metaphysical-­social order, he plays a crucial role in the maintenance of the natural and spiritual order of the land: “The sustenance of all mankind is from thee, even like the flood. Thou art Hapy2 (sic) who maketh green the meadows and furnisheth the wasted tracks[.] The true balancing of the land is the doing of justice” (Gardiner 1923, 13–14). Corrupt governance (in the form of the Steward) undermines the stability of the land: “Behold, thou art like a town not having a mayor, like a company not having a chief, like a ship in which is no commandeer, like a band of confederates not having a leader” 2  “Hapy” is the Ancient Kemetic (Egyptian) deity of the Nile River, which controls the river’s inundations and recessions.

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(Gardiner 1923, 15), and later, “Thy affairs are all awry; the perverter (sic) of the entire land goes straight onward” (Gardiner 1923, 17). Finally, in a mirroring of the attributes of the divine judge in Kemetic cosmology, objectivity is at the heart of the steward’s temperament: “Thou art the peer of Thoth, judging without inclining to one side”(Gardiner 1923, 18). Similar ideas about the nature of leadership, and similar expectations of leaders, are found in the “wisdom text,” The Book of Ptah-Hotep. A guide for moral and ethical behavior, The Book provides instruction for the layperson and for those in positions of power. In the principle/concept of Maat, a principle and a deity which can be translated as “justice” was central to governance and judgment. Articulated as the principle that maintains the ordered nature of the cosmos, and thus which governs both the natural and the social worlds, Maat encompasses and directs the actions and behaviors of all members of the kingdom: “It is justice as the divine order of society, but it is also the divine order of nature as established at the time of creation” (Frankfort 1948, 54). To be in alignment with Maat is to be in alignment with creation itself. To be in alignment with the order of reality is to be in alignment with justice itself. From the very beginnings of creation, Maat pervades all that exists, from the gods, to the Pharaoh, down to his representatives. We have seen that the doctrine of the divinity of the Pharaoh found practice expression in the political and social organization of the country, we have no right to doubt that his role as a champion of justice was taken seriously. In other words, we must assume that the Egyptian (sic) officials found in their function as agents of Pharaoh the same guidance which religious beliefs elsewhere provide. (55, italics mine)

These foundational conceptions of the relationship between the acts of political figures and the cosmological order informed the ancient Kemetic layperson’s understanding of right behavior and most certainly informed the teachings found in The Book of Ptah-Hotep. All that pertain to authority and governance assert the importance of balance and order, as well as the centrality of the political official’s relationship to the public, in deed and perception. “If you are a powerful person, gain respect (italics mine) through knowledge and gentleness of speech and conduct. … Those who abuse their authority provoke resistance. … And those who place themselves above others are brought low.” The text continues, “If you are a judge chosen to maintain order among the people, handle matters with a

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strict sense of justice. Do not lean to one side or the other. Take care that no one complains that you are unfair and your actions result in a judgment against you” (Karenga 1984, 46). The Book also suggests there is a form of worldly immortality for those who govern justly: “If respect for right exists in the heart of those who have been set in authority they will be beneficent always and their wisdom shall endure forever” (48). These instructions reveal a deep recognition and respect for the relationship, the dependence of those vested with the authority to judge and govern upon those whom they judge and govern. Equally importantly, the instructions convey that justice and the authority to govern do not derive from an arbitrary assertion of power over others but, instead, are anchored in eternal principles that must be embraced and enacted by those who hold power. In the Western tradition, the first encounter with the notion of individual obligation to civic authorities precedes Enlightenment-based thought by almost 2000 years; it is found in the writings of ancient Greek thinkers. Plato’s Socratic dialogues, The Crito and The Republic, address the relationship of the state to the citizen and the nature of justice. The Crito describes a dilemma regarding what constitutes “right” behavior in the context of legal decision-making. When Socrates is sentenced to death by the Athenian Senate for the crime of “corrupting the youth,” his associate Crito appeals to him to accept money from his friends and go into exile, thus saving his life and allowing him to continue to “philosophize,” to teach, thereby avoiding the mistake of “throwing [him]self away when [he] can be free” (Plato 1984, 449). Socrates, after addressing Crito’s concern that his friends would be viewed in a poor light for allowing him to die when they could have aided his escape, moves to the heart of the dialogue: “Should a man do what he has agreed with someone to be right, or may he break his agreement. … If we clear out from here [escape] without first getting the city’s consent, are we doing evil, or not, to some people, and that, too, to people we least ought to harm?” (454). Socrates places the idea of defying the ruling of the Athenian Senate in the context of a relationship of obligation to which Socrates is already a party. The performance of the good is a part of meeting a civic obligation, as such collective assent was seen to be “right” at its inception. Failure to meet the terms of this contract and to continue in this agreement would be a performance of “evil” and do “harm” to the participatory body. To situate this line of thinking in a larger political/ethical context and to create the necessary interlocutor for the discussion, Socrates develops an early version of the animated piece of legislation from the “I’m Just a Bill” episode of

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the School House Rock animated series (Disney Studios, 1996), in the form of a walking, talking, and debating embodiment of the Laws of Athens. Suppose, as I was about to run away from here … the Laws and the Commonweal of the state were to appear and ask, “Tell me Socrates, what have you in mind to do? In trying to do this, can’t you see that you are trying to destroy us, the Laws and the whole state as far as you can do it? Or do you think it possible that a city can exist and not be overturned, where sentence given has no force but is made null [italics mine] by private persons and destroyed?” (455)

The language of destruction is key as the Laws argue for their survival on the basis of a recognition of the citizen’s commitment and obeisance to them. The power of the state was located in its laws and the power of the laws derived from the participation of the individual. The Laws continue on in the tone of a wounded friend, inquiring if Socrates’ betrayal is due to his dissatisfaction and asking, if it were what the source of that dissatisfaction was, given that the state had provided for Socrates: “what do you complain of in us?” Detailing the role the law has played in the life of Socrates, the Laws illustrate a series of conditions that have enabled Socrates to live a life of stability, development, and protection. “Did we not bring you into life and through us your father took your mother and begat you … are the marriage laws those of us you find fault with? Well the laws about feeding the child and the education in which you were brought up. Did not those which had the duty do well in directing your father to educate you in mind and body?” (455). Taking a paternalistic tone, the Laws assert that the relationship between the state and the citizen is equivalent to that which exists between parent and child. The state exercises absolute authority over the citizen/child’s life and the submission of that citizen/child to the authority of the state is equally absolute. Civil disobedience, the refusal to obey the law, is akin to blasphemy: Are you so wise that you failed to see that something else is more precious than father and mother and all your ancestors besides- your country, something more revered, more holy, of greater value, as the gods judge and any man have sense? […] you must honour and obey and conciliate your country when angry … you must either persuade her, or do whatever she commands; you must bear in quiet anything she bids you bear, be it stripes or prison. (456)

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That expectation of absolute obedience to the state is founded in the original agreement between the individual and the state and it is anchored in the notions that citizens voluntarily accept the terms of living within the society and agree to the rightness of those terms. The Laws present an organic and intimate picture of the relationship between state and citizen, one in which dissent portends dissolution and disagreement reveals disobedience: “WE say that the disobedient man does wrong in three ways when he disobeys us: firstly, because we are his parents, secondly because we are his nurturers, and thirdly because he agreed to obey us and neither obeys us nor convinces us if we do anything not right” (456). What maintains the voluntary nature of the relationship, the element of choice, is that option that can be exercised when the citizen is in disagreement with the law and no longer wants to maintain the relationship. If there is “dissatisfaction found wherein,” the citizen has the freedom to leave and embrace exile. “Anyone who does not like us (The Laws) has leave to take what is his and go where he will. None of us Laws will stand in the way or dissuade him” (456). The Laws argue that there are opportunities for the Laws to be changed through persuasion but, as in a literal family, if the attempt to persuade fails—as is the case in Socrates’ dialogue The Apology—the citizen must accept society’s decisions as absolute. Aristotle’s analysis of the fundamental nature and aim of the state embraces a similar socio-ethical vision of the reason for the existence of the state: The goal of the state is to “enable its members, in their households and the kinships, to live well” (1992, 196). Yet, whereas Plato articulates the relationship between the citizen and the state as one based on a consensual utilitarian agreement—the citizen submits to the laws of the state in exchange for its provision of various services and commitments—Aristotle rejects the clinical nature of said contract. “A state’s purpose is … to provide something more than a military pact of protection against injustice, or to facilitate mutual acquaintance and the exchange of goods … a state’s purpose is not merely to provide a living but to make a life that’s good” (196). Aristotle is aware of the arguments made in support of a utilitarian, contractual foundation of society. In reference to Lycophron, an early Sophist, he argues that the aim of the state is to be concerned with virtue and that if security is the only goal of the state then “the association is a mere military alliance … and under such circumstances becomes a mere agreement or as Lychphron the sophist put it ‘a mutual guarantor of justice’” (197). The Lycophronic view of contract theory establishes limits

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upon state power and “individual” freedom and prerogative within political society. Therein lies a tension between that which is perceived as natural and unalterable, human instincts (physis), and that which is man-made, social-political systems (nomos). In this understanding, contract theory navigates between the physis condition of human nature, the commitment to self-interest and pleasure, and nomos, the artifice of society manifested in those institutions (the state and its laws) that have been constructed to limit or curb the naturally occurring drives of physis, which, unchecked, could lead to the disruption of orderly living. The Aristotelian view of the basis of society relies on a presumption of familiarity, intimacy, and homogeneity among society’s members. The state’s provision of the “perfect and self sufficient life” depends on those intimacies: “we find in states connections between relatives by marriage, brotherhoods, sacrifices to the gods, and the various civilized pursuits of a life lived together. All these activities are products of affection” (198). This dependence on an ethniccultural sanguinity limits the expansion of the Aristotelian notion of citizenship and the social contract into more abstract and expansive contexts and presents inherent challenges to the populations that will make claims for citizenship upon Modern states. Archaic societies offer other examples of prescribed relationships between the governor and the governed, as illustrated within the Old Testament of the Christian Bible. Late nineteenth-century writer David Ritchie asserts the presence of contract theory in the medieval period appeared: “In the popular consciousness of the middle ages and among writers on the ecclesiastical side there grew up that particular form of the contract theory which has fixed itself most prominently in the minds of ordinary men and of politicians struggling with despotism-the idea of a contract between government and people” (1891, 659). Unlike the texts of ancient Kemet examined above, Christian biblical passages express a “formula under which the mutual obligations [italics mine] of ruler and subject could conveniently be thought of, and under which the responsibility of kings not only to God but to their subjects could be asserted and maintained” (Ibid.). A scene early in the establishment of the Hebrew state, during a period when a priestly council, rather than an autocratic monarchy, practiced governance, makes evident the notion that the authority of the king derives from recognition by both the Godhead and the social leadership of the Hebrew people: “So all the elders of Israel came to the King at Hebron; and King David made a covenant with them

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at Hebron before the Lord, and they anointed David King over Israel.”3 This moment occurs early in the establishment of the Hebrew state, where the practices of governance were still invested in the model of a priestly council instead of autocratic monarchy, articulates an idea of the authority of the King deriving from the recognition by the Godhead and the cultural and social authorities of the Hebrew people. Accountable to both social and divine sources of authority, the king must meet expectations both sacred and secular, metaphysical and mundane.

II. Contract theory’s arrival on the stage of Modernity, or rather its appearance as an element of the Weltanschauung we know as Modernity, occurs in the writings of English philosophers Thomas Hobbes (1588–1679) and John Locke (1632–1704) and French thinker Jean-Jacques Rousseau (1712–1778). All three wrote in the midst of dramatic changes in the ways that political authority, organization, power, and the relationship of the governed to the governors were understood and practiced. According to Tina Botts, Enlightenment social contract theory conflated two ideas of equality, making a single “legal-equality-as-­proportionalequality” (2020, 61). “Legal equality” was made to mean that “[n]atural equals are treated the same and natural unequals are treated the same, i.e. receive an unequal portion of whatever social good is available all have the same rights” (2020, 61). The philosophical transformation lay in the “intellectual trend away from a teleological worldview and toward a mechanistic worldview in which the world worked in terms of causes and effects” (60). The materiality of the challenges wrought on the governing orders by the rise of new social, economic, and ideological/religious classes exposed cracks in the already unsteady systems of late feudal, early Modern Europe, as Cedric Robinson noted: “The changes in articulations of contract theorizing reflect these material changes but arguably the foci of contract theory change as the foundation of the branch of thought changes from, questions of ‘reason and nature’ of antiquity, to ‘will and artifice’ as distinguishing of ‘modern political thought’” (2000, xi). The cultural transition from the “ancient view of the morality of the common good” to the 3  The Holy Bible Revised Standard Version. New  York: New American Library, 1962. II Samuel, chapter 5, verse 3.

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“idiom of individuality” facilitates a self-awareness that is based on a calculus of atomic interest, placing negotiation for individual benefit at the heart of social relations (Ibid., 3). For many, depending on one’s location in the developing order, the concept of natural rights served as a form of mystification that obscured the logic that was central to the new socio-­ political world. Significantly, this consciousness becomes paradoxically collectivized through social contract theory. In this discussion of the role of will in contract theory, the erection of the governing apparatus of the Modern state and the relationship between the governors and the governed are central elements in this process of creating governing bodies. Will is the intention that forms the basis of a conscious, voluntary decision on the part of an individual or community to become a part of, or permit the establishment of, a governing person or body whose authority supersedes that of the individual. Attention to will opens the door to understanding the orientation of the artifice that is government: the presence of conscious choice and voluntary decision-making signals that a space exists between the governing body and the body of the governed. This is the space where the individual is able to act, rather than merely passively accept the actions of the governing entity. The role of will in the process of social structuring and in the erection of governing bodies points to the creation of a hitherto non-­ existent thing, the governing entity, which then serves as a manifestation of the character of the contractarians, an extension of the intentions of the governed, and a tool to implement the goals of the dominant classes. Perhaps … one can say that if consent, or promise, is to have a meaning in the sense that consenting or promising so binds us to moral and political duties that violation of consent or promise would be wrong and not simply inconvenient or vexatious or illogical or illegal, the will becomes that faculty that binds us when we freely choose something … that is not caused. (Riley 1982, 12)

Writing in the wake of the struggle between Cromwellian theo-­ democracy and the mediated autocracy of Charles I of England, it is, aptly, Thomas Hobbes, witness to the seventeenth-century English Civil War, who articulates the earliest significant Modern consideration of contractualism. Hobbes’ articulation of contractarian theory is significant in that it is the most extreme view of the relationship between the governor and the governed and the role of voluntarism, in the early Modern period. The

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Hobbesian conception of will lies at the heart of his theory of voluntarism. Hobbes, constructing a covenant state, argues that political legitimacy relies on the assent of the subject population. Differentiated from the “commonwealth by acquisition,” wherein the individual negotiates directly with a conquering sovereign to assure their safety and benefit, the “commonwealth by institution” is the result of the mutual cooperation of free (organically empowered) individuals, who, person to person, agrees to the construction of an edifice of authority and rule, the power of which supersedes that of the many individuals. Of the types of commonwealth, it is the former that brings into question the degree to which social assent is possible. Under circumstances of external duress, the meaningfulness of assent is, at best, limited, a fact which limits Hobbes’ idea of the disposition of the will. The idea that is it possible for an individual to contract “directly with the conquering sovereign to obey in exchange for life and security” (Ibid., 27), provocatively calls into question whether there indeed is real freedom in the population’s decision-making. Coercion or coercive circumstances can render dubious, assertions of free-willed decision-­making. Yet Hobbes asserts a radical subjectivity in the face of domination: the assertion of the will and the power of individual choice sets limits even on the conqueror’s power of life and death: “If a conqueror can kill me if he please, I am presently obliged, without more ado to obey all his laws … may not I rather die, if I see fit. … The conqueror makes no law over the conquered [but] by virtue of their assent” (Ibid.).4 Hobbes’ notion of consent depends upon the idea that the will, despite the pressure of circumstances, always possesses the freedom to choose. Yet this will has but one fundamental choice: between the acceptance of a superior authority—whether it be through the results of acquisition (or “whether that authority exists as a consequence of acquisition”?) or of the establishment of a cooperative institution—or the rejection of that authority, and the retention of the inherent powers and unmediated circumstances of the natural order.

4  Riley (1982) argues that, in Hobbes’ contractarian view, this sets limits on the conqueror’s power, which undermines a fundamental idea of The Leviathan, Hobbes’ assertion of the absolutist state. However, it could be contended that the notion of absolute power itself is fraught, as there is an inherent dependence of the sovereign upon the cooperation of the people to achieve even the most mundane tasks. This dependence sets boundaries on the sovereign’s power and forces at the least an implicit negotiation between the governor and the governed. As the anarchist maxim states, “If none obey, then none can command.”

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John Locke’s social contract theories and their place in the formulations of the early American republic weighed heavily on a society that faced with circumstances dramatically different from those of their intellectual and political forbearers, and struggled to consolidate and rationalize its conceptions of citizenship in relation to notions of equal representation and opportunity. Drawing from a broader understanding of the meaning and direction [of the social contract?] than the blunt utility of Hobbes’ construction, which formulates consensual social contracts as mechanisms to escape the ugliness and uncertainties of life outside of cooperative social networks, Locke’s conception of the willful subject is informed by the precepts of the natural law and inherent rights of self-­ determination. The preeminence of Lockean contract theory among colonial American activists emerged from the tumult of contractarian theories imported from Europe. Moderate readings of the contract affirmed the consensual relation of the individual to the state (association), but borrowed adjacent ideas, such as “Pufendorf’s notion that the contract of ‘association’ (the social contract) was followed by a second contract of ‘submission’ to the newly constituted government (the political contract)” (Hulliung 2007, 17).This type of interpretation held that citizens were “no longer permitted to decide what is and is not [theirs] by natural right [and they must?] surrender their natural rights [when they] enter into society” (18). John Locke’s position challenged the notion that the citizen could not negotiate the social contract: “the people can remove the legislative power, for government is held as a revocable trust rather than an irreversible contract of submission” (Ibid.). The open-ended quality of natural rights, which contain the ongoing possibility of self-­determination, aligned with the conditional nature of Lockean contract theory. The relation of the citizen to the state was subject to constant assessment and reassessment since the possibility of critique, dissent, dissolution, and ultimately desertion of the form were inherent to the circumstance, condition, and character of the citizen as ideal and actual being.

III. “From the moment of its birth, the anomaly of slavery plagued a nation which asserted the equality of all men (sic), and sought to derive powers of government from the consent of the governed.” (Du Bois 1992, 3)

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The dramatic and unexpected entrance of peoples of African descent onto the stage of US citizenship challenged and shocked a system that was structurally capable of embracing that new phenomenon but historically and ideologically unprepared for it. The presence and role of Africana communities in the centuries spanning rise of Western European/North Atlantic global domination was and is not an untold story, although it still remains widely unknown and underappreciated. The place of the “African” in the development of the Western world over the last six centuries is indisputable. Cedric Robinson quotes Herman Merivale: We speak of the blood-cemented fabric of the prosperity of New Orleans or the Havanna: let us look at home. What raised Liverpool and Manchester from provincial towns to gigantic cities? What maintains now their ever active industry and their rapid accumulation of wealth? The exchange of their produce with that raised by the American slaves; and their present opulence is as really owing to the toil and suffering of the negro, as if his hands had excavated their docks and fabricated their steam-engines. Every trader who carries on commerce with those countries, from the great house which lends its name and funds to support the credit of the American Bank, down to the Birmingham merchant who makes a shipment of shackles to Cuba or the coast of Africa, is in his own way an upholder of slavery: and I do not see how any consumer who drinks coffee or wears cotton can escape from the same sweeping charge. (2000, 113)

Yet the society, specifically the society of the United States, while it embraced the subservient presence of the enslaved African, as a necessary element in its psycho-social-cultural and economic life, could not countenance an equitable place for the figure. The amendment process to the Constitution of the United States of America (1789) would make possible the legal recognition of (once) enslaved Africans and their incorporation into new positions in society: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several states, shall call a convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the legislatures of three fourths thereof, as the one or other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any

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Manner affect the first and fourth clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (U.S. Const.)

The circumstances of the life of Africans in the English colonies-cum-­ the-United States strike an interesting chord within social contract theorizing. The circumstance under which Africans existed from the mid-seventeenth century to their liberation from slavery reflects the mythical state of nature central to Modern contract theory. The gradual expulsion from legal recognition initiated by the Slave Codes of the Virginia Colony exiled Africans to a place beyond legal recognition, voice, or participation, a place where they were vulnerable to every articulation of white control, domination, abuse, exploitation, and suppression. This chaotic space, where Africans were bereft of rightful existence, did not mimic Hobbes’ “war of all against all” nor “the state of war” predicted by Locke. Rather, it was a space of absolute antagonism and nullification that white colonists directed toward Africans. (“Contractual relations exist(-ed) as a consequence of the social contract and not as the outgrowth of any preexisting rights in the state of nature” (Rosenfeld 1985, 858).) Viewing the experience of Africans through the lens of Hobbesian social contract theory also presents the possibilities of those same Africans gaining entrance into legal recognition, rights, and protections, in short, accessing citizenship. The possibility of such a structural change is evident in the existing 26 amendments to the document. Over the course of well over two hundred years, elected officials and voters have agreed to alter the society’s fundamental laws. Within the fabric of contractualism, minor and major changes to the articulation of the law were possible. These amendments exhibit the responsiveness of the legislative branch and the malleability of the foundational legal structure to the will and demands of the citizenry. A story of the evolution and expansion of US social, cultural, and juridical reality can be told by tracking the amendments to the Constitution. This story has included the presence and position of African-descended peoples, as we see in the passage of the post-Civil War Thirteenth, Fourteenth, and Fifteenth Amendments. Yet, despite these adjustments to the legal framework, the fundamental relationship of the African toward the majority population and the state apparatus remained contested. Charles Mills, in his seminal work The Racial Contract, argues that classical contractualism has an originary and unacknowledged set of priorities

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and repercussions. Understood in the context of white supremacy5 and white supremacist policy, the social contract is a racial contract: The Racial Contract is that set of formal or informal agreements or meta-­ agreements (higher level contracts about contracts, which set the limits of the contracts’ validity) between members of one subset of humans, henceforth designated by (shifting) racial (phenotypical/genealogical/cultural) criteria … as white and coextensive (making due allowance for gender differentiation) with the class full persons, to categorize the remaining set of humans as ‘non white’ and of a different and inferior moral status … so that they have a subordinate civil [italics mine] standing in the white or white ruled polities the whites either already inhabit or establish or in transactions as aliens with these polities and the moral or juridical rules normally regulating the behavior of whites in their dealings with one another either do not apply at all in dealings with nonwhites or apply only in a qualified form (depending in part on changing historical circumstances and what particular variety of nonwhite is involved) … the general purpose of the of the [Racial] Contract is always the differential privileging of the whites as a group with respect to the nonwhites as a group, the exploitation of their bodies, land, and resources and the denial of equal socioeconomic opportunities to them. (1997, 11)

Disrupting the universalist presumptions of contract theory enjoyed by the disciplines of philosophy and political science, Mills reads the theorists and theories of Enlightenment social contract theory from within the socio-materialist conditions of their construction and provides insight into the specific circumstances and challenges of Afri-American social contract theory. The Enlightenment project of democratic representation, though a manifestly political expression, fundamentally grounds itself in an onto-­ philosophic anthropology, a conception of the human whose fundamental being is defined through its theoretical qualities. Asserting a specific form of governance, which functions in particular modes, toward specific goals, the project rests on the foundational question of the type or nature of the 5  “White supremacy should therefore be seen as a multidimensional system of domination not merely encompassing the ‘formally’ political that is limited to the juridical-political realm of official governing bodies and laws but as argued above extending to white domination in economic, cultural, cognitive-evaluative, somatic and in a sense even ‘metaphysical’ spheres. There is a pervasive racialization of the social world that means, that one’s race, in effect, puts one in a certain relationship with social reality, tendentially determining one’s being and consciousness” (Doane, Ashley, and Bonilla-Silva 2003, 42).

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subject who manifests and participates in the system. If Mills’ racial contract betokens a specific type of being, racialized with the attendant characteristics of racial attribution based on historical conditions and currents, then a deeper question needs to be asked, a question regarding the relationship between race and the definition of being. Sylvia Wynter argues that deep within the structure of “western” civilization, implanted in its very foundation, the concept of race functions as an epistemic seedling that serves as a “status organizing principle.” This principle determines social status, resource allocation, cultural value, societal opportunity, and, most pertinent to our concerns in this book (which necessarily relate closely to the aforementioned areas), political access, opportunity, and empowerment: “The issue of race and its classificatory logic … lies in the founding premise, on which our present order of knowledge or episteme … [is] based” (1994, 43). For Wynter, this principle, and the order which stems from it, extends from the epistemic transition of the “divine status organizing principle,” anchored by the “Absolutism of its Scholastic order of knowledge” of the European feudal mode, to the “ostensibly evolutionarily determined genetic organizing principle of [the] Liberal Humanist [mode] … as expressed in the empirical hierarchies of race and class” (Ibid., 53). The attendant construction of the human within this epochal episteme, Man6 (Wynter 2003, 263), appears as the center of discourse, subject of History, anthro-god of destiny, and devastatingly “over-represents itself as if it were the human itself” (Ibid., 260). Man, as a construct of the racialized order already existent in the orders of “Christendom” né “Europe” (Robinson 2000), is universalized and becomes the balance which tilts, the plummet which deflects, as it measures inhabitants of the lands in which he/it comes into contact. This infrastructure of knowledge and consciousness, which manifests in practice and policy, is the framework from which the racial contract emerges. It will determine the terms and conditions of the relationships that form within it. Reproducing the binary schema of the divine and genetic ordering principles (Christian/heathen, saved/sinner, Man/animal, and human/subhuman), the political project of the racial contract 6   According to Wynter, “Michel Foucault identifies the ‘invention of Man’ as the Renaissance humanists’ epochal re-description of the human outside of the terms of the theocentric, ‘sinful by nature’ conception/‘descriptive statement’ of the human, on whose basis the hegemony of the Church/clergy over the lay world of Latin-Christian Europe had been supernaturally legitimated” (Wynter 2003, 263).

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utilizes the order of white/non-white in its definitions of the basic categories and structures of social contract theory; its white supremacist lens informs the erection and practices of social-political structures. Generally speaking, social contract theory presents a theory of history in which humans exist in various degrees of deportment within an originary state of being, a state of nature, from which they are brought into ordered, safe, and profitable societal structures. These structures then shape the evolution of human consciousness because they inform humans’ ability to establish control over elements of the natural world. A central way humans do so is by creating stable networks of social relationships, communities, which benefit individuals yet also exert control over destructive or destabilizing individual impulses. The presumption that reason and rational consideration are qualities of Man is revealed in the fact that humans(?) possess the ability to organize into larger orderly units of mutual benefit and are capable of voluntarily forsaking their inherent powers in order to participate in the creation of a greater authority. Inherent in this history is the already existent humanity of the liberal Modern (over-­ represented, racialized) subject. The erection of society through willing associations and therefore cooperation is a means by which the possibilities of rational attainment are strengthened. The discourse of the racial contract comes directly out of Charles Mills’ interrogation of social contract theory, imposes the binary order of its logic, and establishes a different context for those (non-whites) who exist outside of the normative order, those whose state of nature is “characterized in terms of wildness/jungle/wasteland” (Mills 1997, 13). As residents of these dark places, non-whites are “savages,” existing in a primordial chaos beyond the ability to make rational, reasoned decisions, unable to manifest a command of the social contract that would enable them to create their own societies and enter into the light of Modern civilization. In this context, the entrance onto the stage of Modern political practice for the colonized/enslaved subject is written, not as a change in circumstance from the order of nature to the order of society but as a change in what is perceived as their civilizational possibility. Kidnapped into the West, the colonized subjects (specifically peoples from the African continent) are ostensibly saved from the permanent darkness of the void beyond civilization and given the opportunity for elevation through their contact with Modernity/Whiteness. As Thomas Jefferson stated, “I advance it therefore as a suspicion only, that the blacks, whether originally a distinct

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race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind. … This unfortunate difference of colour, and perhaps of faculty, is a powerful obstacle to the emancipation of these people” (2018, 238–239). Citizenship does not extend to the American slave. Slaves exist beyond the status of legal personhood for they are property; they exist beyond anthropological embrace for they are a lower order of Man—perhaps they are even a higher order of primate—and they exist beyond moral consideration since their souls are not the souls of developed spiritual entities; the hue of their skin reflects the deviant nature of their relationship to the divine and fall short of full consideration. The American Revolution (1776–1783), followed by the ratification of the Constitution of the United States of America (1789), brought into being the first political entity to be realized on the principles of Lockean Enlightenment political ideals. The founders of the United States were self-conscious exponents of social contract theory. Their embrace of John Locke’s articulation of the social contract through natural law theory became the conceptual foundation of the new state and society. In the rhetorical and conceptual manifesto, The Declaration of Independence, Thomas Jefferson of Virginia, John Adams of Massachusetts, Benjamin Franklin of Pennsylvania, Roger Sherman of Connecticut, and Philip Livingstone of New York explicitly imbued the documents with ideas of Enlightenment-based contractualism. The inception of the Declaration of Independence—“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another”—articulates the fundamental right to dissolve a political relationship, thus undermining the idea of fixed and eternal obligations of the governed or the dominance of the governor. The same sentence continues by asserting the right to create new political entities: “To assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” The Declaration’s second paragraph expresses the central idea of Enlightenment contract theory—that the source and power of government derives from associations of free individuals who allow the governing apparatus to wield power on their behalf: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The same paragraph then proceeds to assert that governments have an obligation to the governed which exists within a series of obligations that together ensure the natural rights of the governed; if the government fails

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to ensure those rights it may be subject to power of the governed to “alter or abolish” the government: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The people have the right to erect another government based on whatever foundations they so choose. Since the governed are within their rights to hold the governing bodies accountable when they violate the natural rights of the individual, it is their “(inherent) right and duty (to the natural justice of God and God’s creation)” to resist those violations: “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” The creation of the Republican form of government also heralded the arrival of the Modern nation-state which was inscribed with the social, economic, and political systems that were grounded in secular social-civic practices. The United States, at its founding, was an experiment of sorts: an exploration of the capacity of the populace to self-govern through elected representation, of the centrality of private property and free market economic principles, and of the racial ordering of Western European identity. These elements came together to form a stress test concerning the ambiguous and ambivalent meaning of freedom for the indigenous populations of North America, for women (of all races), for unpropertied white men, and for enslaved Africans. The new society purposefully denied these groups the promises of equality and freedom by refusing them access to and participation in the new state. Article I, Section 2.3 of the US Constitution states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” In the Constitution’s prescriptions regarding representation to Congress and the taxation of the populace, the relation of these groups to the state is vaguely expressed. “Free persons” are the empowered members of the state, while those taxed but who implicitly lack access to the privileges that “free persons” possess are “those bound to Service for a Term of Years, and excluding Indians not taxed, three

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fifths of all other Persons.” This category comprises (unpropertied) indentured servants, Indians, and enslaved Africans. Here the fundamental flaw in the new state’s application of the social contract becomes apparent. For these marginalized communities, there was obligation without privilege and responsibility without rights. In levying taxes upon the labor of these marginal populations and upon the products of their labor, the federal government extracted financial value from these bodies. Moreover, each state which included these bodies in the population count to determine representation within the House of Representatives extracted electoral value. The former flies in the face of the most basic aspects of social contract theory since this value is extracted without consent or the provision of right or privilege: an unabashed and hypocritical example of taxation without representation. The latter extraction of value undermines the principles of social contract theory since the electoral value derived from counting these “other” bodies creates power at the federal level, which does not represent or reflect the intentions of those bodies. Article IV, Section 2.1 of the Constitution states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The continued exclusion of enslaved Africans is demonstrated in the definition of nationality. The category of “native born citizen,” a status upon which eligibility for elected office rests, was not one which enslaved Africans, whether newly imported or born on US soil, could hold. The same was true of naturalized citizenship which those not of African heritage could access after nine years of residence. The mystification woven into the Constitution of the United States of America, in its explicit statements about the terms, rights, and privileges of citizenship, masks the logic determining who is excluded from those terms, rights, and privileges. This foundational textual act of mystification calls into question the fundamental tenets of the social contract. In the US context, these assumptions and conceptual devices—the state of nature as empty of aboriginal peoples, society as non-exploitative and consensually and cooperatively founded, the political state supposedly ­illuminatingly conceived of as arising through the actions of an invisible hand—are unavoidably an abstraction from the European and EuroAmerican experience of modernity. (Mills 2017, 28–29)

Further evidence of the way that the suppression of African peoples is bound up in how the white state apparatus was constructed and

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maintained, and in how the scope of its obligation was defined, is located in the additional clauses of the Constitution. Those clauses included the Three-­fifths Compromise, the 20-year extension of US participation in the Atlantic Slave Trade (1788–1808), the Fugitive Slave Clause, and the Military Clauses. All addressed the constitutional elephant in the room while rarely calling it an elephant: All were founded in and enabled the continued dependence of the Southern states on the enslavement of African and their descendants. Whereas the Three-fifths Compromise afforded greater congressional representation for those states with large enslaved populations while denying those same enslaved populations the right of congressional representation, the Fugitive Slave Clause explicitly addresses the uncertainty of maintaining control over sentient, self-aware property. If, as Du Bois stated in Black Reconstruction in America, 1860–1880 (1935), the runaway slave was the “safety valve” of the peculiar institution (1992, 62), then the Fugitive Slave Clause was the plug by which the pressure of slavery was maintained. The clause explicitly made “the governor of the state responsible for insuring (sic) the return of fugitive slaves” (Berry 1995, 7). The initial proposal provoked the representatives’ resistance because of the obligations it assigned the governor’s office and because of the burdensome nature of the provision. The final proposal did not allocate responsibility to any specific official, but “ultimately, the rendition of fugitive slaves fell on the president under his duty to enforce the Constitution and laws” (Ibid.). The aforementioned Military Clauses deepened the federal government’s obligation to support the system of Southern slavery. At the same time, slavery was ever argued as an important aspect of state’s rights and it was the inherent right of states to manage their affairs without interruption from the federal apparatus. This clause, along with the Fugitive Slave Clause and extension of the Atlantic Slave Trade, wove the management of enslaved Africans in the South into the very fabric of the nation at large; the ultimate responsibility for the preservation of their enslaved condition and, by extension, for their moral and political invisibility belonged to the nation as a whole. The military clauses, as stated in the Constitution, provided that the states would keep order within their own borders, but if invasion occurred, the national government was responsible for defense. If overpowering rebellion occurred, the state government could request federal aid, but the national government could not intervene at will ‘it will be the duty of the general government to aid when the strength of the union is called for.’ (Ibid., 6)

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The importance of these clauses to the Southern states—which would not ratify the constitution without them—especially when viewed in contrast with the scant attention that the Northern assemblies paid those clauses reveals the necessity of slavery to the new government’s vision of the country, the powerful influence of the slavocracy over national debates, and the new nation’s embrace of the denial of African humanity as one of its defining features. “These debates lend credence to the view that the southern states would not have ratified the Constitution without the proslavery promises. The Fugitive Slave Clause and the commitment of the national government to protect slavery, but not interfere with it, were indispensable parts of the Constitution” (Ibid.). As Wynter tells us, the US Constitution implicitly embraces the universalist definition of the human, yet denies that “human” connotes the equality of all human beings. The Constitution thereby disregards the concept’s function as an equalizing principle, thus disavowing the existence of an intrinsic commonality between diverse peoples and the existence of shards of sameness that are shared between individuals, groups, communities, nations, and races, including African peoples. Across the Western World, and specifically in the United States, Africans were placed outside the legal bounds of the “family of humanity.” This was the condition and formal position of the enslaved African né Negro (African-­ American) for the first 76 years of the republic. The articulation “three fifths of all other Persons” dramatically displays the particularities of citizenship in the United States. At the same time, one might say that it reveals a system of thought and practice that is as yet incomplete and which remains open to becoming a more perfect union. African (-American) theorists and activists have been responsive to and engaged with both these seemingly contradictory interpretations. Lewis Gordon perhaps encapsulates the paradox best: “The history of race under republican systems was premised on the exclusion of certain people from the system on the grounds of systemic integrity” (2017, 38).

IV. The years that ensued between the ratification of the Constitution and the passage of the Civil War Amendments to the Constitution saw a constant battle over the place of the enslaved African in the political body of the United States. The Three-fifths Compromise, the 20-year extension of the US participation in the Atlantic Slave Trade, and the Military Clauses were

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continuously challenged by Africans (-Americans) and their allies. This contestation manifested in a variety of forms. It could be considered that these acts of resistance/affirmation addressed, to greater or lesser degrees, the binary stars of the American racial debate: African humanity and African-American citizenship. The false dichotomies of rebellion/reform and violent/non-violent resistance do not hold if one understands Black anti-slavery efforts to exist on a continuum of practice along which actions depended on the circumstances and opportunities available to activists. What was a central line of demarcation was the exact position the Constitution appointed for the Negro in America. This fundamental question of the place of the African/Black person in US society undergirds the superficial dilemmas about tactics and strategy: armed militance or friendly persuasion, emigration or colonization, nationalism or assimilation. I therefore suggest that we attend to the meaning of the actions of enslaved Africans, and the questions those actions raise, in light of the problem of (racialized) US citizenship. We might therefore analyze mass armed revolt in light of a petition to the congress; we might consider enslaved Africans’ escape to Native American communities in light of the organization of Abolition Conventions; we might think about the establishment of maroon settlements in light of anti-slavery lectures taking place across the Western frontier. These actions assert and recognize the personhood of Africans in the United States and question the possibility of citizenship for Africans in the United States. Although they cannot be separated, the questions of the fight to affirm the humanity of Africans in the United States and the fight (or even the desire) for citizenship require distinct obligations. “Citizenship entails constitutionally granted political rights and privileges which make one a full fledged and active member of the body politic” (Brown 1997, 86). Enslaved Africans’ visions of personhood and freedom, however, transcended the limits of America’s political imagination. The entrance of African-American activists and thinkers into the arena of social contract theorizing transformed foundational elements of this theorizing. As this chapter has discussed, social contract theory presumes a notion of humanity that entails a recognizable commonality among the participants in the social organization. Equality among the members of the community exists wherein all function on common grounds of belief, interest, and expectations as to the function of the community and state in their lives. Equality before the law and equality of opportunity are core principles in this relationship. The role of consent is the second element of

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presumption within the social contract. The conscious and willing decision to create or form a confederation of individuals, all voluntarily joining in the construction of a political entity, empowered by the voluntary submission to a centralized power, reflects the paradox of inherent freedom that the social contract embodies. The decision to submit to the power of a ruler or the state is one that only a free person can make. Coercion, force, and control fly in the face of the notion of a contract and speak to a lack of freedom, will, and decision-making power. The state’s practice of equanimity and respect for the consent of the governed was centrally important to the African-American engagement with the American social contract. The presumption of the individual choice of the governed, the fetishization of the atomic individual, the question of the priority of the individual, and their rights above the collective body, these all challenge the communal identity, practices, and perspectives of the African community in America. Can social contract theory, as currently articulated, address the self-­ awareness of a community, necessarily bonded in a collective identity, whose belief in the individual’s freedom, advancement, and opportunity were judged by the larger group’s ability to achieve these measures? What does social contract theory, in the context of US political life, mean for groups committed to a belief in what political scientist Michael Dawson has named “shared destiny” (2013, 135). The white majority’s racialized perception of the African-American community has resulted in the erection and maintenance of a barrier to meaningful African-American citizenship. The next chapter of this work will investigate how limits on citizenship can come to mean not having citizenship at all.

References Aristotle. 1992. The Politics. London: Penguin Books. Berry, Mary Frances. 1995. Black Resistance, White Law: A History of Constitutional Racism in America. New York: Penguin Books. Botts, Tina. 2020. For Equals Only: Race, Equality and the Equal Protection Clause. Lanham: Lexington Books. Brown, Else Barkley. 1997. To Catch a Vision of Freedom: Reconstructing Southern Black Women’s Political History, 1865–1880. In African American Women and the Vote: 1837–1965, ed. Ann D.  Gordon, 66–99. Amherst: University of Massachusetts Press.

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Dawson, Michael. 2013. Blacks In and Out of the Left. Cambridge, MA: Harvard University Press. Du Bois, W.E.B. 1992. Black Reconstruction in America, 1860–1880. New York: Atheneum. Frankfort, Henri. 1948. Ancient Egyptian Religion. New York: Harper and Row. Gardiner, Alan. Trans. 1923. “The Eloquent Peasant.” The Journal of Egyptian Archaeology 9 (1/2): 5–25. Gordon, Lewis. 2017. Cities and Citizenship. Kettering Review 34 (1): 43. Hulliung, Mark. 2007. The Social Contract in America: From the Revolution to the Present Age. Lawrence: University Press of Kansas. Jefferson, Thomas. 2018. Notes on the State of Virginia. Written by Thomas Jefferson. Illustrated With a map, Including the States of Virginia, Maryland, Delaware and Pennsylvania. Scoot’s Valley, CA, CreateSpace Independent Publishing Platform. Karenga, Maulana, Ed. and Trans. 1984. Selections from The Husia: Sacred Wisdom of Ancient Egypt. Los Angeles: University of Sankore Press. Mills, Charles. 1997. The Racial Contract. Ithaca: Cornell University Press. ———. 2003. White Supremacy as a Social-Political System. In White Out: The Continuing Significance of Race, ed. Ashley Doane and Eduardo Bonilla-Silva. New York: Routledge. ———. 2017. Black Rights/White Wrongs: The Critique of Racial Liberalism. New York: Oxford University Press. Mulgan, R.G. 1979. Lycophron and Greek Theories of Social Contract. Journal of the History of Ideas 40 (1): 121–129. Plato. 1984. Great Dialogues of Plato. Trans. W.H.D.  Rouse. New  York: New American Library. Riley, Patrick. 1982. Will and Political Legitimacy: A Critical Exposition of Social Contract Theory in Hobbes, Locke, Rousseau, Kant, and Hegel. Cambridge, MA: Harvard University Press. Ritchie, D. G. 1891. Contributions to the History of Social Contract Theory. Political Science Quarterly 6 (4): 656. Robinson, Cedric. 2000. Black Marxism: The Making of the Black Radical Tradition. Chapel Hill: University of North Carolina Press. Rosenfeld, Michel. 1985. Contract and Justice: The Relation Between Classical Contract Law and Social Contract Theory. Iowa Law Review 70: 769. Scott, James. 2017. Against the Grain: A Deep History of the Earliest States. New Haven: Yale University Press. Wynter, Sylvia. 1994. No Humans Involved: An Open Letter to My Colleagues. Forum N.H.I.: Knowledge for the 21st Century 1 (1): 42–73. ———. 2003. Unsettling the Coloniality of Being/Truth/Power/Freedom: Towards the Human, After Man, Its Overrepresentation-An Argument. The New Centennial Review 3 (3): 257–337.

CHAPTER 3

Crises of Legitimacy and Social Nullification Theory

I. It is a long-held article of Modern political faith that if a government does not address a population’s concerns, that population possesses the inherent right to change its government or its relationship to that government. This right particularly exists for those recognized as considered to be human, whose rights are seen as legitimate. A government’s neglect in providing services to its population, or to otherwise meet the terms of the relationship, represents an express infringement on the population’s inherent right to life and liberty. The historical sympathy toward oppressed populations—deprived of those rights—who reside outside US borders has coexisted with the denial of that same sympathy toward marginalized domestic populations. There is, in short, a deep concern for justice for particular groups and a disregard for the equal application of the principles of justice, equality, and the sanctity of human freedom to African-Americans. This discrepancy did not go unnoticed by African-descended observers, as evidenced by David Walker’s lament: They tell us of the Israelites in Egypt, the Helots in Sparta, and of the Roman Slaves … have they not made provisions for the Greeks, and Irish? Nations who have never done the least thing for them, while we, who have

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enriched their country with our blood and tears, and are in more miseries than any other people under heaven. … Some perhaps may deny, by saying, that they never thought or said that we were not men. But do not actions speak louder than words? (2003, 24)

By articulating the blatant discrepancy between the attitudes white American elites hold toward oppressed non-Black groups on the one hand and African-Americans on the other hand—despite the latter’s contribution to the nation and formal status as citizens—Walker critiques the particular racism of white America toward its citizenry of African descent. As is the case of other rights and privileges that inhere in affirmed citizenship, the recognition of the right of self-determination was not extended to African-descended communities. An essential characteristic of Modern political identity is the assertion of a humanity, which is imbued with inherent self-determination and presupposes a right to declare allegiance to a government or deny a state’s power over it. The recognition of the legitimacy of European nationalist movements, and the contrast of that recognition with the disregard shown toward the conditions, abolitionist struggles, and aspirations of African peoples in the United States and globally, contributed to the tension between mainstream US political discourse and the social-political project of asserting the self-aware humanity of African peoples. The refusal to recognize African possession of collective and individual claims to personhood—with its attendant privileges and opportunities— touches on a central element of social contract theory: the role and conditions of citizenship through consent. Do the conditions of social contract theory apply to enslaved populations? If certain elements are necessary to the contract—free will, consent, obligation, and accountability—then, arguably, the answer is no. Justice Taney’s majority decision in Scott v. Sanford 60 US 393 (1857) suggests as much: In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people [emphasis mine], nor intended to be included in the general words used in that memorable instrument. … They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect

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[emphasis mine]; and that the negro might justly and lawfully be reduced to slavery for his benefit.

Chief Justice Taney’s comments reflect the reality of US socio-political culture of the time, as Charles Mills suggests, “Taney is right … the Framers were convinced of the objective moral truth, as part of natural law, of black inequality, so that excluding them from ‘all men’ was principled rather than pragmatic” (1999, 121). This position must be considered in light of a different question (and the response to it) proffered by theologian Howard Thurman: What must be the attitude toward the rulers, the controllers of political, social, and economic life? This is the question of the Negro in American life. … For the most part, the Negro must assume that there are no basic citizenship rights, no fundamental protection, guaranteed to them by the state, because their status as citizens has never been clearly defined. (1996, 12)

Thurman’s assertion serves as an entry point for our exploration of the work of those thinkers who have recognized African-Americans’ lack of legal status, wrestled with the results of living with the nebulous status of second-class citizenship, and formulated theoretical and political responses to these conditions. In Citizenship and Slavery, Bill Lawson directly engages with the question of citizenship and African-American life by analyzing writings that question the validity of the process through which African-American citizenship was gained, in effect interrogating the grounds of citizenship for African-Americans. Lawson does so by interrogating the points of, activist for African-American reparations, Robert Brock’s argument:

1. blacks came to America by force; 2. their presence here is not voluntary; 3. their consent has never been sought; 4. blacks were even made citizens without their consent; 5. by not being allowed to choose, blacks were denied the basic rights that would make them real citizens and 6. failure to get their consent undermines any claim to citizenship; 7. therefore, blacks are not citizens. (1992, 57)

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According to Lawson, Brock’s argument tracks with that of Harvey Nathanson, who argues that at the heart of American social contract theory is the Lockean requirement of consent which validates the terms for the acceptance of citizenship. Consent, or rather the ability to make a choice that results in a consensual relationship, is the indicator of the freedom and the manifestation of the agency that, within Modern political theory, are deemed inherent to every human life. Africans’ original moment of contact with North American enslavement is a negation of a consensual ground for citizenship. Nathanson concurring with and extending Brock’s argument argues that the lack of the franchise, referendum, plebiscite, poll, or survey—of any avenue of formal access by which the community might pursue or enact citizenship—delegitimates the notion of African-American citizenship. The timing of the Thirteenth Amendment—a measure crafted during the Civil War—informs, but does not determine, the majoritarian dynamic. Nathanson argues that the paternalism displayed by the US government toward freed people forfeited the inclusion of the freed people from the decision-making process surrounding citizenship. This paternalistic approach was, paradoxically, based on slavery’s erosion of African people’s control over their lives: Since, the logic went, Africans (Negroes) were unable to self-govern the decision to be made citizens must be made for them. Lawson explains the implications of Nathanson’s argument: “First, freed blacks are not genuine citizens; and second, they are still in a state of nature … blacks must look to themselves for protection of their inalienable rights because the government cannot be counted upon to honor its part of the bargain [the social contract]” (Ibid., 61). Brock and Nathanson present a provocative argument. However, it is problematic, to say the least, that their assertion of the non-existence of African-American citizenship functions to delegitimize any claims the historic and contemporary African-American community may have on the US state. African-American citizenship is a valid institutional phenomenon and indicates a legitimate formal relationship with the state. The passage of the Thirteenth, Fourteenth, and Fifteenth Constitutional Amendments, which enshrined rights and protections for the newly freed people, demonstrates the United States’ commitment—however partial or contingent—to African-American citizenship and its recognition of African-American personhood, however incomplete or unfulfilled that recognition may be. The Amendments provide what Marshall describes as civic and political, if not social, citizenship. The violation of these

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amendments invalidates the state’s commitment to that status, but it need not invalidate the status itself. We can, and must, distinguish between the state’s historical unwillingness to meet its obligation toward its African-American citizenry—notoriously evident in Slave Statutes, Black Codes, and Jim Crow—and thus to fully recognize African-American citizenship, and the formal denial of African-American political, civic, and social personhood. While the United States has been guilty of the former, it did, in fact, remedy the latter with the passage of Thirteenth, Fourteenth, and Fifteenth Amendments. It is also true that this original formal commitment, in the form of the amendments to the Constitution, has remained vulnerable to violation and abrogation through the failure and or refusal of either party to meet their obligations. In short, the relationship remains vulnerable to nullification. Nullification as Theory Nullification refers to the act of dispelling, disregarding, and dismissing the legitimate authority of those who govern and of the institutions through which they govern. The term has been handed down to us as a part of the vocabulary of the movement against strong central government in the early US republic. “Nullification Theory” is the legal theory which holds that states have the right to disavow the authority of the US government in cases where one or more states deem its laws unconstitutional. In this conception, states are members of the compact which created the federal government and these states can therefore serve as arbiters of the legitimacy of federal laws to which they are subject. The idea of the compact government, based on voluntary association by independent entities, was formulated in the original organizing document of the United States, the Articles of Confederation (1783–1789). These articles and their laws underscored the sovereignty of the states and the limited powers of the central government. The Articles of Confederation possessed a number of weaknesses and were soon superseded by the Constitution of the United States of America (1789–present). Among these weaknesses were Congress’ inability to levy taxes, an individual state’s power to levy tariffs on goods from other states, the absence of a federal judicial branch, the absence of an executive branch to enforce laws passed by Congress, and the inability to raise a national military force. The weaknesses of the Articles were addressed by the ratification of the Constitution, a document which, most notably, establishes a strong

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central government. Yet voices advocating for the sovereignty of the states and for a weak central government persisted in the early republic and beyond; they continue to do so at the time of writing. Nullification, also termed “Interposition,” was propagated by early republic theorists, Thomas Jefferson, James Madison, and John Taylor. James Madison writes, On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to cooperate with the officers of the Union1

The theory of Interposition served as an argument for the right to enact a check on centralized government in its tendencies toward creating tyrannical laws. For Jefferson, the idea was a means to protect the rights of the individual and provide a mechanism for that protection: he states, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, null and void” (Brisbane 1956, 13). Robert Brisbane explains Jefferson’s thinking thus: “Jefferson thought that the states might act positively to nullify such laws or simply refuse to obey them” (Ibid.). The execution of a nullifying act could be achieved through the passage of laws denying the enactment of the “unauthoritative” laws or by the overt refusal to obey the law on the part of the political entity— in short, by rebellion. As later propounded by nineteenth-century South Carolina Senator John Calhoun, the theory became ingrained in the antebellum South’s pro-slavery political and theoretical arsenal. In his work Disquisition on Government, Calhoun argued that states have the right to secede from the Union in cases where the federal government acted in violation of its constitutional limits. Calhoun argues, without irony, that governments possess a natural tendency, since they are a reflection of the will of the majority population, to transgress their boundaries and attempt to accumulate more power over the minority. It is a great mistake to suppose, that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for 1  “The Influence of the State and Federal Governments Compared (No. 46).” The Debates on the Constitution: The Federalist Papers. New York: Library of America, 1993 220.

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whose protection they are inserted with the means of enforcing their ­observance will be sufficient to prevent the majority and dominant party from abusing its powers. Being the party in possession of the government, they will, from the same constitution of man which makes government necessary to protect society, and opposed to the restrictions intended to limit them. (1851, 21–22)

Calhoun centers his argument on the need to protect the minority party from the predations of the majority party. This argument was later revived in the midst of the post-World War II Civil Rights Movement. Southern politicians, in the face of the growing involvement of the legislative and executive branches in the question of limiting or ending segregation, utilized these concepts to defend segregation and to fend off the “intrusions” of federal law into the social policies of former confederate states. These were the officials whose lips were, as Martin Luther King Jr. phrased it, “dripping with the words of interposition and nullification” (1991, 219). Although Calhoun’s political commitments were reactionary and pro-­ slavery, and those of mid-twentieth-century Southern politicians were not so distant from his, the idea that there are tools for disrupting the illegitimate domination of a majority remains important and powerful for populations who are, or perceive themselves to be, marginalized. Thus, despite the fact that the idea of nullification was employed in the attempt to maintain racial segregation in the states of the old Confederacy, the present work finds the articulation of resistance to “illegitimate” governance to be productive. Despite its problematic history, the concept of nullification can enable the establishment of limits to the state’s exercise of power. The idea of nullification can therefore also facilitate the creation of a position from which to critique and resist abuses of that power. Nullification theory serves as a pillar of a minority’s power to resist the imposition of majority will.2 It can be employed by those who seek to limit African-American freedom, but it can also be employed by African-­ Americans in service of freedom. Legal theorist Paul Butler analyzes a contemporary application of nullification theory in the practice of jury nullification (1995). Jury nullification occurs when, in a jury trial, jurors judge a defendant innocent because they feel that the law, process, or mechanism of prosecution is 2  The secession of Southern states and the initiation of the US Civil War (1861–1865) is, according to Hoyle, the very definition of the “ill” use of nullification logic.

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unconstitutional, inhumane, unjust, or unfair. It is a practice recognized from the early history of “trial by jury,” one first recognized in the Bushell Case (1670), a landmark case in English common law, and later employed in the trial of colonial American printer Peter Zenger (1734).3 Butler argues that there is a critical note to jury nullification when the jury is composed of members of a racialized minority. The conditions of the racial-social-economic and legal relationships between African-Americans and the white majority infuse the ground that can inform the civic practice of African-Americans serving on a jury. Imagine a country in which more than half of the young male citizens are under the supervision of the criminal justice system, either awaiting trial, in prison, or on probation or parole. Imagine a country in which two-thirds of the men can anticipate being arrested before they reach age thirty. Imagine a country in which there are more young men in prison than in college. Now give the citizens of the country the key to the prison. (1995, 690–691)

Butler’s imagined country, which in fact resembles the contemporary United States in so far as the statistics describe the African-American male relationship to the US criminal justice system, highlights the dramatic difference in the circumstances experienced by African-Americans in comparison to white males. This profound difference of experience becomes the foundation upon which a theory of nullification can stand. Nullification theory recognizes and asserts the limits in the presumption of universalist democratic practices. It is therefore an expression of an alternative view of civil institutions and practices, one which applies a different logic to the 3  In Bushell’s Case (1670), Quaker defendants William Penn and William Mead were prosecuted for unlawful assembly and disturbance of the peace. Encouraged by Penn to question the legality of the law they were charged with breaking, the jury found the defendants not guilty. The judge levied a fine against the jurors for handing in a decision that was in violation of the evidence and in violation of the judge’s instruction that Mead and Penn’s admission of committing the acts proved their guilt. Juror Bushell refused to pay the fine when examined by the Court of Common Pleas, “which held that jurors in criminal cases could not be punished for voting to acquit, even when the trial judge believed that the verdict contradicted the evidence.” In the case of Peter Zenger, the defendant was prosecuted by the British government for seditious libel. Zenger’s lawyer told the jury to ignore the judge’s statement that Zenger’s statements were libelous: “‘because the jury had the right beyond all dispute to determine both the law and the facts’… the lawyer then echoed the language of Bushell’s Case arguing the jurors had ‘to see their eyes, to hear with their own ears, and to make use of their own consciences and understandings, in judging of the lives, liberties or estates of their fellow subjects’ … the jury acquitted Zenger” (Butler 1995, 701–702).

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rationality of institutional procedure. Butler quoting El Hajj Malik el Shabazz (Malcolm X)’s formulation encapsulates this alternative logic: “What is logical to the oppressor isn’t logical to the oppressed. What is reason to the oppressor, isn’t reason to the oppressed” (1995, 677). In this interpretation, the norms, institutions, processes, and policies of the democratic order exclude and reject those who lack power to direct civic institutions. The limits and contradictions of the policies and practices of the state are revealed in its marginalization of the minority. This is evident even in the most foundational practice of democratic participation, voting. In taking on the issue of voter dilution, the reduction of the collective impact of an electoral community, Lani Guinier identifies and analyzes the marginalizing effect of electoral representation on African-Americans. In response to the violations of African-American voting rights which the Voting Rights Act of 1965 (VRA) sought to address, the support for the geographic intensification of the African-American vote became a central issue in the affirmation of an African-American electoral presence. The VRA recognizes that the power of African-American voters is weakened when the power of those voters is diluted within “large multi member jurisdictions characterized by racial bloc voting of geographic concentrations of black voters who would otherwise be a majority in a single-member district” (Guinier 1991, 1424). Guinier is concerned with the fact that despite the guarantees of African-American (equal) access contained in the VRA, African-American voter empowerment and influence are lacking. The creation of majority-Black districts or, as Guinier puts it, the “districting solution” is indeed a necessary solution because “if white voters consistently refuse to vote for Black [sic] candidates, they devalue the right of Black voters to be represented where Blacks [sic] are an electoral minority. […] The unfairness [of Black vote dilution] stems from the fact that in a winner take all county or city wide contest, the majority can determine the outcome of every election” (1429). Guinier argues that the local and state voting system should be reorganized into “interest districts”: at-large aggregate voting systems that allow for the concentration of weighted votes. In this way, voting blocs, based on the weighting of interests, are able to avoid the dilution of Black voting power. Guinier recognizes the failure of white-voting conclaves to support Black political candidates, thus diminishing the representative power of African-Americans by leaving them dependent on the voting preferences of white Americans.

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Our discussion engages with Guinier’s notion of “majoritarianism/ democratic domination”4—the diminishment of African-American electoral influence, whether through at large, winner-take-all elections dominated by white majorities or through the marginalization of African-American elected officials in state legislative houses due to their minority status. As Guinier argues, the implacability of “democratic domination” makes minority populations vulnerable to the electoral drives of the majority of citizens/voters, thereby distorting the efficacy and legitimacy of “one man, one vote.” For the African-American, at the root of the most fundamental practice of civic identity lies an obstacle to the full practice of the privileges of citizenship. It is necessary to look beyond the obvious role of voting in political life in order to examine the meaning of voting more fully. Of the various mechanisms of the citizen’s political expression, the vote is the most immediate and direct means of participating in governance. The selection of candidates based on their commitment to serving the needs of the citizen (voter) and the process of electoral campaigning in which candidates articulate policies that address constituents’ concerns together empower the citizen and give them voice and influence in institutions of power. To mute, suppress, limit, or destroy the right and ability to vote is to make the citizen a non-entity; through the imposition of social-civic silence and political impotence, the citizen is rendered non-existent. The disruption of the relationship between the state and the citizen has hitherto been examined in the strictly political realm, within discussions of rights, the role of the law, and the act of voting. Our discussion now moves to the ways in which policy affects the relationship between the citizen, the community of citizens, and the legitimacy of the governing body. In “Urban Decay, Austerity, and the Rule of Law,” Brent T. White, Simone M. Sepe, and Saura Masconale argue that a government’s ability to provide public goods in the form of infrastructure determines the citizenry’s relationship to and perception of the rule of law (2014). The authors focus their attention on the deterioration of infrastructure in Detroit, MI, as an example of “where an urban infrastructure is crumbling and distressed municipal governments struggle to provide basic public services.”5 The authors understand infrastructural investment to be an exemplary component of the social contract wherein “individuals voluntarily unite 4 5

 Tyranny of the Majority. New York: Free Press 1994.  Ibid., p. 4.

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into civil society and agree to be subject to the society’s laws in exchange for social order.”6 The author’s notion of contract is more than simply the exchange of force for order between the citizenry and the government. The authors’ notion of social order is not a part of an abstract account of liberty or freedom but, instead, is implicated in the government’s practical responsibilities toward the citizenry: the government is tasked “with coordinating the production of certain essential goods and services, such as urban infrastructure (emphasis mine)” (Ibid.). Although it could be argued that the lack of infrastructure and of infrastructural investment in rural areas is an equally compelling example of civic-social breakage, the demographic context must be taken into account: approximately 80–85% of US residents live in urban areas.7 The conditions of urban populations in their preponderance serve as a better indicator than rural populations of the government’s relationship to its citizenry. Since infrastructure plays a vital role in the daily health and well-being of the citizenry, it also informs the relationship of one citizen to another. White and his coauthors argue that the government, charged with the task of coordinating the distribution of the public goods by means of regular tax-funded investments in urban infrastructure, signals to citizens that their fellows are also contributing to society, thereby encouraging a sense of shared civic commitment. The converse, the lack of investment in essential public goods, reveals, especially to underserved citizens, the absence of a shared commitment. The comparatively poor provision of public goods, among them healthcare, education, and infrastructure, to African-American communities reflects the disparate levels of commitment among the citizenry and the failure of the government to compensate for disparities of both commitment and means. For White et al., these distinctions lead to a legitimacy crisis for the government as disaffected citizens lose trust in the rule of law and seek to address their needs and concerns by extralegal means. For Modern social contractarians, the danger that individuals will choose to circumvent the rule of law—that they will “cease to voluntarily abide by the rules” (White et  al. 2014, 11)—threatens to break the  Ibid., p. 5.  United State Census. 2010. “2010 Urban Area FAQs.” https://www.census.gov/ programs-­surveys/geography/about/faq/2010-urban-area-faq.html#par_textimage_2, 21.01.2021. 6 7

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pactum unionis, the horizontal cooperation amongst citizens, which gives legitimacy to the pactum subjectionis, the vertical dimension of social interaction, wherein the government possesses the coercive power to enforce and or impose the rule of law. In the context of a society organized through a colonial/settler racial hierarchy, two points arise. First, an inconsistently shared commitment on the part of segments among the citizenry becomes evident in the deterioration of, and unequal distribution of, public goods: the dominant group awards itself the goods and services that are not invested into the subjugated communities. The loss of shared commitment reveals more than simply that one group within a community is shirking its obligation to the pactum unionis. It also becomes apparent that the government is systematically exploiting the social and political vulnerabilities of a subjugated group and governing only on behalf of the dominant group. This situation not only signifies a disruption of the dynamic of the social contract, it also means that the governing body has become the instrument through which the majority population exploits the minority population. If we return to T.H. Marshall’s formulation of citizenship, what is not in doubt is the political citizenship of African-Americans, but what this highlights is the gap between Marshall’s ideas of political citizenship and social citizenship as they can be applied to African-American civil existence. Political citizenship consists of rights that are obtained from political reforms. This citizenship, in Cohen’s analysis of Marshall’s formulation, emanates from “Civil citizenship” which “came first and consolidated the rule of law and equality before the law. Its rights are those ‘necessary to individual freedom—liberty of the person, freedom of thought, speech and faith, the right to own property and to conclude valid contracts and the right to justice’” (Cohen 2010, 83). “Social Citizenship encompasses a ‘whole range’ of rights, says Marshall, from ‘a modicum of welfare and security to the right to share to the full in the social heritage and live the life of a civilized (sic) being according to the standards prevailing in society’” (ibid.). The institutions of the United States have not given this level of recognition to the African-American community; this lack is a central element of the disjuncture between the ideal and the reality of citizenship for African-Americans. Second, the erosion of the rule of law concerns White and his coauthors. They caution that due to the government’s crisis of legitimacy among its citizens, it will overly rely on the pactum subjectionis. They argue that the erosion of the rule of law is more than an unintended

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consequence of the erosion of governmental investment in public goods and services. Rather, it should be understood as a necessary aspect of the intentional process of fraying the social contract: an employment of the government’s coercive powers in order to silence, marginalize, or regulate those who resist the government’s nullification of the social contract.

II. Social Nullification Our discussion has brought us to a plateau, one supported by key elements found in nullification theories. We can now understand nullification functioning in four broad ways. First nullification can serve as an instrument of challenge to governmental overreach when the state suppresses minority populations. Nullification can thus be employed to protect the rights of those populations. Second, nullification is a mechanism by which Guinier’s “majoritarian/democratic domination” formulation can be arrested because nullification can systematically undermine a majority group’s electoral effectiveness/power/voice. In the electoral context, the district-based intensification/concentration of a racial community diminishes, in fact nullifies, the effect of voter diffusion and majoritarian electoral concentration. Third, nullification constitutes a means of critiquing governmental systems and institutions that are unfair, unjust, or inhumane in their treatment of minority (subject) populations. Fourth and finally, nullification serves as a lens through which to acknowledge the systemic disparities in the provision of public policies and resources to distinct civil communities. The recognition of nullification can therefore provoke and create new systems, methods, and policies regarding public resource distribution. These elements in their functions as tools of political preservation and empowerment, here, are woven together into the broader civil-political concept of social nullification. Social nullification is a community’s intentional severing, through redefinition or challenge, of the social-political relationship between itself and its governing body/system. A community may sever the relationship in response to the unjust imposition of governmental or institutional force, unfair and inhumane systemic practices of said government targeting the community, the suppression of electoral power through majoritarian domination, or the recognition of a governing body’s failure to invest equally in the public good and health of said community.

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Chapter 2 of this book discussed the inherent contradictions, inconsistencies, and failings of the application of the status of citizenship, as it is established in the social contract model, to African-descended peoples in the United States. Social nullification is a way of naming the theories and activism that have addressed, challenged, and sought to transform the failings of US social contractualism as applied to African-descended peoples. Social nullification encapsulates, articulates, and recognizes those avenues of theory and action that have argued that the institutions and policies of the United States, as they relate to African-descended peoples, are inherently deficient in the fulfillment of their obligations to these communities. These deficiencies demand a re-ordering and redefinition of the fundamental relationship between the state and African-descended citizens. Moreover, this work argues that in light of the inherent and historical pervasiveness of these failures, African-American theorists and activists have espoused social nullification, in varied iterations, as necessary to the realization of full and equal participation within a free society. Social nullification, as a form of engagement with governmental bodies and as a body of political theorizing, constitutes a reclamation of the agency of subject communities that have been denied by the governmental bodies. It is an assertion of an inherent right (power) to self-determination that transcends the limits of a “rights”-granting political system and may have an ambivalent relationship to the various natural right or pre-social right-­ granting beliefs. Derrick Darby asserts that a system of social recognition is a stronger means for rights-granting than the idea of “natural” rights; that is, Darby critiques the inherentist position regarding rights. Articulations of social nullification may rely upon various tendrils of inherentist or natural rights claims through the inherent freedom to accept or reject government authority, yet they may also cast social recognition as the vehicle for its critique of a suppressive system and the basis for its re-­ evaluative stance, in social nullification theory’s acknowledgment of a government’s failure to grant recognition and its denial of recognition of government authority. The tradition of African-American thought/activism surrounding the establishment of fair and just social conditions may rely upon inherentist and natural rights claims based in metaphysical or ideological beliefs. However, the confrontation with “social recognition” granted rights drives the transformation of the elements of the relationship between Black citizens and white state. In a sense, it is the heart of “social nullification.” “If combating oppression and subordination has historically been

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used to justify embracing natural or pre-social moral rights, then the same general reconsiderations also justify eschewing belief in such rights” (74–75).8 As a theoretical framework, social nullification asserts the inherent power of subject populations to examine, reassess, reframe, and reorganize the conditions, assumptions, expectations, and responsibilities that they, as citizens, have to the state and that the state has to them as citizens. Social nullification reinstates the primary element of the social contract myth, the consensual and transactional nature of the relationship between citizen and government. In the context of Afri-US social-political conditions, Jacob T. Levy’s critique of the conflation of social contractarianism and constitutionalism challenges the argument that African-American citizenship is built into the US Constitution, exists within the normative parameters of citizenship as it exists for white Americans, and provides insight into the convergences and divergences between Constitutions and pre-­ Constitution forms of social organization and relations (social contractarian practices). Levy argues, “Something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals. Constitutions are enacted in ongoing societies … with pre existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores” (192). The point is that the historical conditions that inform the Afri-US social and constitutional relationship to the US government have circumscribed the capacity for African-Americans to inform the nature of said relationship, in large part due to the historical conditions of the United States’ transition to constitutional government and of the African-­American transition into citizenship. This specific set of conditions created a fairly unique but not exclusive situation,9 and the contemporary indicators of the fault lines in that situation encourage a rethinking of the terms of the formal, legally encoded relationship between the Afri-US  Race, Rights and Recognition (2015).  By unique but not exclusive, I point toward the particularities of the historic and contemporary circumstances of First Nations (indigenous) peoples in the United States. Their pre-­ existence and maintenance of polities prior to the arrival of Europeans initiate parallel questions of their relationship to US constitutional order and the possibilities of resolving resulting conflicts. Jacob T. Levy outlines the paradoxes and possibilities of resolving these challenges in “Indigenous Self-Government.” Nomos 45, Secession and Self Determination (2003): 119–135. 8 9

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c­ ommunity and the governing institutions of the United States. That is to say, we must rethink citizenship. On the basis of US constitutionalism, the US government’s passage of the Thirteenth, Fourteenth, and Fifteenth Amendments was able to address the vestiges of its pre-constitutional practices—such as chattel slavery, dismissal of African personhood, and social-political marginalization of African-descended peoples—that existed within the framework of the English colonies and were wrapped into the formal founding of the state. Yet, those amendments failed to eliminate the vestigial consciousness of these practices. Hence the society saw the rise of Black Codes, Jim Crow segregation, white supremacist terrorism, systemic disparities between whites and African-Americans, and the failure of the state to deliver social goods equally to all segments of the population. In the next chapter, we will explore the materiality of African-American citizenship, the conditions of social existence for the African-American community, against the background of the conditions of white America. By examining crucial areas of African-American social experience, the state’s performance of its obligations to the African-American population can be seen in bold relief. El Hajj Malik El Shabazz (Malcolm X) in blistering form highlights this performance: We suffer political oppression, economic exploitation and social degradation. … The government has failed us. You can’t deny that. Any time you’re living in the 20th century, 1964, and you walking around here singing ‘We Shall Overcome,’ the government has failed you. The government itself has failed us. And once we see that all of these other sources to which we’ve turned have failed, we stop turning to them and turn to ourselves.10

Our examination of the indices of that performance will expose the extent to which the state has (not) honored its commitment to the citizenship of African-Americans. Finally, we will consider these indices as the basis of an argument for social nullification.

10  Malcolm X (El Hajj Malik el Shabazz), “The Ballot or the Bullet,” American Radio Works: Say It Plain Say It Loud: A Century of Great African American Speeches. https:// americanradioworks.publicradio.org/features/blackspeech/mx.html. Downloaded January 26, 2021.

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References Brisbane, Robert. 1956. Interposition: Theory and Fact. Phylon 17 (1 (1st Quarter)): 12–16. Butler, Paul. 1995. Racially Based Jury Nullification: Black Power in the Criminal Justice System. The Yale Law Review 105 (3): 677–725. Calhoun, John C. 1851. Disquisition on Government. In The Works of John C. Calhoun, Vol. 1, ed. Richard K. Cralle. Columbia: The General Assembly of the State of South Carolina. Cohen, Mitchell. 2010. T.H. Marshall’s ‘Citizenship and Social Class. Dissent 57 (4): 81–85. Darby, Derrick. 2015. Rights, Race, and Recognition. Cambridge: Cambridge University Press. El Shabazz, El Hajj Malik (Malcolm X). 1994. The Ballot or the Bullet. In Malcolm X Speaks: Selected Speeches and Statements, ed. George Breitman. New  York: Grove Press. Guinier, Lani. 1991. No Two Seats: The Elusive Quest for Political Equality. Virginia Law Review 77 (8): 1413–1514. King, Martin Luther, Jr. 1991. I Have a Dream. In A Testament of Hope: The Essential Writings of Martin Luther King, Jr, ed. Clayborne Carson. New York: HarperCollins. Lawson, Bill. 1992. Between Slavery and Freedom. Bloomington/Indianapolis: Indiana University Press. Levy, Jacob T. 2009. Not so Novus an Ordu: Constitutions Without Social Contracts. Political Theory 37 (2): 191–217. Madison, James. 1993. The Influence of the State and Federal Governments Compared, (No. 46). In The Debates on the Constitution: The Federalist Papers. New York: Library of America. Mills, Charles. 1999. Whose Fourth of July? In Frederick Douglass: A Critical Reader, ed. Bill L.E. Lawson and Frank M. Kirkland. Malden: Blackwell. Thurman, Howard. 1996. Jesus and the Disinherited. Boston, Massachusetts: Beacon Press. Walker, David. 2003. David Walker’s Appeal in Four Articles; Together with a Preamble, to the Coloured Citizens of the World, but in Particular and Very Expressly to Those of the United States of America. In Let Nobody Turn Us Around: Voices of Resistance, Reform and Renewal, an African American Anthology, ed. Manning Marable and Leith Mullings. Lanham: Rowman and Littlefield. White, Brent T., Simone M.  Sepe, and Saura Masconale. 2014. Urban Decay, Austerity, and the Rule of Law. Emory Law Journal 64 (1): 1–70.

CHAPTER 4

The Severed Bond: Policy and the Materiality of the Failing State

I.   Citizens in the Material World The charting of the material conditions of African-American social life— the qualitative assessment and quantitative tracking of the life outcomes of communities within African-America—has a long tradition of research. Arguably, such study can be asserted as the basis of the Modern foundation of American sociology (Morris 2015). Prominent sociologist and activist W.E.B. Du Bois’ approach to the sociology of Negro (né African-­ American) life was one that merged with his larger political agenda. Early in his career, Du Bois was an adherent of “uplift” ideology, the belief that it was the obligation of privileged members of the African-American community to utilize their skills and resources to aid in the development (political, economic, psychological, social, and cultural) of the majority of African-Americans. States Aldon Morris, “As a young man, Du Bois decided to distinguish himself as a man of letters and a master of scholarship … He aspited to liberate the oppressed black race by becoming an ambassador in the kingdom of culture, where his scholarship could be used as a weapon for racial liberation” (Ibid., 15). Du Bois’ innovations within American sociology, including his interventions on questions of race and urban conditions, and the implementation of quantitative analysis, contributed to the understanding of the micro conditions and macro circumstances of Black life. Initiating his © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. F. Peterson, Beyond Civil Disobedience, African American Philosophy and the African Diaspora, https://doi.org/10.1007/978-3-030-77554-4_4

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research only two generations removed from American chattel slavery, and in the midst of Jim Crow segregation, Du Bois’ goal was to conduct a systematic examination of the material circumstances of Negro communities. He saw this examination as part of the larger investigation into how Negros were faring in the light of their recent freedom, and as part of the effort to understand the development of the Negro community, in light of its relationship to the dominant society. From Du Bois’ perspective, the effects of slavery and of post-Civil War white supremacist institutions and policies on the communal capabilities of African-Americans were the condition to be overcome. The inheritance of slavery and present-day white supremacist institutions, policies, and practices were the hindrances to the full realization of the humanity and civil possibilities of Black people. The effects of enslavement upon the African (-American) community were responsible for the gaps in their communal and individual development. Influenced by the German historical school of economics, and being “quintessentially sociological” in his approach, Du Bois came to believe that “social reality was the product of culture, customs, historical processes, institutions, and human agency” (Morris 2015, 20). Breaking from the standard precepts of mainstream American sociology, Du Bois rejected the idea that first principles and universal laws governed the motion of human societies. Du Bois also rejected the eugenics-influenced bent of burgeoning American sociology, which employed inherent racial stereotypes to African-American communities to explain their social conditions. Mainstream US sociological analysis lacked an understanding of the Negro’s approach to post-enslavement life. The promise of freedom for enslaved Africans in the United States was shaped by the conditions of slavery, as Thomas Holt explains. Slavery meant subordination to the physical coercion and personal dominion of an arbitrary master, freedom meant submission onto to the impersonal forces of the market place and to the rational and uniform constraints of law. Slavery meant involuntary labor for the master’s benefit; freedom meant voluntary contracts determined by mutual consent, which theoretically should guarantee that one received the value of one’s labor. Slavery meant little, if any, legal protection of property, person, or family; freedom meant equal protection under law. (1982, 286)

If bondage meant the suppression of individual agency, the denial of familial relations, the lack of pay for labor, the inability to freely move from

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location to location, the abrogation of spiritual expression, lack of protection under the law, as well as disregard for the body of the enslaved, denial of the humanity of the enslaved and of the panoply of rights, privileges, and expectations attached to citizenship, then freedom was easily defined as the opposite of these conditions. Material deprivation and civil negation were the most definitive indicators of the condition of bondage. The opportunity for individual and communal material development, civic agency, and social attainment that negated the imprint of bondage would determine the success or failure of citizenship as the embodiment of the promises, policies, and mechanics of American political society. “For Du Bois, slavery [emphasis mine] had produced illiteracy and ignorance among the Black masses,” but these were not qualities inherent to Blacks as a racial group: “they [the qualities] were products of social development and existed in all racial groups at a similar level of social development” (Morris 2015, 31). Du Bois’ utilization of a quantitative methodological approach in his formulation of a sociology of race is key to understanding his innovations within American sociology. For this work’s purposes, materiality, the imprint of quantitative data, is employed as a frame by which to gauge the legitimacy of the contractarian relationship between African-Americans and the majority institutions and population of the United States. Employing a quantitative approach, Du Bois demonstrated “that racial hierarchies rested on edifices of power, discrimination and entrenched oppression” (Ibid., 35). Du Bois assumed that a group’s communal development and material progress indicated a community’s agency in its development and signaled the existing opportunities for that development within the group’s larger social circumstance. Du Bois surmised the ability or inability of the Negro to acculturate, matriculate, develop, grow, and succeed in their transition to a fully vested citizen of American society meant was not simplistically an indicator of the success or failings of Negro character, nor, moreover, did Negro success indicate the presence of equality, freedom, and opportunity for the Negro in American civilization. This work affirms that by studying material indicators, activists/scholars were able to evaluate Black experience of civic participation in crucial arenas: balanced governance (the even-handed application of policies), the equal distribution of and access to resources (maintenance of infrastructure and support for community-directed institutions), access to mechanisms of governance (representation in executive, judicial, and legislative arenas), and the uninhibited practice of democratic

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representation (fair access to and exercise of the franchise). These indicators thereby demonstrated the degree to which the American polis honored its commitment to recognizing the equal status before the law of its African-American residents. I assert that unlike the rights claims that pervade social contract theory, with their questionable bases (variously, metaphysical, mythological, or moral), rights claims—in conjunction with rights critiques—rest upon the materiality of African-American life, as it is shaped and informed by the webbing of laws and policies enacted by the American state and its representatives. As citizenship is not a theory but instead a lived condition, rights are not matters of belief but rather of lived experience. More than 150 years have passed since the end of the system of US chattel slavery, yet the conditions, policies, and disparities that undermine the possibilities of African-American civic and social life have not fundamentally changed, a fact which suggests that the relationship between African-Americans and US hegemonic institutions/populations is intractably unequal. These circumstances appear as features of the system, rather than as “bugs” within it. Their persistence reveals the seeming impossibility of the attainment of empowered, fully realized African-American citizenship. Quantitative measures function as a framework in which to understand the source of the persistently diminished condition of African-American life relative to white life: “The results that can be traced directly to public policy [are] … profound and long lasting.”1 The fault lies not in their (African-Americans’) stars, nor in African-Americans themselves, but in the structures of American society.

II.   Criminal Justice ‘As of 2007, two-thirds of the general population, including 71 percent of whites and even 53 percent of black Americans, believe that black Americans who have not gotten ahead in life are mainly responsible for their own situation.’ This belief is incorrect [italics mine], and a rules based analysis illuminates how and why: our rules and institutions are rarely color-blind, and even when policy makers intend on race neutral results, policies are refracted through historical institutions, current rules, and societal norms, resulting in disparate outcomes for black Americans. (Flynn 2017, 2) 1  Katznelson, Ira. When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America. W.W.  Norton and Company: New  York, (2005), p. 163.

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To properly examine the disparities in social conditions vis-à-vis African-­ Americans and white Americans, it will be necessary to focus on distinct, yet overlapping, areas of policy and practice and to analyze the effects over time of the legislation enacted upon the African-American community. The resulting generation of quantitative information represents a credible distillation of the effects of these policies and practices on the African-­ American community. Several areas of civil organization, by virtue of being subject to governmental policies and to the influence of regulation, partisan politics, and popular input, concretize the relationship between the state and the affected populations. This chapter will examine the distinctive history of three areas—criminal justice, housing, and medical care—and consider how an investigation of these areas can indicate the US government’s recognition of, and investment in, African-American civic life. These three areas represent fundamental aspects of lived experience within civic life: criminal justice denotes the relationship of the citizen to fundamental issues of law and order; housing is representative of the individual’s freedom of movement and expression, and implicates the integrity of private property, a concept central to US citizenship and civic development; and the provision of healthcare stands as a recognition of the governing apparatus’ regard for the personhood of each citizen. One of the bitter ironies of the African-descended American’s transition from slavery to freedom, or as wags have put it, “from freedom to slavery,”2 is that the law central to the birth of that freedom would contain the seed of a new type of enslavement.3 In The New Jim Crow: Mass Incarceration in the Age of Color Blindness (2012), Michelle Alexander stakes a daring position in the discussion of how the criminal justice system underdeveloped4 in African-American communities. The question of what to do with four-million newly liberated African-Americans is undergirded by the real question of how do we control four millions Negroes? The first section of the Thirteenth Amendment to the US Constitution 2  This serves as a bitterly ironic play on historian John Hope Franklin’s classic history of African-American life, From Slavery to Freedom: A History of African Americans 2010. 3  This issue is dramatically explored in the documentary, 13th (2016), directed by Ava Duvernay. 4  My use of “underdevelop[ment]” builds upon the work of historians Walter Rodney and Manning Marable which describes the exploitative practices inherent in imperial-colonial relationships. See, respectively, How Europe Underdeveloped Africa (2018) and How Capitalism Underdeveloped Black America (2015).

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­ rovided a tidy but uneasy answer: “Neither slavery nor involuntary servip tude, 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.” This section became the foundation for a post-Civil War regime of control which would facilitate the Southern states’ legal coercion and exploitation of African-Americans. The use of flimsy charges and allegations in order to incarcerate African-Americans was a means to maintain a steady flow of controllable labor5 for both public projects and private contracts. The prison lease system, wherein private entities could rent out prison labor for below market value, reproduced the core feature of chattel slavery: a forced and highly exploitable labor force. For the incarcerated, the threat of violence and, for the civilian population, the threat of the loss of freedom and of being subject to this regime of violence maintained the ubiquitous sense of uncertainty and terror endemic to the chattel slavery system. The recalibration of white supremacist ideology—through, notably, the construction of the stereotypes of African-American men to justify white anti-Black terror—fused with regimes of labor and population control. Together these were woven into the fabric of the penal policy to which the African-American community was subject and of which the white community was the beneficiary, as Peter Linebaugh writes, “The convict lease system was one segment of the tripartite reorganization of the Southern proletariat, the others being debt peonage and the labour contract system for agricultural labourers” (1995, 27). The leverage of incarceration, adjoined to the maintenance of the manual labor-based economies of the post-Civil War South, created an ever-present pool of labor through which capitalism and capital punishment bound themselves together in an alembic of economic exploitation, racial domination, and legalized violence. Vagrancy laws and other laws defining activities such as “mischief” and “insulting gestures” as crimes were enforced vigorously against blacks. The aggressive enforcement of these criminal offenses opened up an enormous market for convict leasing, in which prisoners were contracted out as labourers to the highest private bidder. (Alexander 2012, 31)

5  In A History of America in Ten Strikes (2018), historian Erik Loomis provides a stunning account of the role of Black labor in organizing against the South’s post-Civil War attempts to re-enslave freed people.

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Excessive fines were attached to random arrests, and there were pernicious laws and fickle legal authorities. Together these led many African-­ Americans to rack up huge debts to the courts. The necessity of paying off such debts resulted in prisoners being “sold as forced laborers to lumber camps, brickyards, railroads, farms, plantations, and dozens of corporations throughout the South” (Ibid.). This form of maintenance of strict regimes of economic exploitation, which simultaneously allowed for the restoration of the racial caste system that had been threatened by the Reconstruction, was central to the post-Reconstruction penal system and undermined the central purpose of the Thirteenth Amendment. In the Virginia Supreme Court decision Ruffin v. Commonwealth (1871), the court defined the effects of imprisonment, false or otherwise, on the nominal citizen. For a time, during his service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all of his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the State. He is civilter mortus [sic]; and his estate, if he has any, is administered like that of a dead man. (Ibid.)

This decision, aligned with the careful manipulation of laws in the old Confederate states, created a brutally efficient mechanism of permanent marginalization of African-Americans in civil life and of eradication of their newly gained rights and status as citizens. The insinuation of civiliter mortuus (civil death) into American penal policy would effectively erase the most fundamental elements of African-American citizenship. This civil death meant the alienation of a large proportion of the African-American population from political participation, the disruption of social units within African-American communities, and the undermining of African-­ American economic development through the loss of economic actors and the subversion of the Fourteenth Amendment’s equal protection clause for African-Americans. Tina Fernandes Botts explains to what degree the law to which the Amendment gave rise has failed to ensure anything like equality for African-Americans. [T]he Equal protection law that developed in the wake of the adoption of the Fourteenth Amendment was meant to protect racialized persons from the unequal treatment under law they faced after the end of slavery and the

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end of the Civil War, equal protection law currently fails to do this. Instead the most recent cases brought under the Equal Protection Clause have protected nonracialized persons from racial discrimination moreso than racialized persons. (2015, 25)

The reality of the oppressive nature of criminal justice policies and the pervasiveness of the prison industrial complex in the lives of Southern Black people became so oppressive as to become a regular referent in African-American popular culture and one that remains present today. From its regular appearance in the lives and songs of Blues musicians of the 1920s–1940s (Yurchenko 1995), through the legendary chain gang song, “Berta, Berta” in August Wilson’s play The Piano Lesson6 (1987), to the more recent songs of Hip Hop artists,7 imprisonment has remained part and parcel of Black historical experience and cultural consciousness. The policy of hyper-incarceration of African-Americans has so warped African-Americans’ perception of, and the reality of, their life chances that, in some communities, incarceration has been perceived as a “rite of 6  The lyrics, sung from the perspective of a prisoner at the notorious Parchman Farm prison in Sunflower County, Mississippi, warn his lover not to wait for him, and to marry well—to avoid marrying a “farming man,” but instead to marry a “railroad man.”

O Lord.. Berta.. Berta … O Lord gal oh-ah O Lord.. Berta.. Berta … O Lord gal well now Go ’head and marry. Don’t you wait on me, oh-ah Go ’head and marry. Don’t you wait on me, well now Might not want you when I..I go free oh-I Might not want you when I..I go free well now … O Lord gal oh-ah O Lord Berta Berta O Lord gal well now (Raise em up!) Raise them up higher. Let em drop on down oh-ah Raise them up higher. Let em drop on down well now Don’t know the difference when the sun go down oh-ah Don’t know the difference when the sun go down well now Berta in Meridian and she living at ease oh-ah Berta in Meridian and she living at ease well now I’m on old Parchman, got to work or leave oh-ah I’m on old Parchman, got to work or leave well now Oh-ah Berta Berta O Lord gal oh-ah Oh-ah Berta Berta O Lord gal well now (1990) 7  To cite a few examples: Hip Hop group Public Enemy’s “Black Steel in the Hour of Chaos” (1988) details a political prisoner’s escape attempt; Nas’ “One Love” (1994) takes the form of a letter to a friend in jail detailing events in the outside world, and Akon’s song “Locked Up” (2006) is a prisoner’s rumination on his experiences in jail.

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passage.” Throughout the twentieth, and into the twenty-first, century, this consciousness has been continuously fostered by the actions of local, state, and federal administrative and judicial actors. In many ways, imprisonment singularly defines how African-Americans understand themselves in relation to the state. By the late twentieth century, post-Jim Crow reforms in civil rights, voting rights, and criminal justice, as tied to attempts to break down discriminatory policies and institutionalized segregation, as they were perceived by white working-class people to affect their lives, led to a dramatic political backlash against the increased role of African-Americans in American life. Many in the white electorate perceived that [A] disproportionate share of the costs of integration and racial equality had been borne by lower- and lower middle class whites, who were suddenly forced to compete on equal terms with blacks for jobs and status who lived in neighborhoods adjoining black ghettos … white liberals who were pressing the legal claims of blacks and other minorities … [were] largely immune to the costs of implementing minority claims. (Alexander 2012, 46)

This paranoia surrounding the expanding empowerment of, and opportunities for, Blacks allowed conservatives to drive a wedge between working-­class white constituents and the Democratic Party. This fear was based implicitly on the loss of white racial privilege, and it facilitated the traditional Democratic Party base’s new support of the Republican party, as Andrea Flynn explains, “Social activism and disorder fueled the anxieties and resentments of working class whites, driving them to conservative politicians who were increasingly promising tough-on-crime measures” (2017, 117). This political shift reached its completion in 1980: the rise of the “Reagan Democrat” and the election of Ronald Reagan to the presidency coincided with the maturation of post-1960s deindustrialization in urban (predominantly African-American) areas. “In the early 1980s … inner city communities were suffering from economic collapse. The blue collar factory jobs that had been plentiful in urban areas in the 1950s and 1960s had suddenly disappeared” (Alexander 2012, 50). The effects of this economic devastation were exacerbated by an epidemic of crack abuse in urban areas. Framed as the “War on Drugs,”8 the intense policing in urban communities, which had begun under the Nixon administration’s  The term was coined by the Nixon Administration.

8

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“Law and Order” policies, intensified hugely, and calls for a maximalist approach to enforcing laws against (urban) drug use and distribution increased. Stereotypes of Black men as pathologically violent criminals pervaded public discourse. The suppression of the civil rights of alleged offenders and the disproportionate sentencing of Black people to prison terms were the consequence. This echoed the persecution of Black communities seen during the post-Reconstruction era. Much of the subversion of the rights of African-Americans has occurred through the exploitation of the civiliter mortuus element of the Thirteenth Amendment to the Constitution; the manipulation of criminal justice policy under the guise of the “War on Drugs”; and the fanning of flames of racial insecurity among working-class whites, by Republican and Democratic public officials alike, for political gain. In 1994, President Bill Clinton oversaw the passage of the “Violent Crime and Control and Law Enforcement Act,” “which put more cops on the streets, expanded the use of the death penalty, increased prison sentences, restricted educational opportunities for prisoners, and invested significantly in the expansion of the U.S. prison system” (Flynn 2017, 118). As an indicator of the bi-­ partisan paranoia surrounding Black crime of the time, the bill was written by then Democratic Senator, now President to Barack Obama, Joseph Biden (DE). The bill passed the House of Representatives, 235–195, with 46 Republicans in support and passed the Senate 95-4-1 Not Voting. Yet, another element—the gradual erosion of the protections of the Fourth Amendment to the Constitution by Supreme Court decisions—has also facilitated the state’s ongoing diminishment of the individual rights of African-Americans, its disdain for the boundaries of their somatic integrity, and the dismissal of their personhood at the hands of law enforcement. Over the course of several Supreme Court decisions, beginning with Florida v. Bostick (1991),9 the Court gradually limited the rights and 9  In Florida v. Bostick, the discovery of cocaine by the Broward County Sheriff’s Department during one of their regular drug sweeps of interstate transport was challenged as illegally procured for lack of “reasonable articulable suspicion.” Due to the consent of the defendant, Terrance Bostick, to the search, with knowledge of the cocaine on his person, the question stood: was the procurement of evidence during a random bus search, pursuant to the defendant’s consent, a violation of the Fourth Amendment’s protection against illegal search and seizure? By a vote of 6–3, the Court ruled Bostick’s encounter to be purely voluntary due to a “reasonable” person’s ability to terminate the encounter with the police and, more ominously, “the Court made clear its decision was to govern all future drug sweeps, no matter what the circumstances of the targeted individual” (Alexander 2012, 64).

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protections for citizens as guaranteed by the Fourth Amendment and expanded the state’s ability to aggressively search the body and possessions of the average citizen. The effectiveness of that 1991 decision depended upon a citizen’s ignorance of their rights in relation to the police and the average citizen’s reasonable trepidation and intimidation when dealing with the police. In Whren v. United States (1996), the discovery of cocaine in the possession of Michael Whren and James Brown during a traffic stop led the court to uphold that illicit substances discovered by police in non-related traffic stops, regardless of officer intent, do not violate the Fourth Amendment’s protections against “unreasonable search and seizure.” This decision transformed the most commonplace and innocuous interaction between the police and certain members of the public into a dramatic display of African-American insecurity and intensified African-American vulnerability before the vicissitudes of American state power. This decision also created and rationalized a mechanism of police disruption of African-­ American public life, and it stripped away the pretense that communities were policed equally regardless of race. Finally, the decision diminished the legal limit and protections against the policing of African-American lives. Policing was effectively returned to its original antebellum function as a mobile force for monitoring Black bodies.10 These incendiary court cases were merged with the social accelerant, “The Federal Violent Crime Control and Law Enforcement Act” also known as the 1994 Crime Bill. The cases of Florida v. Bostick and Whren v. United States seeped into the already decivilizing measures imposed upon African-Americans by the criminal justice system. By sanction of the Supreme Court, these cases weave the denial of African-American civil recognition into Constitutional credibility. Both cases call into question the inviolability of African-­American bodies and the presumption of innocence afforded all citizens. The racialized framework of the War on Drugs expresses, in combination with the two cases, two conclusions: Black bodies are  Hip Hop legend KRS-ONE expressed in his song “Sound of da Police”:

10

The overseer rode around the plantation The officer is off patrolling all the nation The overseer could stop you what you’re doing The officer will pull you over just when he’s pursuing. (1993)

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inherently marked as suspect by the police, and any claim to sovereignty over person or possessions has no grounding before the law, most notably for African-Americans.

III.  Housing The ability to move one’s body to make independent decisions about where one chooses to reside and to exert control over the conditions of one’s existence is arguably an elemental aspect of Modern identity. Such capacities signal an historical break from the socially, somatically, and geographically circumscribed condition of the slave and the serf. They also offer a dramatic illustration of the inherent freedom over the body that Modern political discourse has theorized. Specifically, the quest for freedom of movement and agency over the body is central to African-American civic and social identity. This freedom to move, control, and make determinations over one’s body and its place(-s) in the world is the antithesis of the condition of Western chattel slavery where the objectification of the enslaved’s body and the ultimate legal control over it were in the hands of the enslaver. The laws governing Black mobility during the antebellum period in effect turned the entire South into an open-air prison for the freed person and the enslaved. The African-American presence was marked by the imprint of race on their physical appearance and their mobility was policed through the rigid system of passes which facilitated movement between areas as determined by the enslaver. Later, during the Reconstruction era, the synonymy of civil identity, mobility, and freedom was evinced in the creation of all-Black towns across the South. Freed people’s movement away from plantations and small farms, and their creation of autonomous communities testifies to these citizens’ awareness of the civic and social institutions necessary for communal development and to their desire to experience citizenship and security on the same terms as their former enslavers. This new power of mobility encouraged many freed persons to escape the land, culture, and memories of the South by migrating to the Midwestern and Western states. Ta-Nehisi Coates’ essay, “A Case for Reparations” (2017), brought broad public—that is, white American—attention to a topic that had been at a simmering point of urgency within African-American circles for almost 20 years. Coates’ essay contributes to the juridical and moral response to the broad question of the systemic historical expropriation of value from Black labor and holdings, which Coates frames as a question about

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reparations. The essay examines the justification for reparations by looking at a specific local history, that of housing discrimination against Black people in the Chicago neighborhood of North Lawndale. In particular, Coates’ article explores the history of white supremacy’s rapacious subversion of African-American freedom from unfair treatment, subjugation under inferior status, and unequal application of the law to their lives. In short, the essay explores how practices of spatial11 and housing discrimination have served to deny Black people the protection of the Fifth, Thirteenth, and Fourteenth Amendments to the Constitution. In The Color of Law, Richard Rothstein demonstrates that “racially explicit government policies to segregate our metropolitan areas are not vestiges, were neither subtle nor intangible, and were sufficiently controlling to construct de jure segregation that is now with us in neighborhoods … [and] in schools” (2018, xiv). However, prior to the federal intervention into housing, local governments merged public sentiment and systemic machinations into a durable structure of housing discrimination and geographical erasure. White citizens’ response to the migration of Black populations from the South is a case study of the creative evolution of white supremacy in policy and practice. Local government support for, and encouragement of, anti-­ Black housing discrimination continued the spatial policing of African-­ American movement that had originated during the period of enslavement and laid the foundation for economic and social disparities between African-Americans and White Americans into the present day. Rather surprisingly, at the height of Jim Crow segregation, the Supreme Court ruled discrimination in residential housing on the basis of race to be unconstitutional. In Buchanan v. Warley (1917), the Court, applying the Fourteenth Amendment to the Constitution, upheld the right of an African-American to purchase property in a section of Louisville, Kentucky. The Court ruled not that the racialized zoning violated the purchaser’s right to equal protection under the law but instead that racialized zoning violated the right of the white property owner to sell property to whomever they choose. As in the vast majority of Fourteenth Amendment cases that the Court ruled on between 1870 and 1920, the Court chose to defend the rights of 11  By “spatial discrimination” I mean a discrimination that is broader than that which directly pertains only to housing. Spatial discrimination would include the development of policies that limit or exclude African-Americans from not only specific neighborhoods but also entire municipalities.

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business, property, and “freedom of contract,” instead of preserving equal protection under the law for all citizens. The case, though significant, exemplified in its exception a more powerful pattern of behaviors. Post-Reconstruction housing patterns were powerfully informed by the rising tides of national fear and loathing directed at the freed people. Although their numbers were small beyond the borders of Southern states, many Midwestern and Western municipalities took pains to police and limit the number of African-Americans in their cities. The rise of African-American middle-class institutions and the communal development that they fostered—the growth of schools, churches, civic organizations, and businesses—began to intersect with white community development. The white response was to systematically limit African-American movement. Anchored in an embrace of the stereotypes constructed about African-Americans by post-Civil War vindicationist writers and politicians, housing policy became an arm of white supremacist social, political, and economic domination. Stereotypes initiated in specific quarters of white communities eventually became part of a totalizing view among white citizens, as Jessica Trounstine explains, “Residential restrictions against people of color originated in middle-income neighborhoods, overtime low income groups, in direct proportion to their insecurities, [became] more vehement in their opposition to the entrance of colored families” (2018, 44). Rothstein elaborates on Trounstine’s account of historical racial prejudice in residential housing: “During this era many towns across the country adopted policies forbidding African Americans from residing or even from being within town borders after dark” (2018, 42). As a result, these all-white communities became known as “sundown towns.” Where these policies were not articulated explicitly in law, they nonetheless had an informal existence that was enforced by violence—by police intimidation and by mob rule. In order to formalize the “protection” of white families from Black neighbors, localities began to create zoning codes which expressly deterred African-Americans from purchasing or renting residences in “white” communities. In 1910 the Baltimore municipal administration passed zoning codes that prohibited African-Americans from purchasing homes on blocks where whites were in the majority and prohibit whites from purchasing where African-Americans were the majority. This policy was specifically intended to target those middle-class African-Americans who

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could afford to purchase in white communities12 (Rothstein 2018, 42). Soon, local governments such as “Atlanta, Birmingham, Dade County (Miami), Charleston, Dallas, Louisville, New Orleans, Oklahoma City, Richmond (Virginia), St. Louis and others … adopted similar zoning rules.”13 The Supreme Court ruling in Buchanan v. Warley (1917) had precipitated the local government creation of explicitly discriminatory housing zones. The creation of the “single family home” zoning code effectively addressed the tension between the Supreme Court’s “freedom of contract” interpretation of the Fourteenth Amendment and local white communities’ desire to create and maintain racially homogeneous communities. Authored by St. Louis Planning Commissioner Harland Bartholomew, the code was designed to skirt the anti-discriminatory ruling of Buchanan v. Warley by designating specific housing zones that, for the most part, were beyond the reach of the average African-American. Bartholomew’s task was to “categorize every structure in the city … and then to propose rules and maps to prevent future multifamily, commercial or industrial structures from impinging on single family neighborhoods” (Rothstein 2018, 48–49). The goal was to preserve the class character of middle-class residential areas by supporting social-class elitism that was not necessarily racially discriminatory. Yet, as Rothstein states, “there was enough open racial intent behind exclusionary zoning that it is integral [mine] to the story of de jure segregation” (Ibid., 48). In addition to itself occupying an integral place in the structures of de jure segregation, this maneuver would become a model of post-Civil Rights Act de facto discrimination: It is an early example of “color blind” public policy that effectively maintains the goals of anti-Black racism in the housing sector. To paraphrase Eduardo Silva-Bonilla, it was an example of housing racism without housing racists (2011). Though “color blind,” the zoning designation disproportionately affected African-Americans. Passed in 1919, two years after Buchanan v. Warley, the zoning code that Bartholomew crafted, while appearing to be in compliance with the Supreme Court decision, served to preserve residential racial segregation. By effectively limiting the housing options of 12  “Milton Dash, the lawyer who drafted Baltimore’s ordinance, explained. ‘Ordinarily the negro loves to gather to himself, for he is very gregarious and sociable in his nature. But those who have risen somewhat above their fellows appear to have an interior desire to leave them behind, to disown them, as were, and get as close to the company of white people as circumstances will permit them’” (Rothstein [2018], 44). 13  ibid.

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middle-class and aspiring middle-class African-Americans, it undermined the possibility of creating generational wealth based on property ownership among African-Americans, thereby exacerbating poverty within African-American communities and wealth disparities between white and Black communities. The public sector followed a different, but equally effective, path to maintaining housing discrimination. The crisis of global capitalism of the late 1920s to the late 1930s led to the direct involvement of local and federal government in the provision of many services, including housing. Federal public housing had existed prior to the Great Depression, as the federal government had provided housing to workers in the defense industry during World War I.  The first provision of housing for non-defense sector workers was a response to the collapse of the housing market and the increasing homelessness which the stock market crash of 1929 initiated. Peacetime federal government participation in the housing sector signaled a dramatic change in the relationship of the public sector to the private housing market. Yet federal housing policy and housing, like private and local government initiatives, were shaped by white supremacy. When early Depression-era private developers were reluctant to build housing for impoverished citizens, the federal government intervened to construct housing for the newly homeless. The earliest federal civilian housing projects were modeled after the housing created for federal works projects, during World War I (1914–1918): The housing projects were either racially segregated or refused residence to African-Americans altogether. Instead of challenging the racial segregation endemic to American society and increasingly enshrined in local policy, the federal government developed model community villages for white workers, while Black families were funneled into sub-standard edifices. Under the leadership of the Secretary of the Interior, Harold Ickes, in 1933, the newly formed Public Works Administration (PWA), set to the task of constructing public housing. As with many of the progressive programs of the New Deal, the construction of public housing was intended to benefit white working-class and poor citizens. Ickes, a political “liberal, provided access to African-Americans residents, and one-third of public housing constructed under the PWA housed them”. However, despite Ickes’ efforts, the federal government followed local housing policies and practices and adopted segregationist policies for federal developments. Segregation in the provision of public housing persisted from its Depression-era inception, through the World War II era, when housing

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shortages resulted from shortages of materials, and into the post-War era, when the federal government intervened to build housing for returning veterans. The government’s policies limited African-Americans’ access to new and improved housing stock and reinforced the suppressive housing policies at the local level. The federal government even went so far as to require localities that did not practice housing discrimination to segregate their public housing projects. Over time, these policies reinforced the social isolation and geographic and economic disadvantages suffered by African-Americans. After the war, increased housing financing opportunities were provided to white Americans, in the forms of Federal Housing Authority (FHA) loans and the GI Bill, but they were denied for African-­ Americans. The federal government, too, thereby inhibited Black home ownership and relegated Black citizens to increasingly underserved, over-­ policed, and decaying public and private housing. New Deal policies and institutions expanded the effects of racial deprivation in the private housing market as well. The FHA, created after the private sector failed to address the Depression-era housing crisis, established federally guaranteed bank mortgage insurance to encourage banks to provide home mortgages and guaranteed housing loans for those unable to secure loans through private financing channels. As a part of the application process, in order to be assured of the viability of the loan, the FHA conducted its own appraisal of the properties and created a loan qualification rating system, which was codified in its Underwriting Manual (1936). These appraisals rested firmly on the FHA’s “conviction that property values invariably declined if Africa American families lived [in proximity]” (Rothstein 2018, 86).14 The appraisals and ratings system encouraged, and even demanded, the practice of residential segregation, by building race into the criteria for mortgage approval. The white public embraced the new system because “whites feared that integration would jeopardize their single largest investment: the value of their home, as well as the quality of their neighborhoods” (Trounstine 2018, 31). On FHA municipal maps, neighborhoods were color coded to assign value and financial viability. These federal color codes (ratings) were instituted by private financial institutions and became the basis for public and private real estate assessment, underwriting, and insurance. The color “red” was used to flag those neighborhoods containing African-American residents and given the lowest ratings. This practice  Rothstein, p. 86.

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called “redlining,” along with “local control, and overt discrimination [were used] to make it very difficult, often impossible, for blacks to qualify for mortgages” (Katznelson 2005, 162). Among white residents, the preservation of white neighborhoods and property value was reinforced by exclusionary practices and tactics such as restrictive covenants, neighborhood associations, bribery, and outright racist intimidation and violence. The effects of these practices upon the African-American community go beyond the harms of “ghettoization,” social exclusion and stigmatization, impoverishment, and educational depletion. These policies aggravated the long-term economic deprivation suffered by the African-American community. If part of the logic of encouraging private home ownership was the generation of wealth through property ownership, then the systematic suppression of African-Americans’ entrance into the private housing market and the placement of limits on where Blacks could purchase houses undermined the accumulation of wealth within the African-American community. Given that zoning was viewed as a way to both increase property values and maintain exclusivity in the distribution of public goods … emphasis on the enhancement of property values became the dominant argument, [as] almost universally, it was believed that the wrong sorts of people residing, or even working, in an area could negatively impact property values. (Trounstine 2018, 78–79)

The virtual exclusion of African-Americans from property ownership and the devaluation of African-American-owned homes diminished African-American communal development. Lower property values lowered the assessment of property taxes which undermined the financial stability of local public schools. Moreover, the high concentration of African-Americans in tightly locked geographical units—due to economic gerrymandering and political segregation—reduced the African-American political voice. Because Black communities had, therefore, very little influence in municipal government, they had no power to affect the zoning laws that constrained their economic, educational, and political power. It was a perfect cycle that diminished civil recognition for African-American communities. The example of the federal government’s entrance into the public housing market powerfully demonstrates the intention to maintain the conditions of Black subordination in the area of housing. The maintenance of

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white prerogative and privilege, at the expense of Black equality and access to the full benefits of American civil life, is a central concern for public housing policy. African-Americans have suffered systemic deprivation in housing and thereby also suffered the diminishment of their lived experience of citizenship.

IV.  Healthcare Of all the forms of inequality, injustice in health is the most shocking and the most inhumane.15 911 is a joke!16

Self-possession, including the maintenance of authority over their own bodies, was central to the conception of the self that enslaved Africans developed. Legally possessed by the plantocracy, enslaved Africans lacked control over their limbs, organs, and biological processes. This lack was most evident in the laws developed to police Black bodies/movement, in the forms of punishment to which enslaved Africans and, equally germane to this discussion, the manipulation of Black bodies for “breeding” purposes and medical experimentation. The horrific case of Saat-Jee (“Sarah Bartmann”), kidnapped from Southern Africa and, for all intents and purposes, enslaved in Europe, placed on display in traveling “freak” shows across the continent, and later gynecologically “studied”—eventually her genitalia was placed on display in the Musée de l’Homme in Paris (Gilman 1985)—indicates how medical science and care has, when confronted with African and African-descended people, disregarded the universal principles of humanity that Modern political thinkers articulated. Humanity, it seems, was available only to those of European descent. In American socio-civic practice, the abuses of medical experimentation visited upon African (Diasporic) American populations ranged from experiments on Black women’s bodies during the period of slavery, to the

15  Harriet Washington, Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present (New York: Anchor Books, 2006) 2–3. 16  Flav, Flava, “911 Is A Joke!,” It Takes a Nation of Millions to Hold Us Back, CBS Records Inc. 1990. Track A3. Discogs.com, www.discogs.com/Public-Enemy-Fear-Of-A-BlackPlanet/release/78957

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horrific medical adventurism of the Tuskegee Experiment,17 and to the forced sterilization policies enacted by local and federal bodies throughout the twentieth century.18 These instances, and many more, display a disregard for African-American somatic integrity and a lack of recognition of the civil and human rights of the victims (Washington 2006). Moreover, beyond these specific cases of malfeasance, one can see the pervasive disregard for Black life in state- and national-level healthcare policy over the course of the twentieth century. Like other racial disparities discussed in this chapter, the origin of health disparities among African-Americans began in the post-Civil War period in the South. Karen Kruse Thomas states that In all regions of the United States, white American policy makers have historically neglected the health of minorities yet have used their high rates of death and disease to justify legalized segregation, immigration restrictions, and other overt forms of racial and ethnic discrimination. Yet southern health was exceptional because public health and political leaders together pursued policies that … sought to restrict federal oversight (2011, 9)

The ways in which African-American healthcare was attended to in the South19 set the framework for national civil and institutional approaches to the provision of healthcare to African-Americans. As was the case with federal intervention in housing, the federal government’s response to the Great Depression set the stage for policy initiatives. African-Americans 17  The Tuskegee Experiment was a multi-year study conducted by the US Department of Health in collaboration with Tuskegee University on the effects of untreated syphilis among members of the African-American male population of Tuskegee, Alabama, from 1932 to 1972. The subjects of the experiment were led to believe that they were receiving treatment, but were given placebos for the entirety of the study. The experiment was made public and ended due to the “whistle blowing” of San Francisco venereal disease investigator Peter Buxtun who brought the study to the attention of the Washington Star newspaper in 1972. 18  Washington, Harriet. [2006]. “The reproductive freedom of African AMericans has been assailed by discouraging the birth of ‘inferior’ black progeny and by curtailing the fertility of black mothers. Flawed eugenics judgements continue to shadow the lives of African AMericans, from the putative ‘crack babies’ who are now stigmatized teenagers to teen girls who are judged rather than counseled and protected from male predators.” New  York: Anchor Books [215]. 19  “America’s most medically underserved populations were heavily concentrated in the South, the home of 76.6 percent of African Americans and 54.1 percent of rural Americans in 1940” (Ibid., 30).

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residually benefitted from federal attention to the needs of white citizens. The effects of the policies of marginalization, exemplified by diminished African-American access to healthcare, health professionals, and resources, horrifically exacerbated existing health disparities. “Bad as conditions in the South may be for the general population …they are even worse for the Negro fourth of the population” (Ibid., 112). Local policy and decision-making—for example in housing policy and voting access—have remained a significant means of maintaining a social order in which whites have been, effectively, the only citizens. In such a context, the politics of federalism have taken on greater importance and influence. Unlike the previous examples of criminal justice and housing policy, healthcare policy was not argued or adjudicated in the US court system,20 but instead was a singular legislative and executive branch concern. Prior to the rise of employment-based health insurance, a result of the federal recognition of organized labor’s right to bargain,21 government bodies intermittently engaged with public health issues, whether in order to serve specific populations, such as veterans, or to address specific public health concerns, such as infectious disease outbreaks. With the passage of the Social Security Act of 1935, the government intervened into areas, such as housing, that had hitherto been exclusively the concern of the private sector. The demand for greater federal involvement in the provision of public medical care resulted in the exposure of regional and racial disparities in healthcare outcomes. This legislation, although it constituted a “historic assumption of responsibility of welfare by the federal government,” was also riven by “a series of compromises which weakened its universality,” spurred by the need to appease Southern officials, whose priorities included “the exclusion of African Americans” (Thomas 2011, 78). In short, the devil in the details of New Deal era public health 20  At least this was not the case until the passage of the Patient Protection and Affordable Care Act (2010), commonly referred to as “Obamacare.” In National Federation of Independent Business v. Sebelius (2012), the Supreme Court upheld Congress’ power to enact most provisions of that law, most notably the requirement that all citizens not covered under private plans or other public health insurance programs (such as Medicare) are mandated to enroll (and purchase individual health insurance) in the program. 21  The National Labor Relations Act of 1935 (The Wagner Act named after its sponsor Sen. Robert Wagner of NY) granted unions at construction sites and factories the right to bargain with management if the union were supported by a majority of workers. It initially excluded unions that did not admit Black workers that provision was removed after lobbying by the American Federation of Labor (The AFL).

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l­egislation was the desire of Southern legislators to maintain the benefits of expanded public health programming for whites and the denial of Black American access to these programs. Calls for universal healthcare insurance arose by the late 1930s, motivated principally by the desire to increase access to healthcare, reduce the disparities between working-class and upper-class white Americans, and improve the health of Americans whom, by World War II, were found, especially in the South, to be medically unfit for military service. Calls for universal healthcare culminated in the Wagner-Murray-Dingell Bill (1945).22 Just as they had in their attempts to maintain control over unemployment insurance (Social Security), relief for children and widows (Aid to Dependent Children), and old age insurance (Social Security), local and federal Southern politicians invoked the powers of federalism to more effectively manipulate resources in order to maintain the existing racial and economic order. “Southern states were especially stingy and capricious, both because bureaucrats discriminated against African Americans and because powerful officials actively discouraged welfare generosity in order to create more favorable labor conditions for economic elites” (Michener 2018, 36). Public debates among professional organizations at the time evidenced a recognition of the transformational role that a nationalized healthcare would play in US society, in particular in reducing racial inequalities. The National Medical Association (NMA), the primary professional organization for African-American physicians, though not uniform in its opinion,23 for the most part supported national healthcare as a means to address the effects of Jim Crow social policy on Black bodies. Recognizing the limits of Black participation in the private insurance market and the discriminatory, inconsistent, and inadequate access of Black people to state-based (public) healthcare, Black medical professionals argued that national healthcare would be of great financial benefit for Black participants as it “would give blacks purchasing power as health care 22  “The 1939 national health bill proposed by Senator Robert Wagner of New York and its successor, the Wagner-Murray-Dingell Bill (1945) and President Truman’s [later] call for a national health program (1947), represented the first plans for comprehensive national health reform, including provisions for national health coverage” (Thomas 2011, 3). 23  Unlike other civil rights organizations, including the National Association for the Advancement of Colored People, the National Urban League, the National Negro Congress, and the National Association of Colored Graduate Nurses, which supported the WagnerMurray-Dingell Bill, the NMA “did not formally endorse national health insurance until 1962” (Thomas 2011, 150).

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consumers and increase demand for medical professionals and hospitals in areas with concentrated black populations” (Thomas 2011, 152). The American Medical Association (AMA), the central professional organization for white physicians, argued vigorously against a national healthcare system, on the basis that it would constitute an infringement upon the “fee-for-service” system. Taking advantage of the post-World War II rise in anti-Communist hysteria, the AMA further characterized a national healthcare system as a dastardly Communist plot against the system of American enterprise. Smearing the idea of national healthcare as “socialism,” and viewing it as inherently inferior to for-profit healthcare provision, the AMA would lay the foundational critique of national healthcare proposals, the critique that would infect public debate well into the twenty-first century. Yet, the passage of the Medicare Act of 1965,24 which occurred despite the AMA’s failure to undermine a federal healthcare program,25 did not inhibit the federalism that permitted states to allocate healthcare and other benefits. In spite of federal intervention and the consequent establishment of a national healthcare insurance program, the powerful role of the states perpetuated the race-based disparities in medical access and treatment. Thus, despite the transformative effect of Medicare on the access of vulnerable classes of Americans (the elderly, the disabled, children, and the poor) to healthcare, the commitment to federalism means that American life, and especially African-American life, remains marbled through with peculiarly American contradictions. For blacks health inequalities are the cumulative result of both past and current discrimination through out U.S. culture. (1) economic discrimination, which rations health care on ability to pay; (2) insufficient hospitals and health care institutions and clinics; (3) insufficient physicians and other

24  Medicare ultimately would be the result of the combination of three distinct policy proposals, delineated as Part A) which provides insurance for hospitalization, Part B) which provides for doctor’s visits, Part C) which expands the Kerr-Mills proposal to establish the provision of matching federal funds for state low-income healthcare programs. Later, an optional Part D (2003) was added, which provides subsidies for a prescription drug benefit. 25  A 1957 proposal by Rep. Aime Forand (D-RI) which proposed 60 days of hospitalization coverage and 60 days of nursing home coverage for all citizens over 65, roused the AMA to generate an alternative measure, proposed by Senators Robert Kerr (D-OK) and Wilbur Mills (D-AK), which allocated matching federal funds to states which offered healthcare to low-income people.

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­ roviders; (4) racial discrimination in treatment and services; and (5) culturp ally incompetent care. (Randall 2009, 20–21)

Medicare, as a vehicle of public health programming, serves as a determinant and an indicator of the correlation between the health of the African-American community and public health policy. This is due to the greater reliance of African-Americans on public healthcare expenditures than their white counterparts.26 Despite the passage of Medicare, disparities in medical care treatment for African-Americans and whites persisted. The maintenance of hegemonic status privilege, and its effects on the care that African-American received, reflected, and continues to reflect, major racial disparities. After a brief burst of enthusiasm for civil rights following the passage of Medicare in 1965, the federal enforcement of equal treatment in hospitals weakened … [among] several reasons why this occurred … were the executive branch’s diminished commitment to civil right’s enforcement, the growing preoccupation with cutting costs and shrinking the federal bureaucracy, and organizational changes within the U.S.  Department of Health and Human Services. (Kunitz and Pesis-Katz 2005, 21)

Taking mortality rates as an indicator of the health disparities between African-Americans and whites, the author adds that “it has been known for some time that proportionately more African Americans than whites die of causes amenable to intervention by the healthcare system” (Ibid., 17). He continues that although we cannot know with certainty that racial differences in mortality do not result from circumstances that healthcare systems cannot impact, “nonetheless, such consistent differences lead to the conclusion that a great deal is indeed due to unequal access, much of which is built into patterns of segregation in both urban and rural America” 26  The erosion of African-American access to private insurance markets is a direct result of the diminished employment opportunities in urban areas that resulted from post-1960s era de-industrialization and white business flight from urban areas. Like an historic pincer movement, the Roosevelt administration’s inclusion of employer-based healthcare as a part of collective bargaining provided access to non-public-based healthcare for African-American organized labor. That inclusion simultaneously functioned to subvert calls for universal healthcare programs. The later loss of organized labor jobs, due to deindustrialization and the outsourcing of manufacturing jobs, combined with a lack of universal healthcare to further exacerbate the poor quality (in terms of access, affordability, and treatment) of African-­ American medical care.

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(21). Racial disparities in material conditions expose the degraded civil identity and positioning of African-Americans. “Persistent racial and ethnic disparities in the mix of services and the quality of care are likely to be beyond the reach of blunt policy such as the extension of public supplementary coverage to more Medicare beneficiaries” (Escarce and Kapur 2003, 270). Yet, the authors assert, such disparities cannot be overcome through the extension of resources to marginal populations but, instead, must be addressed through a transformation of the civil culture, including the very ontology of the medical care system. Under the normative conditions and in the normative processes of public health institutions, the attainment of equal treatment, and with it the reduction of disparities in health outcomes, remains highly improbable.

V.   Citizenship Isn’t an Idea, It’s a Practice The social-historical ground for the laws, practices, and policies that inform the lived reality of citizenship was informed by the environment of antebellum chattel slavery and the post-Reconstruction reconstitution of white nationalist structures, is the primordial mound upon which rests the material degradation of the quantitative and qualitative possibilities of African-American citizenship are rooted. As revolutionary (and disruptive) as the idea of Black citizenship was for the American public in the post-­ Civil War era, it was the practice of citizenship which motivated the anti-­ democratic movement against the freed people. The conditions of fully invested citizenship were a powerful indicator of the new role of African-­ American life in the consciousness of the republic. As opposed to the new habit of thinking of Africans as Americans, treating Africans as Americans, which would entail full access to rights, privileges, powers, and resources under law, was a far more threatening possibility for most white Americans. As offensive as the language of equality and citizenship may have been to white Americans, this language composed the crucial core of citizenship for Black Americans. As had the series of colonial laws that constructed racial and social identity, which were initiated in seventeenth-century Virginia,27 27  Historian Barbara J. Fields examines the construction of race through legal pronouncements and policy in seventeenth-century Virginia which established the model for race-based hierarchization and the negation of Black identity through law and policy. “Slavery, Race and Ideology in the United States of America.” New Left Review I/181, May/June 1990.

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post-­Reconstruction laws and policies sought to erode, and even eliminate, the real value and practice of US citizenship for African-Americans, and to thereby also negate the civic personality of the freed people. The legitimization of Blacks as citizens occurred with the passage of the Thirteenth Amendment of the Constitution; the conceptual and legal foundation of Black citizenship were enshrined in the Fourteenth Amendment. Together these two amendments appeared to guarantee Black citizenship; it seemed that nothing short of another Constitutional amendment could destroy their promises. Yet policy decisions in crucial areas—criminal justice, housing, and healthcare—produced the denigration of the materiality of Black social and civic existence. While Black citizenship had a formal existence, African-Americans were systematically denied the lived experience of rights which ought to derive from that citizenship: equal justice before the law, freedom of movement and expression, and the right of personal preservation. Derrick Darby states, “As in the case with possessing legal and other conventional rights for these circumstances to materialize, certain social practices having to do with social recognition, maintenance, and enforcement of certain ways of acting and being treated must obtain [italics mine].”28 Citizenship is a praxis: It is both concept and practice. Citizenship also expresses the relations between populations and the state, and it reflects the values and priorities of a society. Citizenship is an order of material relations that can be affected, manipulated, and determined through the racially discriminatory allocation of resources and by the creation of skewed policies that served to make institutions benefit white Americans, to the detriment of African-Americans. The refusal of US institutions to honor and make meaningful Black citizenship has resulted in the degradation of Black life. African-American citizens do not experience equal justice before the law and freedom of movement. Nor do they have the possibilities for social growth or the access to medical care that is necessary to communal and individual physical being. Despite the promises enshrined in Constitutional amendments, the United States has consistently undermined the possibility of Black freedom and development. The next chapter will explore the response of Black voices to this historical reality.

 Rights, Race, and Recognition (Cambridge, UK: Cambridge University Press, 2015), 84.

28

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References Alexander, Michelle. 2012. The New Jim Crow: Mass Incarceration in the Age of Color Blindness. New York: The New Press. Botts, Tina. 2015. For Equals Only: Race, Equality, and the Equal Protection Clause. Lanham, Maryland: Lexington Books. Coates, Ta-Nehisi. 2017. A Case for Reparations. In We Were Eight Years in Power. New York: One World Publishing. Darby, Derrick. 2015. Rights, Race, and Recognition. Cambridge: Cambridge University Press. Escarce, José J., and Kanika Kapur. 2003. Racial and Ethnic and Differences in Public and Private Medical Care Expenditures among Aged Medicare Beneficiaries. The Milbank Quarterly 81 (2): 249–275. Fields, Barbara Jeane. 1990. Slavery, Race and Ideology in the United States of America. New Left Review 181 (1): 95. Flav, Flava. 1990. 911 Is a Joke! In It Takes a Nation of Millions to Hold Us Back. CBS Records Inc. Track A3. Discogs.com, www.discogs.com/Public-EnemyFear-Of-A-Black-Planet/release/78957 Flynn, Andrea. 2017. The Hidden Rules of Race: Barriers to an Inclusive Economy. Cambridge: Cambridge University Press. Gilman, Sander. 1985. Black Bodies, White Bodies: Toward an Iconography of Female Sexuality in Late Nineteenth-Century Art, Medicine, and Literature. In Race, Writing, and Difference, Special Issue, Critical Inquiry 12 (1) (Autumn): 204–242. Holt, Thomas. 1982. ‘An Empire Over the Mind’: Emancipation, Race, and Ideology in the British West Indies and the American South. In Race, Region and Reconstruction: Essays in Honor of C.  Vann Woodward, ed. J.  Morgan Kouser and James M. McPherson. New York: Oxford University Press. Katznelson, Ira. 2005. When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America. New York: W.W. Norton. KRS-ONE. 1993. Sound of the Police. In The Return of the Boom Bap. Place, Jive Records. Kunitz, Stephen J., and Irena Pesis-Katz. 2005. Mortality of White Americans, African Americans, and Canadians: The Causes and Consequences for Health of Welfare State Institutions and Policies. The Milbank Quarterly 83 (1): 5–39. Linebaugh, Peter. 1995. Gruesome Gertie at the Buckle of the Bible Belt. New Left Review 209: 15. Loomis, Erik. 2018. A History of America in Ten Strikes. New York: The New Press. Michener, Jamila. 2018. Fragmented Democracy: Medicaid, Federalism, and Unequal Politics. Cambridge: Cambridge University Press. Morris, Aldon. 2015. The Scholar Denied: W.E.B. Du Bois and the Birth of Modern Sociology. Los Angeles: University of California Press. Randall, Vernellia R. 2009. Inequality in Health Care Is Killing African Americans. Human Rights 36 (4): 20.

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Rothstein, Richard. 2018. The Color of Law: A Forgotten History of How Our Government Segregated America. New York: LIverwright Publishing Corporation. Silva-Bonilla, Eduardo. 2011. Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America. New York: Rowman and Littlefield. Thomas, Karen Kruse. 2011. Deluxe Jim Crow: Civil Rights and American Health Policy, 1935–1954. Athens: The University of Georgia Press. Trounstine, Jessica. 2018. Segregation by Design: Local Politics and Inequality in American Cities. Cambridge: Cambridge University Press. Washington, H.A. 2006. Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present. New York: Double Day Broadway. Yurchenko, Henrietta. 1995. Blues Fallin’ Down Like Hail: Recorded Blues, 1920s–1940s. American Music 13 (4): 448.

CHAPTER 5

“To Establish a Different Order of Things”: Reconstructions of Afri-Civic Identity

I.   National Compacts and the Impossibilities of African-American Citizenship The racialization of aspects of US social-political life—or, to be blunt, the totality of US social-political existence—developed a specific dynamic for the lived experiences of African-Americans. This dynamic included the reduction of opportunities and life possibilities for African-American development, both individual and communal. The white nationalist foundations of mainstream US institutions have provoked a wide range of political responses from African-American theorists and activists across the entirety of US history. These responses have addressed two fundamental questions regarding Afri-US civic life: (1) What meaning does African humanity hold for America and (2) What is the relationship of the Negro né Black né African-­American, to the American republic? Since Africandescended Americans never doubted their own humanity, nor doubted the rights which were inherent to that humanity, these questions were directed toward white Americans and their institutions. The answers would inform their consideration and treatment of African populations in the United States; they would inform, as well, African-­ Americans’ views of the peoples and institutions of the United States. These two questions address the foundational stances of white nationalism: the denial of African humanity and the resistance to equal rights and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. F. Peterson, Beyond Civil Disobedience, African American Philosophy and the African Diaspora, https://doi.org/10.1007/978-3-030-77554-4_5

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justice for African and African-descended people’s stances which have long inhabited the soil of American life, like the roots of a century tree. At every juncture in the collective life of the nation, where the actualization of full citizenship for Black people was attempted, attempts to undermine the equal place of African-descended peoples can be discovered in overt and covert forms. Beginning in the colonial period, continuing in the antebellum and Reconstruction eras and through to the present moment, African-­ descended thinkers and activists have critiqued the conditional and racial character of American citizenship. They have formulated an array of theoretical and practical responses to that peculiar institution which has been African-American citizenship. In his work The Conditions, Elevation, Emigration, and Destiny of the Colored People of the United States (1852),1 one of these thinkers, Martin Delany—physician, soldier, abolitionist, and one of the most prominent voices of classical Black nationalism (Moses 1988)—examined the ambiguities of American citizenship. Delany argues from his experience as a recipient of the meager rights allotted to free Blacks in Northern states. (Such rights included limited property ownership, the vote [dependent on property ownership], and access to schools and education.) He argues that free Blacks should possess the rights of citizenship for free Blacks and locates that argument at the birth of the nation, in the earliest debates regarding the question of citizenship. In the Convention for the formation of the national compact, when the question arose on the priority of citizen’s rights, an honorable member[Mr. Jefferson] … arose and stated that for the purpose of henceforward settling a question of such moment to the American people, that nativity of birth, and the descendants of all who had borne arms in their country’s struggle for liberty, should always be entitled to all the rights and privileges to which an American citizen could be eligible … the question was at once settled, as regards American citizenship. (Delany (1852) 2015, 62)

Delany uses the universalist rhetoric employed in the founding moments of the US republic to establish the criteria of citizenship. His employment of the term compact signals the contractualist nature of the founders’ thinking. By appropriating the criteria for citizenship articulated by Thomas Jefferson, Delany creates an opening for the assertion of African claims to US social-civil rights. According to Jefferson, citizenship was 1

 Clifton, NJ: African Tree Press, 2015.

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earned by contributing to the welfare of the nation—it belonged to “the descendants of all who had borne arms in their country’s struggle for liberty”—or by birth on US soil—“nativity of birth.” Delany notes that race or ethnicity does not affect these two avenues to inclusion in the national body. Moreover, Delany established a clear articulation of the conditions of citizenship. A freeman in a political sense, is a citizen of unrestricted rights in the state, being eligible to the highest position known to their civil code. They are the preferred persons in whom may be invested the highest privileges, and to whom may be entrusted fundamentally the most sacred rights of the country; because, having made the greatest investments, they necessarily have the greatest interests; and consequently, are the safest hands into which to place so high and sacred a trust. Their interest being the country’s, and the interest of the country being the interest of the people; therefore, the protection of their own interests necessarily protects the interests of the whole country and people. It is this simple but great principle of primitive rights, that forms the fundamental basis of citizenship in all free countries, and it is upon this principle, that the rights of the colored man in this country to citizenship are fixed. (45–46)

Based on this platform, Delany articulates, chapter by chapter, instances of Negro Americans fulfilling the criteria for national inclusion. It is important to note that Delany is arguing on behalf of the free persons of color in the Northern states. Although he implicitly acknowledges the negation of civil existence enslavement entails, by any means necessary his work as a writer, abolitionist, and, later, an officer in the Union army testifies to his commitment to the liberation of the enslaved populations in the South and across the Western world. Delaney he also argues specifically for the fully vested rights and opportunities of citizenship for the free Blacks of the North. This exposes to what extent freedom was circumscribed for even the earliest emancipated African communities in the United States. Paradoxically, it is Delany’s focus on questions of civil inclusion for free communities of color that most profoundly illuminate the boundaries of citizenship. Delany’s treatise serves, at base, as a report on the social and civil circumstances of the free Black communities of the North, communities which have a formally untrammeled claim to the rights and privileges of citizenship. In highlighting the work and accomplishments of free persons of color across the northeastern and (present) Midwestern United States, he dramatically points to the government’s denial of Black civic

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personhood, in the face of the performance of the criteria for the status. Each of Delany’s chapters does not merely detail the accomplishments of free Blacks across the breadth of human enterprise and professions and does not merely prove that Black people should possess the full rights and privileges of citizenship, each chapter also exposes the inconsistencies of American political ideologies as they pertain to free Blacks. Moreover, Delany’s critique disproves attempts to regionalize the practice of Black erasure.2 In the chapter “National Disfranchisement of Colored People,” Delany, in his examination of what is generally known as The Fugitive Slave Act of 1850,3 fully articulates the national dimensions of the negation of African-American personhood. The Act, a sub-section of the Compromise of 1850, temporarily sublimated regional tensions over the spread of slavery into newly established states by allowing the territories of Kansas and Nebraska to determine their status—as enslaving or non-enslaving states—through a plebiscite. The Act further destabilized the already limited standing of free Blacks in non-slaveholding states, as their distance from enslavement was diminished by the existence and widespread abuse of the law.4 Over the course of ten sections, the Act, an amendment to the original “fugitive (from labor) slave law” of the Constitution established: (1) the creation of commissions fully empowered to “discharge all powers and duties conferred by this act”; (2) the granting to these commissions equal powers to the circuit and district court judges relevant to the removal of fugitives to the states from which they fled; (3) penalties to be levied upon local law enforcement, of up to $1000,5 if they fail to comply with their obligations under the law and if fugitives should escape, be held liable for that escape; (4) the empowerment of the aggrieved party (slave owner) to seek warrants in court and pursue the fugitive across state lines; and (5) the provision of 2  The final abolition of slavery by the state of New York in 1827, after a slow but steady relinquishing of the practice, becomes a point upon which to hang the “free state” versus “slave state” dichotomy, pervasive in the popular historical imagination. 3  The official title of the law is the 1850 Act to Amend, and Supplementary to the Act, Entitled, “An Act Respecting Fugitives from Justice, and Persons Escaping from the Service of Their Masters” (1793). 4  Northrup, Solomon. 12 Years a Slave: Solomon Northrup’s Odyssey This narrative most dramatically illustrates the dangers of the possible capture of free people who were then sold into slavery. 5  It must be underscored that $1000 in 1850 is equivalent to $33,073 in 2020. The (maximum) amount of the penalty suggests the intensity of the pressure to which local law officials were being subject to.

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direct payments to all citizens that provide support to those in pursuit of fugitives. Delany recognizes the veritable social death and absolute vulnerability that the Act imposed on free people of color and sees the way in which it produced their normative criminalization, through the creation of a punitive, compelling, and incentivized state of nation-wide surveillance and profiling of all Blacks. Recognizing the obvious conflict between his understanding of the Constitution and the Amendment to the Act, Delany points to the social and existential horror to which Blacks were subject. Moreover, he articulates the threat of annihilation that surrounded Black life and the dubious confidence in believing in American citizenship.6 Delany decries how the legislation engages in “corruption of blood” and degrades Black personhood by legally imposing on it an “inferiority of birth” (146). In short, Delany understands the Act to articulate and perform the thingification of Black people. By the provisions of this bill, the colored people of the United States are positively degraded beneath the level of the whites-are made liable at any time, in any place, and under all circumstances, to be arrested-and upon the claim of any white person, without the privilege, even of making a defence, sent into endless bondage. … We are slaves in the midst of freedom. (146–147)

Delany understands the Fugitive Slave Act of 1850 to articulate the majority’s belief in the dispensability of African-American life and sees the Act as proof of the dangerous malleability of the liberatory rhetoric of the US political system. Yet Delany’s analysis frames the Act as part of the necessary functioning of the nation: “We believe the existence of the Fugitive Slave Law is necessary to the continuance of the National Compact. This law is the foundation of the Compromise” (149). This National Compact is the formal compromise achieved between the elected representatives from the slave and non-slaveholding states that attempted to settle the question of how would slavery continue in the United States. The discontinuation of slavery was never in question. The extension of the slavocracy’s power to reclaim those Black people who resisted, by escaping

6  “When you believe in things/That you don’t understand/You will suffer” (Stevie Wonder, 1972).

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enslavement, was a response to that power’s demand for absolute legal control over Black bodies regardless of their location. It is useless to talk about our rights in individual states: we can have no rights here as citizens, not recognized in our common country; as the citizens of one state, are entitled to all rights and privileges of an American citizen in all states- the nullity of the one necessarily implying the nullity of the other. (150)

Because he recognizes that the established Constitutional principle and practice of reciprocity between the states is a vital part of sewing together these disparate political units, Delany sees the Slave Act as establishing a negation of Black lives across the country. Delany’s discussion of the “National Compact” also recognizes the ontic premise of the nation: that white nationalism is the tie that binds all sections of the nation, re-stitches all tears in the white national fabric, and re-forges all worn bonds of (white) national brotherhood. The universal acknowledgment of this fact is what truly unites the country. Thus Delany states in reference to the law, “Remove it and the consequences are easily determined” (149). To remove the law would be to limit the power of the slavocracy, thereby introducing cracks in the facade of white nationhood. The implication of removal would be that, indeed, there are things in US society that white men are deterred from doing to Black bodies. Such an assertion would establish a legally (universally) recognized regard for the personhood of African-Americans, a regard for their will and a regard for their rights as members of the society, as articulated in the founding legal documents. The assertion of the Constitutionally recognized personhood of Black people would make possible the forging of a new nation (the United States) and a new political structure (representative democracy). The assertion of Black personhood before law would constrain the abuses of whiteness as political category: enslavement, genocide, and erasure, in one single stroke of a pen. Presaging Chief Justice Taney’s proclamation from the Dred Scott case, in effect the Fugitive Slave Act of 1850, proclaims that Black bodies have no boundaries that a white man is bound to respect. As Delany writes, “We [Black people] are slaves … in the midst of freedom” (147). Delany’s outrage, though blanketed in a righteous roar of condemnation, is based on cool reasoning and unassailable logic.

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We speak logically and politically, leaving morality and right out of the question … arguing from premise to conclusion … we must abandon all vague theory, and look at facts as they really are … we are politically, not of them, but aliens to the laws and political privileges of the country. These are truths, -fixed facts, that quaint theory and exhausted moralising (sic), are impregnable to, and fall harmlessly before. (149)

There are three points to be considered here. The first is Delany’s grounding of his argument in the clear light of law and policy. White supremacist ideas are enforced through the crafting of the most powerful bedrocks of the society: legal statutes. Delany understood what I have termed the materiality of Black life, the determination of the credibility of the political position of Black life through its relation to law and the results of public policy. In brief, what was real for Delany were not the sweeping paeans to man’s inherent freedom proclaimed during Independence Day celebrations, nor the appeals to metaphysical principles of equality, but instead the legislative lines carved into the social-political body itself. It is these lines which would determine how Black life would be perceived by whites and lived by Black people. The second point is that Delany relies on what he sees as the irreducible evidence of a key premise: the totalizing exclusion of Black civic identity. He eschews optimistic projections or idealistic formulas, despite his attempt to read the Constitution in light of the ideals it expresses. What flaws may have previously marginalized Blacks from vested citizenship are no longer seen by Delany as simple hypocrisy or political maneuver on the part of white Americans. The Fugitive Slave Act of 1850 exposed the national commitment to white supremacy—a commitment that superseded and supersedes all state- and local-level pretenses to recognizing Black citizenship: The Fugitive Slave Act reflected the will of the true nation, the original intent that lay beneath the liberal rhetoric. And third, in the expression of that will, Delany comes upon another fact, the fact of whiteness, the white character of this nationalist republic. Delany argues that this nation is a political entity woven from the being and consciousness of its constituents, inseparable, indivisible, and irredeemable. Depend upon no promised protection of citizens in any quarter. Their own property and liberty [my italics] are jeopardised, and they will not sacrifice them for us. This we may not expect them to do … their country is their

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Heaven-their laws their scriptures-and the decrees of their magistrates obeyed as the fiat of God … a people capable of originating and sustaining such a law as this, are not people to whom we are willing to entrust our liberty at discretion. (148)

Delany reads American consciousness to be fully invested in the idea of the democratically derived law as the highest form of civic truth and the expression of the nation’s character. This process of crafting laws positions the United States apart from other nations and, for its citizens, this process makes their nation singular. They, the people, see themselves as the laws, and the laws, having been crafted by the people, are the people. Delany points this out to reaffirm the earnestness with which the Slave Act was passed and the level of commitment to its enactment that would be shown by its proponents. Delany articulates a perspective which would resurface in late twentieth-century Africana discourse as Afro-pessimism, the notion that an implacable anti-Blackness is definitive to the construction of white identity. Delany’s view that white collective consciousness cannot recognize the subjective being of Black people and that it thereby negates Black personhood constitutes, in my understanding, a precedent to Afro-­ pessimism. For Delany, the passage of the Act universalized the condition of slavery to all Black people, erasing the political and ontological distinctions between the conditions of “free” and enslaved Blacks. Black ontic, social, and civic being was thereby nullified and all conditions of Black life were reduced to the same level of objecthood. In contemporary Afro-­ pessimism, the construction of whiteness through the objectification of Black people is a defining characteristic of white consciousness. Whiteness constructs itself and acts in the world in the condition that “as such, they [Blacks] are not recognized as a social subject and are thus precluded from the category of ‘human’- inclusion in humanity being predicated on social recognition, volition, subjecthood, and the valuation of life” (Afro-­ Pessimism: An Introduction, 2017, 8). For Delany, the maintenance of the National Compact at the expense of the full implementation of the Social Contract is the clearest and most eloquent manifestation of that reality. Delany’s interrogation of the lack of equality in all possible manifestations, between whites and Blacks, is founded in his knowledge of racial disparities in material circumstances. However, Delaney’s application of materiality has deeper consequences for his idea of the possibilities of Black humanity. Delany articulates what Cornell West, in his typology of

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African-American political traditions, would later term a “weak assimilationist” position. The Afro-American assimilationist tradition considers Afro-American culture and personality to be pathological … this tradition also contains two types: strong assimilationism and weak assimilationism. Strong assimilationism makes ontological claims about Afro-American inferiority. Afro-­ Americans stand below other racial groups because of their genetic makeup, divine rejection or innate deficiency. Weak assimilationism makes sociological claims about Afro-American inferiority; Afro-Americans stand below other racial groups because of certain values, modes of behaviour, or defects acquired from their endurance of political oppression, social degradation and economic exploitation. (1999, 110)

Delany’s analysis, having established the intransigent nature of white domination over Black life, turns its gaze to the warped Black counterpoint to that intransigence. Continuing to eschew the theoretical claims on equality made by Black leaders, Delany logically unfolds his materially based assessment of Black status and citizenship. “There is such a thing as inferiority of things, and positions, at least society has made them so … there is no equality of persons, where there is no equality of attainments” (2015, 70). Delany’s conception of attainments is informed by the social and material development displayed by white nationalism. Cast your eyes about us and reflect … behold the trading shops -the manufactories … the operations of the various machinery … look at the railroad interlining every section … see the vessels in every direction … freighted with every commerce, merchandise and wealth of many nations … look as you pass through the cities, at the great and massive buildings … all standing as mighty living monuments, of the industry, enterprise, and intelligence of the white man. (Ibid.)

Delany argues that a fully activated communal agency manifests itself in the constructions of advanced social organization. Only consciousnesses that are fully aware of their capabilities, that exist within social-political circumstances that allow for those capabilities to develop, are able to realize such accomplishments. For Delany, whereas whites exist in a mutually reinforcing cycle of empowerment, agency, and achievement, Blacks in America exist within a cycle of suppression. In this cycle, Black personhood exists under constant negation, a condition which then reinforces a

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self-negating awareness, which in turn undermines the consciousness necessary to express that personhood in the construction of social structures that would further manifest and encourage the growth of said consciousness. In this problematic, Delany demonstrates a social antinomy in the inherent racial inequality of American society and its bias against African-­ descended people. For Delany, African people have failed to attain the standards that would bring about equality between whites and Blacks despite the aforementioned inherent inequalities. To break the irreconcilability of these positions, Delaney proposes a dramatic maneuver which he asserts in fiction as well as in fact. Delaney’s novel Blake or The Huts of America (2017) was first published as a serial, in installments over a three-year period, from 1859 to 1862, in the Anglo-African Magazine (1859–1860) and in a 74-chapter version in the Weekly Anglo-African (1861–1862), during what was yet another nadir in Black American life. The country was roiling in the wake of the violence that followed the attempt to expand slavery into the Plains states, the Dred Scott decision, John Brown’s failed attempt to spark a militant Black revolution in the upper South, and, later, the secession of the Confederacy from the “republic.” A free African-American future was very difficult to imagine. Delany’s novel, an early work of African-American speculative fiction, preceding the fantastic and socially critical writings of Du Bois’ Darkwater (1920)7 by over 60  years, constituted a creative response to the antinomy constituted by white nationalist suppression of Black agency and the Black communal (lack of) response to that of suppression. Blake or The Huts of America tells the story of Henry Blake, an escapee from a Mississippi plantation, who attempts to mount an insurrection against the Southern slavocracy and create an independent nation for free African peoples. In fictional form, the text expresses Delany’s foundational ideas about the civic/political status of African-Americans. One notable conversation takes place between the fictional federal court Judge Ballard, a born and bred Northeasterner and a group of Southern enslavers, at the beginning of the Judge’s visit to Natchez, Mississippi, for the purpose of 7  Two of the stories in this semi-autobiographical collection would today be considered to be speculative or science fiction: “Jesus Christ in Texas,” and “The Comet”. The former story imagines what would happen if Jesus of Nazareth appeared in [early 20th century] Texas as an African-American. The latter is a science-fiction narrative about a mysterious comet ending the majority of human life on Earth, leaving an African-American man and white woman to wander through a deserted New York City.

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buying and selling Africans. Although the Judge’s commitment to slavery has been vouched for by a business partner, the Southerners are concerned about the Judge’s ideas regarding the Fugitive Slave Act, “The North has given you a bad name Judge and it’s difficult to separate yourself now from it” (2017, 61). The Judge assures his listeners of his pro-slavery bona fides by reminding them of his “[l]arge interests (sic) and responsibility in the slave labor products of Cuba” (62). The Judge affirms his rhetorical position by calling attention to his professional position, in the judiciary: “to say nothing of my official records, which modesty should forbid my reference to” (Ibid.). With this scene and this character, Delany articulates the hegemonic nature of the institution of slavery: it is shown to be woven into the legal system of the United States and is personified in the figure of the Judge. When the Judge is lauded by a peer, the Judge’s commitment to suppressing the political identity of African-Americans and his earnest support of the Fugitive Slave Act becomes even more explicit. “The Colonel is at fault. He has lost sight of the fact that it was you [Judge Ballard], who seized the first runaway negro by the throat and held him by the compromise grasp, until we southern gentlemen sent for him and had him brought back” (Ibid.). Two important elements of Delany’s interpretation of the Act—as an effort to erode the fragile position of free persons of color—are evident in his novel. The first is that anti-Blackness is national in scope and consciousness. When a character facetiously comments that since he may be marrying a “Yankee girl,” it would be useful for him to learn of the Judge’s thoughts on human rights so as to better understand Yankee beliefs, the Judge responds, His jest concerning the Yankee girl, reminds me … that my lady is the daughter of a clergyman, brought up among the sand-hills of New England and I think I’ll not have to go from the present company, to prove her a good slave holder. So the major may see, we Northerners are not all alike. (62–63)

With the Judge’s reply, Delany asserts the emptiness of the belief that the North is uniformly more supportive of Black citizenship, that Northern white women are less capable of anti-Black practices, and that the Northern practice of Christianity is morally superior to the Southern.

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Delany’s second point is that there is no distinction between the status of the enslaved African of the South and that of the free people of color in the North. Judge Ballard soliloquizes, I hold as a just construction of the law, that not only has the slaveholder a right to reclaim his slave when and wherever found, but by its provision every free black in the country north and south, are liable to en-slavement by any white person. They are freemen by sufferance or slaves at large [emphasis mine], whom any white person may claim at discretion. It was a just decision of the Supreme Court—though I was in advance of it by action—that persons of African descent have no rights that white men are bound to respect. (63)

The Judge’s soliloquy displays the full range of white nationalist political theory on Black citizenship: extolling the Judge’s own prescience regarding the Fugitive Slave Act and, by offering an echo of Justice Taney’s infamous statement, lauding the Supreme Court’s decision in the Dred Scott case (1857). The irreconcilability of Black personhood with US citizenship is the problem around which the novel’s plot centers. Henry Blake’s driving motivation is the emancipation of African peoples from their domination by whites, by way of insurrection, emigration, and the establishment of an independent Black nation. As states the titular character, “You know my errand among you; you know my sentiments. I am for war—war upon the whites. ‘I come to bring deliverance to the captive and freedom to the bond.’ Your destiny is my destiny; the end of one will be the end of all” (291). Delany’s understanding of whites’ intentions and motivations reflects an appreciation of the brutal pragmatism of their position. In The Conditions, Elevation, Emigration, and Destiny of the Colored People of the United States Delany rejected idealistic, romantic, and essentialist explanations for African enslavement in North America, in favor of a recognition of the cold policy calculation of the peculiar institution. As to the cause [of African enslavement], whether on account of language, the color of eyes, hair, skin, or their origin of country—because all this is contrary to reason, a contradiction to common sense, at war with nature herself, and at variance with facts as they stare us in the face. … A fact worthy of observation, that wherever the objects of oppression are the most easily distinguished by any peculiar or general characteristics, these people are the more easily oppressed, because the war of oppression is the more

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easily waged against them. The policy [italics mine] of all those who proscribe any people, induces them to select as the objects of proscription, those who differed as much as possible, in some particulars, from themselves. This is to ensure the greater success, because it engenders the greater prejudice, or in other words, elicits less interest on the part of the oppressing class, in their favor. This fact is well understood in national conflicts. This is mere policy, nature having nothing to do with it we the colored people were selected as the subordinate class in this country, not on account of any actual or supposed inferiority on their part, but simply because, in view of all the circumstances of the case, they were the very best class that could be selected. (17)

Delaney clinically understands that white America is a calculated system, in which the “attainments” of whiteness serve to justify white superiority, which in turn justifies the maintenance of the institution of African enslavement, renders a transformation of the racial order from within that order impossible. Delany expresses his commitment to a diremptive resolution to the antinomy of Black humanity and American society through his protagonist’s commitment to an armed revolt among the enslaved, the goal of which is to establish independent Black political bodies. The connection between the political commitments of author and fictional character may reflect Delany’s political endeavors: his (alleged) connection to John Brown’s raid on an institution at Harper’s Ferry8 and his exploration of locations to relocate willing Black people to create a Black state.9 Blake’s heroic journey consists of a series of guerilla actions against the institution of slavery. Having escaped from his enslaver’s plantation in Mississippi, Blake sojourns across the states of the South visiting plantation after plantation, spreading his message, and planning for insurrection. Each encounter closely follows a formula: each location on Blake’s journey North includes a clandestine meeting in a “hut,” an elderly couple members of the local enslaved information network, the reception of Blake as a prayed for messianic figure, and the divine sanctioning of his liberatory mission. These encounters expose a network of autonomous Black 8  “He [Delaney] had met with John Brown, the radical abolitionist, in Chatham, Canada, where Brown revealed his plans, including those for Harper’s Ferry, and of his plans for a Provisional Constitution, which would allow for the rights of free Blacks and slaves. Later when Brown was caught, and tried, Delaney’s name and correspondence that he had with Brown came before the Senate investigation committee” (Malveaux 1973, 55). 9  The later chapters of Delaney’s Condition (17–21) contain his assessment of possible sites for an independent society, including Liberia, Canada, Central and South America, and the Caribbean (and Nicaragua and Grenada, specifically).

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cells, linked across plantations and states. In Blake’s movement across South and North Carolina, he encounters remnants of past insurrections. ‘Ah!’ said the old man, throwing his head in the lap of his old wife, with his hands around her neck, both of whom sat near the chimney with the tears coursing down their furrowed cheeks. ‘Dis many a day I been prayin’ dat de Laud sen’ a nudder Denmark ‘mong us! De Laud now anseh ny prar in dis young man! … North Carolina was traversed mainly in the night. When approaching the region of the Dismal Swamp, a number of old confederates of the noted Nat Turner were met with, who hailed the daring young runaways as the harbinger of better days. Many of these are still long-suffering, hard-laboring slaves on the plantations; and some bold, courageous, and fearless adventurers, denizens of the mystical, antiquated, and almost fabulous Dismal Swamp, where for many years they have defied the approach of their pursuers. (112–113)

Blake’s journey reveals the conditions and mechanics that form the structures of social nullification. The moments of de-linking, the enslaved’s disengagement from the existing system of control, displayed in the networking of Black insurrectionists across the antebellum United States, the instigation of revolt in Cuba, and the Amistad-like seizing of the slave ship Vulture, create a foundation for a theory and praxis that would argue for the complete dissociation of African peoples and the United States. The revolutionary acts within the novel, indeed the novel itself, are the artistic support to Delany’s understanding of the negation of Black life that is residence in the United States. Blake’s journey underscores the potential for Africans to sever their ties to white America: It suggests the means by which they could do so and the form that their liberation would take. Delany’s full embrace of emigration as the resolution of the antinomy of Black life grounds his understanding of the political, material, and psychological possibilities of fully realized Black humanity. His arguments and policies address the (lack of) civil position of Blacks in the United States and confront the absolute conditions of chattel slavery and the lack of Constitutionally enshrined rights for non-white males. His views on the possibility of citizenship and opportunity for Blacks changed with the onset of the Civil War. Following his son’s example, Delany enlisted in the Union Army; he later received a promotion to Major and was active in post-war South Carolina electoral politics. The conditions wrought by the abolition of slavery and the post-Civil War social and political circumstances presented their own challenges to fully vested Black engagement in

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the US life. These conditions would be addressed by Reconstruction and post-Reconstruction voices.

II.  De Contra Civic This is not the creature of an hour, the sudden outburst of uncontrolled fury, or the unspeakable brutality of an insane mob. It represents the cool, calculating, deliberation of an intelligent people who openly avow that there is an unwritten law that justifies them in putting human beings to death without trial by jury, without opportunity to make defense, and without right of appeal.10 If America would not hear the cry of men, women, and children whose dying groans ascended to heaven praying for relief, not only for them but for others who might soon be treated as they, then charge disloyalty to those who make an appeal to the civilization of the world for such sympathy and help as it is possible to extend.11

Ida Barnett-Wells was born in Holly Springs, Mississippi, in 1862—that is, near the apex of the Civil War. The eldest of five children born to freed people, Wells left school at the age of 16 to care for her siblings after their parents and youngest brother died in a Yellow Fever epidemic in 1878. She moved to Memphis, TN, and while working as a school teacher WellsBarnett began to write for local newspapers critiquing the rising tide of anti-Black discrimination in post-Reconstruction Memphis. These writings evolved into her legendary crusade against segregation and lynching and became the foundation for her life in journalism and as an activist. She and her generation witnessed changes that ranged from the jubilant heights of the first days of emancipation to the post-Reconstruction moment that historian Rayford Logan would describe as the “nadir” of Black life. The commitment to African-American citizenship that was initiated by the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments was symbolically betrayed by the Tilden-Hayes Agreement of 1876. This horse trade between the Democratic and Republican parties gave the Republican Party victory in the 1876 presidential election; in exchange, the Democratic Party received the end of the military occupation of the South by Federal 10  Ida B. Wells-Barnett, “Lynch Law in America,” in The Light of Truth: Writings of an Anti-­L ynching Crusader, ed. Mia Bay (New York: Penguin Classics, 2014), 394. 11  Ida B. Wells-Barnett, “The Crusade Justified,” in Bay, The Light of Truth, 281.

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troops and the re-establishment of Southern white (Democratic Party) control over the former Confederate states.12 Yet, this control did not assure a smooth transition to making the “Making the South Great Again.” Rather, since the freed people had fully embraced and exercised their understanding of the meaning of American citizenship, great political effort was necessary in order to reassert a white supremacist order. Post-­Reconstruction revisionism aimed to unravel and disrupt the African-­American belief in, and ability to wield, the powers of citizenship. From the perspective of the white revanchists, Black social and civil enabled Black citizenship; therefore that participation—evidence of the desire to act as citizens—needed to be destroyed. White physical violence, in the form of lynching, was a central means to maintaining and reinforcing social suppression, political exclusion, cultural stigmatization, and economic exploitation. Wells-Barnett’s work as a journalist positioned her to observe and record the most dramatic manifestation of the negation of AfricanAmerican citizenship. Wells-Barnett’s foundational belief was that Negroes, despite their previous status, were human beings and that the foundation for the new birth of freedom would be built from the recognition and defense of that humanity. Wells-Barnett belief echoed that of Abraham Lincoln. The philosophical heart of Lincoln’s Second Inaugural Address was his argument that [i]f we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came [italics mine] shall we discern therein any departure from those divine attributes which the … Fondly do we hope—fervently do we pray— that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said f[our] three

12  “The Fourteenth and Fifteenth amendments remained in effect, and Hayes had pledged to uphold them. He had expressed his distaste for the Republican regimes which remained in the South, and he had already sent signals during the campaign that he would remove the small contingent of federal troops that remained outside the state houses in South Carolina and Louisiana, thus causing the Republican governments that had been supported by the Grant administration to be replaced by rival, shadow governments run by Democrats” (Huebner 2016, 437).

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thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether’ (2002, 1) [italics mine]

Lincoln’s argument stands on the idea that the United States possesses an ethical obligation toward African peoples because of the 250 years of enslavement that they had suffered. The graphic language—“until every drop of blood drawn with lash, shall be paid by another drawn with the sword”—conveys that militant, aggressive, and disruptive action is required in order to address racial oppression. “The woe due to those by whom the offense came” refers not to those who initiated the Civil War but to all those who have committed the deeper offense of refusing to acknowledge African humanity. The responsible policies, persons, and institutions must be transformed or destroyed. Through these means, the destruction and transformation of these policies, persons, and institutions, a new society could be established. It is important to note that Lincoln’s views on Negro citizenship indeed evolved over the course of his presidency. The outbreak of the Civil War found Lincoln with a high degree of diffidence on the government’s relationship to African slavery. Though having expressed a personal distaste for the institution of slavery, Lincoln’s statements on it reveal the attitudes toward Black citizenship and equality reflective of his yeoman Midwestern background, where African-Americans had been systematically excluded from political participation in the states carved out of the old Northwest Territory.13 These states were populated by white working-class workers attempting to escape their marginalization by the dominance of the Southern slavocracy and competition with Black labor. Lincoln’s views on questions of race, slavery, and social and political equality were complicated, mixed, and evolving to say the least.14 13  Foner, Eric. The Fiery Trial: Abraham Lincoln and American Slavery. (New York: W. W. Norton and Co., 2010). Despite the opening of the lands of the Northwest Territory and the prohibition against slavery in the territory, and the antipathy of the upper south white migrants to the territory, “Such men viewed slavery less as a moral problem than as an institution that degraded white labor, created an unequal distribution of wealth and power, and made it impossible for nonslaveholding farmers to advance” (6). Foner notes the complexity of the point, “[However] hostility to slavery did not preclude deep prejudices against blacks. The early settlers of Indiana and Illinois wanted to be free of any black presence … Indiana and Illinois did everything they could to discourage the growth of a free black population” (7). 14  Lerone Bennet, arguing Lincoln’s views on race were a defining feature of his character hidden by historical mythologizing and analyzing the intrigues and manipulations of his last 100 days, writes, “He believed until his death that the Negro was the Other, the Inferior, the

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Lynching was employed to re-establish the dominance of the Southern plantocratic class: The reassertion of white supremacist domination necessitated murders, as well as political suppression, economic exploitation, and social diminishment. Wells-Barnett writes in The Red Record: During the slave regime, the Southern white man owned the Negro body and soul. It was to his interest to dwarf the soul and preserve the body. … But … Emancipation came and the vested interests of the white man in the Negro’s body were lost. … In slave times the Negro was kept subservient and submissive by the frequency and severity of the scourging but with freedom, a new system of intimidation came into vogue; the Negro was not only whipped and scourged; he was killed. (2014, 221)

All the rights and opportunities gained with the abolition of slavery, the destruction of the Confederacy, and the rise of Reconstruction were to be undermined through lynching. It would be the most definitive form of violence by which African-Americans would be shunted out of the halls of citizenship. Wells-Barnett laments her loss of faith in America’s promises. I have firmly believed all along that the law was on our side and would, when we appealed to it, give us justice. I feel shorn of that belief and utterly discouraged, and just now, if it were possible, would gather my race in my arms and fly away with them. O God, is there no redress, no peace, no justice in this land for us? (2020, xviii)

Wells-Barnett is able to organize and periodize the rationalizations for white terrorism by drawing from Frederick Douglass’15 description of the Subhuman who had to be …subordinated, enslaved, quarantined to protect the sexual, social, political, and economic interests of whites. Everything he did in his last one hundred days, everything he said, even the speeches, his defenders are always praising, was based on this racist idea, which defined his life, his politics and his Gettyburgs.” Bennet, Lerone. Forced into Glory: Abraham Lincoln’s White Dream. Chicago: Johnson Publishing, Inc. (624). 15  Frederick Douglass stalwart believer in the American republic, in the face of post-­ Reconstruction outrages, stated, “Let us see what are the relations subsisting between the Negro and the state and national governments—what support, what assistance he has received from either of them. Take his relation to the national government and we shall find him a deserted, a defrauded, a swindled, and an outcast man—in law free, in fact a slave; in law a citizen, in fact an alien; in law a voter, in fact, a disfranchised man. In law, his color is no crime; in fact, his color exposes him to be treated as a criminal. Toward him every attribute of a just government is contradicted. For him, it is not a government of the people, by the people, and for the people. Toward him, it abandons the beneficent character of a gov-

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post-­Civil War “three distinct eras of Southern barbarism” (Wells-Barnett 2014, 222). The first defense of lynching declared that it “was the necessity of white man to repress and stamp out alleged ‘race riots’” (Ibid.). This idea, that newly freed people engaged in mass “rioting,” became a staple excuse for lethal white supremacist violence, as it drew upon and reinforced the notion that the uncontrollable Negro, ill-equipped for freedom, was unable to function within “civilized” quarters without the stern discipline of whiteness. As it does still today, the stereotype of the violent, uncivilized Black person concealed the reality of violent white resistance to an inclusive democratic order. Wells masterfully exposes the pure hypocrisy and projection that white Southern anti-Black behavior entailed. “From 1865 to 1872, hundreds of colored men and women were mercilessly murdered and the most invariable reason assigned was that they met their death by being alleged participants in an insurrection or riot.” WellsBarnett continues that “[i]t was always a remarkable feature in these insurrections and riots that only Negroes were killed during the rioting, and that all the white men escaped unharmed” (513). She catalogues the white supremacist convictions that rationalized the passage of the Reconstruction Amendments: “No Negro domination” became the catch phrase as the Southern white man could not consider that the Negro had any right which a white man16 was bound to respect, and the disdain multi-racial Republican government in the Southern states grew into violent contempt. “The South resented giving the Afro-American his freedom, the ballot box and the Civil Rights Law” (Ibid., 226). It was maintained that “‘[t]his is a white man’s government!’” (533). Wells-Barnett also details the campaign of terror that was designed to destroy freed people’s participation in government. The campaign against “Negro domination” proved successful: “The franchise vouchsafed to the Negro grew to be a ‘barren ideality,’ and regardless of numbers, the colored people found themselves voiceless in the councils of those whose duty it was to rule” (Ibid.). The continuation of white supremacist violence, despite the success of that violence in destroying Black political power, betrays the fundamental purpose of lethal anti-Black violence in ernment, and all that gives a government the right to exist.” “I Denounce the So-called Emancipation As A Stupendous Fraud: Speech on the occasion of the Twenty-Sixth Anniversary of Emancipation in the District of Columbia, Washington, D.C., April 16, 1888,” in Frederick Douglass: Selected Speeches and Writings, Yuval Taylor and Philip Foner, eds. (New York: Lawrence Hill Books, 2000), 717. 16  Ibid., p. 533.

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the post-Reconstruction period: to degrade humanity: “Brutality still continued; Negroes were whipped, scourged, exiled, shot and hung whenever and wherever it pleased the white man so to treat them” (Ibid.). The third and final rationalization for the murder of African-Americans is the one that remains most imbedded in the contemporary popular imagination and most linked to the act of lynching: the defense of white womanhood. The refashioning of the public idea of Black men is concluded with this final detail. The racist fictional figure of the subhuman, violent, and power-­ hungry free Black man is joined to that of the Black male sexual predator, completing the trifecta of white supremacist projections (inhuman, violent, and sexual predators). This final element strove to manipulate the emotional perceptions of white observers and provide an unassailable justification for anti-Black violence. This particular charge lays the foundation of possibility for all the calumnies with which the freed man was charged. It would serve as the final nail in the coffin meant to bury the idea of Black humanity, as Wells wrote: “Humanity abhors the assailant and this charge upon the Negro at once placed him beyond the pale of human sympathy. With such unanimity, earnestness and apparent candor was this charge made and reiterated that the world has accepted the story that the Negro is a monster which the Southern white man has painted him” (Ibid., 542). Wells-Barnett exposed the political, social, and rhetorical box into which white terrorism had painted Black lives. Her arguments in response to the charges of Black male sexual assault against white women are rapier-like in their exposure of white hypocrisy, and she stated clearly that such charges were never heard during slavery: “During the years of slavery, no such charge was ever made … while the master was away fighting to forge the fetters upon the slave, he left his wife and children with no protectors save the Negroes themselves” (Ibid., 568). The fantastic justification that chivalrous white men are protecting the virtue of white women serves merely as a distraction from the well-deserved opprobrium directed at Southern violence against Blacks. “To justify their own barbarism [italics mine] they assume a chivalry which they do not possess. True chivalry respects all womanhood, and no one who reads this record, as it is written in the faces of the millions of mulattoes in the South will for a minute conceive that the southern white man had a chivalrous regard for the honor due the women of his own race or respect for the womanhood which circumstances placed in his power” (Ibid.). Understanding the act of lynching to be the way in which white Southern revanchists asserted their power, Wells-Barnett

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asserts an equal and opposite proposal as the mechanism for Black survival and expansion. In the face of the post-Reconstruction assault on Black life, she disagrees with the growing African-American consensus and proposes. “Thoughtful Afro-Americans with the strong arm of the government withdrawn and with the hope to stop such wholesale massacres urged the race to sacrifice its political rights for the sake of peace” (Ibid., 235). In the post-Reconstruction South, the conditions to which Black people were subject negated expectations for their social, civil, and lived lives. Wells-Barnett response to these circumstances epitomizes the stance toward Black citizenship, freedom, and self-defense in the face of antiBlack violence that I term, de contra civic. De contra civic (The Antagonistic Citizen) is a citizen whose relation to the state and society is one of constant tension and antagonism, in which the actions of the citizen challenge the actions of the state toward them and carve out paths of existence and meaning-­making other than those determined by the dominant society. The contra civic is an iteration of Black social and political consciousness which understands and embraces the necessity of aggressive and assertive challenge to forms of white domination, in order to undermine white supremacy through outright defiance and through the creation of alternative paths of existence for Black people. De contra civic redefines and reformulates the relationship between the individual (citizen) and the state. In thinking about the historical situation African-Americans, the contra civic disputes the idea of cooperation in a mutually beneficial power-sharing relationship between state and citizen. The contra civic demonstrates the necessity of reclaiming popular power and recognizing and acting on the tension that inheres between to accomplish this. In Southern Horrors: Lynch Law in All Its Phases (189), in her position as a contra civic, Wells-Barnett establishes the praxes through which AfroAmericans can challenge the white supremacist order of the PostReconstruction South. Tommy Curry examines the way that T. Thomas Fortune’s writings influenced Wells-Barnett’s philosophy (2012). Curry argues Fortune eschews the idea of “the capacity for whites to be morally persuaded against white supremacy” (Ibid., 456), which comforts American society with delusions about the virtues of American character and the inherent justice of the American order. Curry, in his essay “The Virtue of Agitation,” describes what he terms Fortune’s Agitationist philosophy (Ibid., 468), wherein Fortune expounds on “Agitation” as—consisting of steady aggressive, committed challenges to the dehumanizing practices of white supremacy—is necessary for the achievement of justice. Curry explains, “Fortune indicates that agitation is the countervailing force to

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the, ‘propensity to tyrannize; the predominant element in human nature’” (Ibid.). This tendency to tyrannize, so evident in the behavior of white Americans, necessitates that African-Americans act in service of their collective interest. As Wells-Barnett did, Fortune understood the struggle for Black freedom as a part of a larger dynamic of human motion: “We should learn that the aggressive man, the man who is always ready to contend for what is his. In politics, in business, in social intercourse, we want to show more manhood, a deeper appreciation of the philosophy of life [italics mine]” (Ibid.). Wells-Barnett understanding of this philosophy of life asserts the necessity of constant resistance to whatever opposed Black freedom. The white revanchist program sought a return of the freed people to what Southern white supremacist fantasy saw as Black people’s natural place in the order of things; revanchists pursued this goal through social, political, economic, rhetorical, and terroristic intimidation. Wells-Barnett, in her articulation of the contra civic, argued for militant challenges to this program: she sought to stoke the fires of Black self-preservation, to carve out areas of Black empowerment, and to expose and erode the fragile girders of white supremacist consciousness. As it had been during slavery, the economic exploitation of the Black population was a central plank of the post-Civil War white supremacist order. Black entrepreneurship challenged this exploitation by drawing Black consumers away from white businesses and creating independent bases for Black community leadership. Organized, independent Black labor challenged white capital’s dictatorship. Wells-Barnett exposed the vulnerability of white capital which white supremacist assertions sought to disguise: “To Northern capital and Afro-American labor the South owes its rehabilitation. If labor is withdrawn capital will not remain. The AfroAmerican is thus the backbone of the South” (Wells-Barnett 2014, 384). Wells-Barnett saw this reality as a lever of power to be used in the war against lynching (and lynchers). She writes in the wake of the lynchings of three Black men, friends of Wells-Barnett, who were targeted due to the growing success of their business: The Afro-Americans of Memphis denounced the lynching of three of their best citizens, and urged and waited for the authorities to act in the matter and bring the lynchers to justice. No attempt was made to do so [italics mine] and the black men left the city by thousands, bringing about great stagnation in every branch of business. Those who remained so injured the business of the street car company by staying off the cars. (Ibid.)

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Wells-Barnett points to labor strikes and boycotts as methods that disrupt the economic functioning of Memphis specifically and of white business in general. If part of reasserting white dominance in the South is re-­establishing racial economic monopolies, then the Achilles heel in that plan is white capital’s dependence on the exploitation of Black labor and Black consumers. White capital is completely dependent upon the exploitation of Black labor. Wells-Barnett documents and demonstrates the power of the surplus theory of Black labor. Whether by challenging primitive accumulation or M-(Negro)C-M1, Wells-Barnett and the Black population of Memphis disrupted the burgeoning order of white popular dictatorship by denying white supremacy the prime mover of the post-Reconstruction Southern economy, Black people.17 Ironically, the negation of Black personhood that was sought by the whites of Memphis took physical form in the conscious departure of Black bodies; the literal lack of Black persons meant that white Memphis could not exploit Black labor. When none obey, none can command. Wells-Barnett organization and support of Black Memphians’ general strike dramatically demonstrates the velocity of Black people, giving force and direction to their drive to achieve Black political and economic goals, and simultaneously challenging the white assumption of absolute control over these bodies. This general strike, this city-wide walk out in the form of migration, was an effective tactic: as Pamela Giddings writes, “As a direct result of her [Wells’] efforts, the city fathers were pressed to take an official stand against lynching—and for the next twenty years there was not another incident of vigilante violence there” (1985, 92). The second prominent feature of Wells’ contra civic was the assertion that Afro-Americans must impose their will onto the white body. From her calls for labor strikes and economic boycotts of white-owned businesses, to her own example of the adversarial power of the journalistic voice,18 WellsBarnett adds a call to armed militancy. Describing the response of Black communities in Jacksonville, Florida, and Paducah, Kentucky, Wells notes that not all attempts to lynch Black people were successful: “The only times an Afro-American who was assaulted got away has been when he had a gun 17  William Melvin Kelley’s enigmatic but underrated novel, A Different Drummer. Anchor: New York Reprint edition (May 1, 1990), provides an absurdist but devastating imagining of the White South’s unraveling in the absence of Black people. 18  See Simone W.  Davis, “The ‘Weak Race’ and the Winchester: Political Voices in the Pamphlets of Ida B. Wells-Barnett,” Legacy 12, no. 2 (1995): 77–97.

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and used it in self defense. This lesson teaches and which every Afro-­ American should ponder well, is that a Winchester rifle should have a place of honor in every [B]lack and it should be used for that protection which the law refuses to give [italics mine]” (2014, 413). Davis identifies this argument as a part of her use of inverted binaries to illustrate how she “pressures the ideological constructs that naturalized racism for turn-of-the-century white Americans” (Davis 1995, 77). Wells-Barnett appropriates and inverts the equations and oppositions that justify anti-Black oppression—white equals civilized and law-abiding, and is opposed to Black, which equals savage and anarchic. She thereby establishes the grounds for a radical praxis which would make possible a Black-determined safety and order. Thus the acts of the mob with the victim of its fury, conscious that it will never be called to account. Not only is this true, but the moral support of those who are chosen by the people to execute the law is frequently given to the support of lawlessness and mob violence. The press and even the pulpit, in the name either by silence or open apology, have condoned and encouraged this state of anarchy. (Wells-Barnett 2014, 87)

Wells-Barnett cites the pervasive failure of a range of institutions (government, journalistic, and religious) to address the systematic murder of Black peoples and indicts these institutions for their silence, which had served to normalize violence against Black people. Through her calls for counteracting lynching with armed self-defense, Wells positions Black agency as normative; Black agency and action supplant white agency and action as the lawful norm. She thereby argues that it is white (violent) action that is deviant. The “law” of white violence is revealed to be the anarchy that Black self-defense must strive to govern in order to establish a new order in which Black people can live. White “civilization” is savagery, and the measured efforts on the part of “savage” Black people to curb it constitute truly civilized behavior. Arguably any application of these categories is problematic since they are formed from colonial/imperialistic societal hierarchies. However, Wells’ inversion of these categories to critique white policies and practices is a powerful use of the language of white supremacy against itself; WellsBarnett readers thus glimpse the contradictory and hypocritical nature of white institutions. Armed Black communities become the arbiters of what is orderly, lawful, and civilized in the face of the chaos of white rule; they embody what is necessary to affirm the civil position of Black citizenship.

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Anticipating Mao Tse Tung (Zedong) by half a century, Ida B. Wells-­ Barnett understood that “power grows out of the barrel of a gun.” Wells’ Mob Rule in New Orleans describes Robert Charles’ desperate battle with the New Orleans Police Department. Though its dramatic scenes and the pace of narrative read like crime fiction, Wells’ all-too-true account illustrates the extrajudicial measures necessary and available to African-­ Americans who sought to avoid white law and order. On July 24, 1900, Robert Charles and his friend, Leonard Price, were accosted by three white New Orleans policemen, Sergeant Aucoin and Officers Mora and Cantrelle. Sitting on the doorsteps of a neighborhood home, the two “had not broken the peace in any way … no warrant was in the policemen’s hands justifying their arrest and no crime had been committed of which they were suspects” (Wells-Barnett 2014, 342).19 There was no legal reason for police intervention. However, the policemen, as representatives of the New Orleans Police Department and as representative of that department’s anti-Black cultural ethos, approached the two men, “secure in the firm belief that they could do anything to a Negro that they wished” (Ibid.). The approach quickly turned into an attempted arrest, with Pierce submitting after Officer Cantwell aimed a gun at his head. Charles, having been attacked by Officer Mora first, with a billet, and then a gun, responded likewise. There then began, Wells-Barnett writes, “a duel in the street, in which both participants were shot. The policeman got the worst of the duel, and fell helpless to the sidewalk. Charles made his escape” (Ibid.). When Charles escaped to his residence and then faced an early morning police raid, he, wounded, resisted the police unit’s attack, shooting and killing two of its members. Two remaining officers withdrew as Charles reportedly escaped from his apartment. Wells-Barnett repeatedly notes the “cowardice” of the white officers, observing that their moments of courage occurred when they faced unarmed and vulnerable Black people and could feel confident in what they believed to be the overwhelming intimidation generated by their racial and governmental position. Wells-Barnett further argues that Charles’ actions were constructed through a distorted lens and that justice and fair treatment were impossible for him, or for any Black person, to receive. In his critical assessment of this reality, Charles chose the route he understood as most appropriate for the circumstance: armed resistance to, as Wells describes it, the “absolutely unlawful attack” (347) which resulted from police misconduct and harassment. Wells portrays Charles as justified in his desire to “protect his life as long as he had  Ibid., p. 342.

19

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breath in his body and strength to draw a hair trigger on his would-be murderers” (342). In any law abiding community Charles would have been justified in delivering himself up immediately to the properly constructed authorities and asking a trial by jury of his peers. He could have been certain that in resisting an unwarranted arrest he had a right to defend his life, even to the point of taking one in that defense, but Charles knew that his arrest in New Orleans, even for defending his life, meant nothing short of a long term in the penitentiary, and still more probable death by lynching at the hands of a cowardly mob. (Ibid.)

Charles’ response to the New Orleans police, as well as the rationale he asserts for that response, demonstrates the inversion of the binary categories of white supremacy which was integral to Wells-Barnett political thought. Wells-Barnett’s account also shows readers how the New Orleans popular press shared with the New Orleans Police Department a single rhetorical and regulatory framework that served to deny the practice of legal equality before law and of a normative judicial order for Black people. “The New Orleans daily papers at once declared that both Pierce and Charles were desperadoes, that were contemplating a burglary … and began the assault upon the policemen” (343). The newspaper served as a powerful reinforcement and justification for the lethal policing practices, drawing from and replicating the white supremacist framing of Black men. “Robert Charles … wounded in the leg and sought for by the entire police force of New Orleans. Not sought … to be placed under arrest and given a fair trial and punished if found guilty according to the law of the land, but sought for by a host of enraged, vindictive and fearless officers, who were cooly ordered to kill him on sight” (347). Charles’ resistance to the machinations of the police force ignited massive white aggression and Black revolt in New Orleans. The police force used this as provocation to gather and arrest community leaders, while the heaving white mob grew in its destruction and abuse of Black New Orleanians. The several days of white aggression ended when “it became known … that [Louisiana] state bonds had depreciated from a point to a point and a half on the New York market,” and “the better elements of white citizens began to realize that New Orleans in the hands of a mob would not prove a promising investment for Eastern capital.” Wells documents the storm of violence that

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crashed against Black New Orleanians and concludes with the death of Robert Charles at the hands of the legal mob: [Charles] made a last stand in a small building … unable to get to him in his stronghold, the besiegers set fire to his house of refuge. While the building was burning Charles was shooting. … Finally, when fire and smoke became too much for flesh and blood to stand, the long sought fugitive appeared in the door, rifle in hand … he raised his gun to fire again, but this time it failed, for a hundred shots riddled his body, and he fell dead face fronting to the mob. (358)

Ida B. Wells-Barnett saw the role of Black armed self-defense as central to Black people’s political life, just as such self-defense is central to the psychological life of Fanon’s colonized subject. Wells-Barnett account of Robert Charles’ stand against the violence of the New Orleans police force and mob terror exposes the hypocrisy and arbitrariness of law under white rule. Moreover, Charles’ actions, although they tragically end with his not unexpected death at the hands of the police force, shatter the image of an absolute and unaccountable white power. Interestingly Wells revealed that instead of the fearsome “desperado” crafted by the New Orleans media, Robert Charles was a quiet, hard-working member of the Black community who worked for the Voices of Mission, “the colored missionary organ of the African Methodist Church, edited by H.M.  Turner” (381). The publication was linked to the International Migration Society, which preached “a doctrine that the best interests of the Negro will be subserved by an emigration from America back to the Fatherland” (384). Charles’ resistance to arbitrary white supremacist abuse was linked to his own belief in the necessity of Black independent sovereignty from the domination of white Americans as the Liberian emigration movement. Voices of Mission pamphlets found in Charles’ possession include Prospectus of the Liberian Colonization Society, Christian Civilization of Africa, and The Negro and Liberia. He was reportedly a fervent believer in emigration; Wells writes that one of Charles’ colleagues reported: “One of the circulars in which Charles was in possession of which was styled as argued by a crazy document [Voice of Mission pamphlet]. Let me say, until our preachers preach this document we will always be slaves [italics mine]” (386–387). For Wells-Barnett, Charles’ commitment to live his life beyond random violence, humiliation, and the degradation and diminution of Black civic life, as well as his belief that Black autonomy could and should be achieved

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through self-defense and sovereignty, are all examples of what I have termed the Black contra civic. “He raised his hand to resent unprovoked assault and unlawful arrest that fateful Monday night. That made him an outlaw, and being a man of courage he decided to die with his face to his foe. The white people of this country may charge that he was a desperado, but to the people of his own race Robert Charles will always be regarded as the hero of New Orleans” (387).

III.  Healing the Breach and Recognizing the Chasm “When will we get paid/for the work we’ve done?” (The Staple Singers)

The toll of white supremacist anti-democratic and exploitative practices on the lives of African-American people has been examined through moral, psychological, cultural, and political frameworks. As I argue, the effect of these practices upon contemporary Black life exposes the failure of the United States to honor its civic obligations to Black people. I argued, Black people have attempted to nullify their civic obligations to the American state, in a variety of ways including re-visioning and reframing those obligations. More recently and with a deepening resolve, African-­ American scholars and activists have addressed the question of the economic toll of white supremacy on Black lives and brought closer to mainstream discussion the effect of anti-Black practices on Black life. Although it is a long-established topic, the question of reparations for African-Americans has re-entered the discourse around Black self-­ determination, empowerment, and freedom. The essential role of Black labor (enslaved and later nominally free) as the source of capitalist development across the Atlantic rim has only recently been acknowledged in mainstream historical discussions. However, there is still significant resistance to centering Black labor in the canonical historical narrative of the Modern world. To do so would be to rewrite the narrative of white social development in the West. Rather than a story of individual will and self-determination, we would read a story about the literal and figurative rape of Black bodies for their labor and resources.20 20  Those in the popular arena that resist the centering of Black labor as the center of the capitalist development of the nations of the North Atlantic world, for example historian Peter Wood, in his effort, 1620: A Critical Response to the 1619 Project (New York: Encounter

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Such an historical understanding leads to questions about the expropriation of the product of that enslaved labor, the lack of proper remuneration for that expropriation, and the effect of these on the post-slavery life chances of freed people.21 These life chances continue to be deeply affected by original and ongoing disparities in wealth between Black and white people, by the continuing subversion of Black people’s ability to generate capital through financial and economic policies, and by Black exclusion from the mainstream mechanisms of social opportunity and empowerment, such as education, politics, and social clubs. Reparations emerge as the mechanism by which to remedy, through recompensation, the failings of the United States in its obligations to protect the fundamental human rights and the Fourteenth Amendment rights of African-American citizens to equal protection under law. Despite being Books, 2020), argues against a point long asserted by figures such as W.E.B. Du Bois, Black Reconstruction in America: 1860–1880. (New York: Atheneum Books, 1935), C. L. R. James, The Black Jacobins. (London: Secker and Warburg, Ltd., 1938) and Eric Williams, Capitalism and Slavery. (Chapel Hill, NC: University of North Carolina Press, 1944) and one long embraced among scholars of the Africana world. More contemporarily Cedric Robinson, Black Marxism: The Making of the Black Radical Tradition. (London: Monthly Review Press, 1983) and Gerald Horne, The Apocalypse of Settler Colonialism: The Roots of Slavery, White Supremacy, and Capitalism in 17th Century North America and the Caribbean (London: Monthly Review Press, 2018) provide deeper roots for the role of racialized labor, not only in the development of capitalism but in the very origins of capitalism and the creation of the United States as a white nationalist settler state. 21  Wells enjoyed contemporaries that engaged questions of the exploitation of Black labor, its role in the ordering of US society, and the necessity of socialism as a countervailing force to address the harms done to working peoples. In Chicago, Illinois, there was Lucy Parsons (1853–1942), member of Social Democracy, a founder of the International Workers of the World (1905), and member of the National Committee of the International Labor Board (1927), Lucy Parsons fought on behalf of the working classes, challenging the parties and policies of the ruling classes to renew the American experiment. “Lucy Parsons’ life expressed the anger of the unemployed, workers, women and minorities against oppression and is exemplary of radicals’ efforts to organize the working class for social change” (9). Carolyn Ashbaugh. Lucy Parsons: American Revolutionary (Chicago: Charles H. Kerr, 1976). Baptist minister George Washington Woodbey of California was a long proponent of Socialism and wrote three pamphlets expounding his ideas: “What to Do and How Do We Do it, or Socialism vs. Capitalism” (1903), “The Bible and Socialism: A Conversation Between Two Preachers” (1904), and “The Distribution of Wealth,” (1910) Eric Foner, ed. Black Socialist Preacher (San Francisco, CA: Synthesis Publications, 1983). And finally ideological polyglot and “America’s first Black socialist,” Peter Clark of Ohio deftly navigated post-­Reconstruction America’s fraught racial politics through a complex array of political positions and alliances. Taylor, Nikki M. America’s First Black Socialist (Lexington: University of Kentucky Press, 2013).

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grounded, necessarily, in history, the argument for reparations looks to the present and future: reparations would be based on an assessment of the contemporary consequences of a particular historical legacy. It is a legacy of subverted possibilities, deferred dreams, and broken promises, and it belongs to the people who continue to live with that legacy daily. It is the life and history of Black people with receipts. The argument for reparations to African-Americans for the exploitation of their labor and for the human degradation they suffered has been made for as long as Black people have been freed from slavery. As Sandy Darity and A. Kirsten Mullen (2020) remind us, the mythic “forty acres and a mule” promised to freed people at the end of the Civil War was no myth. The pithy slogan that has been embraced by contemporary African-­ Americans as indicative of the failure of compensatory justice for their enslaved ancestors, was in fact a battle field policy decision from the Civil War. The program began in Special Field Order #15, executed by Union General William T.  Sherman. In the waning days of the Civil War, as enslaved populations were being liberated in the wake of Union victories in the Confederacy, freed people’s need to sustain themselves became overwhelmingly apparent. The liberated lands and the liberated populations were understood, certainly by the freed people, to be perfectly matched. At a January 1865 meeting in Savannah, Georgia, General Sherman and Secretary of War Edwin Stanton met with a group of Black local leaders led by Reverend Garrison Frazier. When asked what he and other freedmen would need to sustain themselves after the end of the war, “Reverend Frazier replied, ‘Land.’ … The way we can best take care of ourselves is to have land and turn and till it by our own labor. We want to be placed on land until we are able to buy it and make it our own” (Darity and Mullen 2020, 9). This exchange led General Sherman to seize the farms which planters had deserted and divide them into 40-acre plots— the amount of land that could support a family of two adults and two children—and distribute them to the freed people so that they might sustain themselves after emancipation. Whereas Sherman and Stanton were in the process of shaping Lincoln’s post-war plans for the freed people, the freed people had clear ideas about what their emancipated lives would look like. From Reverend Frazier’s statement, it is clear the freed people’s request for land was not explicitly connected to a notion of reparations for the suffering of enslavement or of restitution of the value of their stolen labor. Their request was, however, a matter of equality; they wanted to

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obtain the materials necessary to pursue the opportunities available to free, white, people (men). The reception of the former planters’ lands enacts an unannounced form of justice as the lands had been worked, developed, and made valuable by the labor of the enslaved. Henceforth they would be worked and developed by the newly emancipated, and the value generated would accrue to them. The ownership of land gave the freed people a footing for economic development as self-sustaining yeoman farmers and social status as landowning members of their communities. The distribution of land to the freed people would provide the most basic opportunities for them. It would put them on the same footing and give them the same opportunities as the white working class, a circumstance rife with complication. Eric Foner describes the efforts on the part of early nineteenth-century white yeomanry of the old Northwest Territory (Ohio, Indiana, Illinois) to secure economic and social standing. Many had moved from the upper South into the southern regions of the Northwest to escape the economic and political constraints of the slave system. “Such men viewed slavery less as a moral problem, than as an institution that degraded white labor, created an unequal distribution of wealth and power, and made it impossible for nonslaveholding farmers to advance” (Foner 2010, 6). Averse to slavery but also antagonistic to Black people and labor, these communities “did everything they could to discourage the growth of a free black population” (Ibid., 7) and attempted to create white states. Their desire was for greater political and economic empowerment through the untrammeled access to land. Sans the oppression of white supremacy, the efforts of the freed people as they chose their places in American society mirrored those of their white working-class counterparts. Freed from the constraints of the plantation system, Black people could gain access to the resources necessary to construct their lives as they saw fit. “Forty Acres and a Mule” would serve as a foundation for the construction of Black American life, in that it provided for Black people’s equal participation in the systems of US material development. It was foundational in a figurative sense too, as it came to be viewed as a sign of the commitment of the United States to supporting and recognizing African-Americans as free and equal members of the society, as, in short, citizens. Whereas the “Reconstruction Amendments” served as the legal and juridical recognition, and the guarantors of the basic rights of Black citizenship, for the freed people, the provision of material resources allowed

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for a freedom from the peculiarities of anti-Black racism by establishing an economic foundation for self-determination, competitive engagement, and independent organization. A policy of providing material resources would contribute to the negation of the condition of enslavement: it would make possible, movement for the constrained, the franchise for the disenfranchised, legal protection for the legally vulnerable, resources for the destitute, and land for the landless. The distribution of land acknowledges the deprivations of forced servitude and seeds the possibility of an independent existence, one beyond the control of the enslavers. Such an act is not historically unprecedented; for example, the emancipation of the Russian serfs was accompanied by the provision of land to them.22 The freed people seemingly wanted no more and no less than access to the tools of American freedom wielded by white American communities. They saw the provision of materials and opportunities as part of their due as an aggrieved party and part of the confirmation of the nation’s commitment to their fully vested citizenship. “The former slaves … self consciously viewed themselves as individuals ‘newly invested with all the rights of an American citizen’” (2020, 94). The assault upon their citizenship through the assault on their access to the tools of empowerment (land, voting, education, and business) in the immediate post-Civil War period, implemented by the rise of Black Laws and white terrorism, though mitigated by Reconstruction but by its end, with the rise of Jim Crow segregation, sharpened the argument for the need to recognize and address the deprivations of slavery, the post-slavery condition, and the effects of these deprivations on Black social and material possibilities. 22  At the 1876 Republican National Convention, Frederick Douglass used the Russian peasants as an example and counterpoint to the injustices visited on the freed people. “When the Russian serfs had their chains broken and were given liberty, the government of Russia, aye, the despotic government of Russia-gave to those poor emancipated serfs a few acres of land on which they could live and earn their bread” (Darity and Mullen 2020, 10). Historian Peter Kolchin argues the parallels and divergences between the conditions of the enslaved and liberated African-American and their historical peers the Russian serf. Kolchin analyzes the conditions of servitude, labor, freedom, and the ideological frames that shaped the conditions of the American freed person and the Russian serf. Kolchin notes a significant distinction in the post-servitude lives of both groups, “The most fundamental consequence concerns the the relationship between the masters and the bondsmen; on the whole Russians serfs were able to lead lives, that although circumscribed by the authority of the owners, were much more independent than those of American slaves” (46). Douglass in his acknowledgment denotes this difference as a question of land, the source of autonomy, and self-determination.

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The movement for reparations was part of the post-Reconstruction critique of the conditions of African-Americans. Notably, the work of Callie D. Guy House and of the National Ex-Slave Mutual Relief and Bounty, and Pension Association (MRBP) tracks a pattern visible in African-­ American political history and culture: House, a widowed laundry woman raising five children. Reading the pro-reparations pamphlet, Vaughn’s Freedmen’s Pension Bill: A Plea for American Freedmen, House joined with the titular author of the pamphlet, Walter R. Vaughn, a Nebraskan Democrat, ex-mayor that had proposed H.R. 1119, an ex-slave pension bill (2020, 11). The two ended their alliance and House teamed with Isaiah Dickerson to found the National Ex-Slave Mutual Relief and Bounty, and Pension Association (MRBP). The goals of the organization were to (1) Identify ex-slaves and add their names to the petition for a pension: (2) lobby Congress to provide pensions for the nation’s estimated 1.9 million ex-slaves … (3) start local chapters and provide members with financial assistance when they became incapacitated by illness; and (4) provide a burial assistance payment when the member died. The MRBP modeled its pension plan for the formerly enslaved on the Civil War program for ‘disabled veterans and families of deceased veterans’ approved by Congress on July 14, 1862. (Ibid.)

The advocacy for community-specific development policies and the politics of self-determination among African-Americans was and is a direct response to mainstream America’s dismissal of African-American claims for opportunity and justice. Calls for reparations arise in historical moments where there is increased awareness of the extent to which established means of social development have failed the African-American community. These moments inform the civic self-awareness and political vision of African-Americans. As C.P. Henry writes, “Black nationalism has always enjoyed increased popularity in the African-American community when the larger society has cut off or narrowed access to the mainstream” (2003, 141). Exemplary of this dynamic is the work of the activist Queen Mother Moore. Born in 1898 Moore developed ties to Pan-Africanist Marcus Garvey’s Universal Negro Improvement Movement. She later launched the Committee for Reparations for the Descendants of Slaves and in 1957 “formally appealed to the United Nations for reparations for African-­ Americans” (Darity and Mullen 2020, 13). The contemporary calls for

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reparations for the descendants of enslaved Africans in the United States fits this historical pattern. In the mid-1980s a resurgent interest in reparations led to the founding of the National Coalition of Blacks for Reparations in America (N’COBRA), founded by a coalition of the National Council of Black Lawyers, the New Afrikan People’s Organization, and the Queen Mother Moore influenced Republic of New Afrika.23 The organization was founded “for the sole purpose of obtaining reparations for African descendants in the United States” (Darity and Mullen 2020, 15). More recently, whether through public policy or private activity, proponents of reparations have gained the attention of Black Americans at moments when frustrations with America’s racism toward Black peoples reach heightened levels. The denial of access to mainstream resources or the provision of normative opportunities for Black people is seen as extensions of previous era’s discriminatory policies and understood to be foundational to the relationship of US society to Black people. Demands for reparations dramatically recognize the impotence of the liberal and neoliberal attempts to address the inherent and structural constraints on the materiality of Black life and the permanence of Black people as America’s underclass. The rise of the online American Descendants of Slaves (ADOS) movement which supports and argues for the exclusive allocation of reparations to the descendants of Africans enslaved in the United States, has generated discussions around the Diasporic reach of US anti-Black policies, the role of Diasporic community within the United States and determinations over the effects of US discrimination against Black peoples of varying ethnic, historical, and geographical origins.24 23  The Republic of New Afrika’s platform and socio-political goal was the reparative act of ceding sovereignty over large areas of the US South including South Carolina, Georgia, Alabama, Mississippi, and Louisiana as an independent republic for African people in America. This policy was based on the articulation of the illegitimate citizenship status of African-descended people in the United States. Rooted in the principles of the New Afrikan Political Science, “The project of RNA sovereignty, independence and reparations rests on the premise that African people in the United States have never been legitimate citizens. Instead the Fourteenth Amendment made them ‘paper citizens,’ people who were deprived of the chance to decide where to place their political consent.” Onaci, Edward. Free the Land: The Republic of New Afrika and the Pursuit of a Black Nation State. (Chapel Hill: The University of North Carolina Press, 2020) 44. 24  More to the point, the ADOS Movement articulates an aggressive Afri-US centricity that invokes a conservative idea of African-American historical identity, a narrow apprehension of the ways in which American white (trans-) nationalist policies have affected African peoples, historically and contemporarily, and problematic articulation of the processes of African

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Whereas liberal and neoliberal policies assume the normativity of Black interaction within US society—what is good for the white citizen is good for Black people—contemporary arguments for reparations are founded upon an awareness of the extraordinary circumstances that have shaped Black materiality and that make them almost singularly unique in the annals of American history. This idea of equal access to social opportunities for Blacks and whites better serves the myth of the “American melting pot” and reinforces the notion that the nation has placed all of America’s ethnic communities on equal footing. It cavalierly ignores the brutal machinery fueled by the genocide of First Nations people and the enslavement of Africans, sapping the literal life blood of these communities for the enrichment of white Americas: E pluribus unum indeed. Demands for reparations challenge this assumption of African-American development as free from the effects of historical and contemporary discrimination and redirect and redefine the relationship between the African-American community and US public and private institutions, thereby reframing the American narrative, not as one where Africans provided their share to the American historical pot but as one in which much is owed to those from whom much was taken. The national story becomes that of a relationship composed of debts and peopled by creditors and debtors (Robinson 2001). The contemporary discussion of reparations, although it can be traced along a thread flowing from the mid-twentieth-century activism of Pan-­ Africanist Queen Mother Moore and others, began to expand and move closer to mainstream thinking by the late 1980s. The sharp conservative movement in American politics that was crowned by the election of Ronald Reagan in 1980 initiated an era of dramatic cuts and reversals of the New Deal and of the Great Society-based liberal economic and social policies of the Civil Rights era. This “post-Civil Rights” era was signaled by cuts to housing and public education, the demonization of the urban poor, the militarization of urban police forces, the expansion of the “War on Drugs,” which led to the mass imprisonment of Black and Brown citizens, judicial attacks on Affirmative Action programs, and the overt racialization of electoral politics. Diasporic existence as they relate to the global structures of North Atlantic economic and political dominance and the churning waves of Black interactions that have and continue to contest those structures. In this, ADOS takes a dramatic step back from the structures of Pan-Africanist thought and praxis which have long fueled critiques of the disparate applications of US citizenship to Black residents.

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This second post-Reconstruction moment undermined the seeming gains made by African-Americans as a result of the concerted devotion of funding to the programmatic needs of traditionally marginalized populations. The effects of neoliberal economics manifested in the weakening of the social safety net which had been relatively beneficial to late twentieth-­ century African-Americans, racialized politics, and the growing attempts to privatize public (nominally common) institutions, another sign of neoliberal policies, placed blocks on African-American social growth, which had depended on aggressive public policies and the state defense of those policies. The weakening of these policies, an act of antagonism against the Black underclass, also affected the aspirations of middle-class African-­ Americans and forced a revisiting of the deep, historically rooted, structural vulnerabilities of Black people that normative policy making did not and could not address. Reparations, as aligned with the experiences of African-descended peoples, are an expression of a deep critique of the failure (rejection) of systems of opportunity, legal accountability, and resource distribution to be inclusive of this exploited population. Historic or contemporary groups turn to reparations as a mechanism and an argument to address the practices that have caused harm to said community’s equal functioning within a society. Based on historic, and in the case of African-American people, continuing injury calls for reparations voices assertions for the recognition of those harms and means by which to address the damage caused by those harms. Reparations stand as a description of a tear in the fabric of law, morals, and humanity between the harmed community and the community that caused said harm. In the framing of this work, this tear is one which damages the civic connection between African-Americans and the larger society. This tear undermines the idea and practice of “equal protection under the law” for all and makes impossible the full unification of African-descended peoples into the civil, social, political, and economic body with the nation. The diremption resulting from slavery, a century of legal segregation and the persistence of post-civil rights public and private institutional discrimination, argues a dramatically different set of conditions that determine how Black Americans live, how they engage and operate in the American world, and the need for an elementally re-­ structured set of possibilities for citizenship itself. The acknowledgment of historical and ongoing injury would make possible the experience of fully realized citizenship for African-Americans and eliminate the existential chasm that exists between African-Americans and the American world.

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Paraphrasing James Baldwin, if Black people have been strangely grafted onto America (2012), then the call and the demand for reparations become a means to identify the perpetrator of the injury, to address the cause of the damage, and to attempt to heal the wound. Fundamental to the calls for reparations is the issue of restitution, which serves as the moral justification for the demands. Restitution speaks to the acknowledgment of loss on the part of the aggrieved parties (African-­ Americans) and the accountability of the responsible parties (the American State and its representatives). Whether that be loss of revenue from forms of theft, loss of opportunity due to exclusive policies, the loss of self-worth due to the degradation of personality, or the loss of life due to neglect or terror, calls for reparations as an instrument of restitution assert that there are ways to compensate for the public and private rights and benefits that African-Americans have been denied. As a result of these denials, their access to value and opportunity has diminished, as has also, therefore, their ability to derive personal, communal, or generational benefit from resources and opportunities (Katznelson 2006). As Darity and Mullen write, “It is possible to move their [the formerly enslaved] descendants toward a more equitable position commensurate with the status they would have attained in the absence of the injustice(s)” (3). Restitution, and the forms that it takes within reparations policies, can entail the recovery of the cost for damages committed, and the determination of the value of the lost property, opportunity, and, incalculably, of personhood. Understood in this way, restitution supports the frame of materiality, the relations of African-Americans to the dominant institutions of American life resulting from the effects of social/political policies, as it applies to Black life. Materiality serves as a context, a means and frame by which to analyze and understand the socioeconomic and political dimensions of Black life, and to compare it to mainstream American life, and to consider how that comparison informs the legitimacy or illegitimacy of claims about African-American citizenship. The effects of restitution as a policy goal in response to the destruction of the personhood of African-Americans are incalculable. The traditions and practices of African-­ descended peoples in the West, and of African-Americans specifically, brim with assertions of Black personhood and humanity in the face of white supremacist degradation. Restitution for the damage to the civil personhood of Black Americans (and their Diasporic peers) addresses the unique requirements that would reconcile African-Americans to the United States as state, nation, society, and community. The call for reparations,

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understood as a form of justice, implies that American civilization is inherently unjust. The nation, built on the contradiction between the rhetoric of freedom and the practices of enslavement and genocide, cannot argue that enslavement and genocide are mere quirks of its character or the consequences of flaws in its design; rather, it is clear that racist violence inheres in the nation’s identity and functioning. To once again reference James Baldwin, if the strange grafting (2012) African-Americans were and are subject to are to be recognized through reparations, and restitution paid for the harms committed against them in their historical and contemporary relations, then America would not and could not be America again. Such a change in the fabric of the nation, in the ethical consciousness of the society and in the practice of equality and the embrace of obligation, would evince a different idea of and meaning of citizenship. Indeed this would be a step beyond politics, and more than disrupting a system of order, it calls into question and rejects the fundamental assumptions of said order. An America that asks what it owes its most vulnerable citizens is improved and humane. An America that looks away is ignoring not just the sins of the past but the sins of the present and the certain sins of the future. More important than any single check cut to any African American, the payment of reparations would represent America’s maturation out of the childhood myth of its innocence into a wisdom worthy of its founders. (Coates 2018, 207)

As much of African-American political theory acknowledges, the political life of Black Americans has been a contentious one in which movements, leaders, and ideologies have worked toward the inclusion of African-Americans in this tenuous democracy. They have argued for inclusion on the same terms that are found in the foundational documents of the United States, yet they have also attempted to recognize and maintain the distinctive features and qualities of African-American life, experience, and culture. As Eddie Glaude has written regarding Henry Highland Garnett’s “Address to the Slaves of the United States” (1843), “Garnett’s address … [exposes] the tragic sense of life at the heart of African American politics: that fact that we are constantly having to choose either to identify ourselves with this fragile democracy, struggling for its soul, or to define ourselves over and against it” (2000, 167).

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This chapter has attempted to explore moments in African-American political theory and praxis where the insufficiency of the idea of citizenship and the improbability of the vested experience of citizenship, as understood in its normative practice, comes under critique and the goal of identification with the larger society becomes impossible for African-Americans. The goal is to recognize those critiques of hegemonic American political life by Black people that see it as completely insufficient to the visions of Black life proposed by them. The writings and activism of Martin Delaney and Ida B. Wells-Barnett and the historical and contemporary argument for reparations to African-Americans are examples of the critique, contestation, dismissal, and disruption of the idea of citizenship imposed upon African-Americans. Social nullification, as understood in these examples, is a practice of redefining the assumptions and conditions under which the African-American can or cannot, will or will not, exist in the American machine. It is a refusal of the primal terms of American society and its definition of “citizenship.” The forms of redefinition range from the outright rejection of the compact proffered by the dominant society to a particular practice of citizenship, and from citizenship as a dialectical struggle for recognition to the demand for America to redefine itself through its commitment to restorative justice and addressing the long histories of injustice. As Martin Luther King, Jr., proclaimed, Nobody else can do this for us. No document can do this for us. No Lincolnian Emancipation Proclamation can do this for us. No Kennesonian (sic) or Johnsonian Civil Rights Bill can do this for us. If the Negro is to be free, he must move down into the inner resources of his own soul and sign with a pen and ink of self-assertive manhood (sic) his own Emancipation Proclamation!25

These various expressions of social nullification articulate a firm belief in the power of African-Americans to define themselves in ways that transcend the constraints of American racial narcissism and that leave the results of American legal hypocrisy, economic parasitism, and moral deficiencies, the struggle for its soul (Ibid.), to be addressed by those responsible.

 “Sign Your Own Emancipation Proclamation!” Atlanta, GA, August 11, 1967.

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References Ashbaugh, Carolyn. 1976. Lucy Parsons: American revolutionary. Chicago: Charles H. Kerr. Author Unknown. 2017. Introduction. In Afro-Pessimism: An Introduction. Minneapolis: Racket & Dispatched. Baldwin, James. 2012. Notes of a Native Son. New York: Beacon Press. Bennet, Lerone. 2000. Forced into Glory: Abraham Lincoln’s White Dream. Chicago: Johnson Publishing Co., Inc. Coates, Ta-Nehisi. 2018. We were eight years in Power: An American Tragedy. New York: One World Publishing. Curry, Tommy. 2012. The Fortune of Wells: Ida B.  Wells-Barnett’s Use of T.  Thomas Fortune’s Philosophy of Social Agitation as a Prolegomenon to Militant Civil Rights Activism. Transactions of the Charles S. Pierce Society 48 (4): 456–482. Darity, Sandy, and Kirsten Mullen. 2020. From Here to Equality: Reparations for Black Americans in the Twenty-First Century. Chapel Hill: University of North Carolina Press. Davis, Simone W. 1995. The ‘Weak Race’ and the Winchester: Political Voices in the Pamphlets of Ida B. Wells-Barnett. Legacy 12 (2): 77–97. Delany, Martin. 2015. The Conditions, Elevation, Emigration, and Destiny of the Colored People of the United States. Clifton: African Tree Press. ———. 2017. Blake and the Huts of America. Cambridge, MA: Harvard University Press. Douglass, Frederick. 2000. I Denounce the So-Called Emancipation as a Stupendous Fraud: Speech on the occasion of the Twenty-Sixth Anniversary of Emancipation in the District of Columbia, Washington, DC, April 16, 1888. In Frederick Douglass: Selected Speeches and Writings, ed. Yuval Taylor and Philip Foner, 711–723. New York: Lawrence Hill Books. Du Bois, W.E.B. 1920. Darkwater. New York: Harcourt, Brace and Co. ———. 1935. Black Reconstruction in America, 1860–1880. New  York: Atheneum Books. Foner, Eric, ed. 1983. Black Socialist Preacher. San Francisco: Synthesis Publications. ———. 2010. This Fiery Trial: Abraham Lincoln and American Slavery. New York: W.W. Norton. ———. 2019. The Second Founding: How the Civil War and Reconstruction Remade the Constitution. New York: W.W. Norton. Giddings, Paula. 1985. When and Where I Enter: The Impact of Black Women on Race and Sex in America. New York: Bantam. Glaude, Eddie. 2000. Exodus!: Religion, Race, and Nation in Early NineteenthCentury Black America. Chicago: University of Chicago Press. Henry, C.P. 2003. The Politics of Racial Reparations. The Journal of Black Studies 34 (2): 131–152.

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Horne, Gerald. 2018. The Apocalypse of Settler Colonialism: The Roots of Slavery, White Supremacy, and Capitalism in 17th Century North America and the Caribbean. London: Monthly Review Press. Huebner, Timothy S. 2016. Liberty and Union: The Civil War Era and American Constitutionalism. Lawrence: University Press of Kansas. James, C.L.R. 1938. The Black Jacobins. London: Secker and Warburg, Ltd. Katznelson, Ira. 2006. When Affirmative Action Was White: An Untold History of Racial Inequality in 20th Century America. New York: W. W. Norton. Kelley, William Melvin. 1990. A Different Drummer. New York: Anchor. Kolchin, Peter. 1987. Unfeee Labor: American Slavery and Russian Serfdom. Cambridge: Belknap Press. Malveaux, Julianne. 1973. Review Essay: Revolutionary Themes in Martin Delaney’s Blake. Reviewed Work: Blake, or the Huts of America by Martin Delaney, Floyd J. Miller. The Black Scholar, Vol. 4, No. 10, The Pan-African Debate (July-August 1973), pp. 52–56. Moses, Wilson Jeremiah. 1988. The Golden Age of Black Nationalism. Oxford: Oxford University Press. Northrup, Solomon. 2014. Twelve Years a Slave: Solomon Northrup’s Odyssey. New York: Engage Books. Onaci, Edward. 2020. Free the Land: The Republic of New Afrika and the Pursuit of a Black Nation State. Chapel Hill: University of North Carolina Press. Robinson, Cedric. 1983. Black Marxism: The Making of the Black Radical Tradition. London: Zed Books. Robinson, Randall. 2001. The Debt: What America Owes the Blacks. New York: Plume. Stewart, Randall. When Will We Get Paid? Klondike Publishing. 1969, Track A, Discogs.com, www.discogs.com/The-Staple-Singers-When-Will-We-Be-Paid/ release/9042002 Taylor, Nikki M. 2013. America’s First Black Socialist. Lexington: University of Kentucky Press. Wells-Barnett, Ida B. 2014. In The Light of Truth: Writings of an Anti-Lynching Advocate, ed. Mia Bay. New York: Penguin Books. ———. 2020. Crusade for Justice: The Autobiography of Ida B.  Wells. Chicago: University of Chicago Press. West, Cornell. 1999. The Four Traditions of Response. In Reflections: An Anthology of African-American Philosophy, ed. James A.  Montmarquet and William Hardy. New York: BenGage Learning. White, Ronald C., Jr. 2002. Lincoln’s Greatest Speech: The Second Inaugural. New York: Simon and Schuster. Williams, Eric. 1944. Capitalism and Slavery. Durham: University of North Carolina Press. Wood, Peter. 2020. 1620: A Critical Response to the 1619 Project. New  York: Encounter Books.

CHAPTER 6

Conclusion: The Call of a Different Drummer

I. Like a Blues song, this work started as a feeling and, like the Blues, it started as a feeling that needed to come out. Somewhere between the shootings of Trayvon Martin and Tamir Rice, the increasing circulation of recordings of Black people being killed by officers of “the goddamn”1 law deepened in me a growing, gnawing sense of the absolute failure of the American system of justice to equally recognize and honor Black people. Like many of my peers, this was not a new feeling, as it was for many of my peers; the Rodney King video had served as my Emmett Till flashpoint. Yet the high-profile killings in this new century felt like an event horizon in American race relations. The ubiquity of state-sponsored Black death and the absolute failure of the system to hold accountable those responsible crystallized for me a picture of a total break between Black Americans and the society in which they claimed citizenship. Because of my background as an elected official, the role of policy in this rupture fused with my focus as a concerned professional observer of Black people. I thought not only about the basic public safety issues and 1  Comedian Robin Harris excellently formulated this phrasing in his stand-up comedy recording, Bebe’s Kids (2007).

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the Constitutional right of protection from cruel and unusual punishment and extrajudicial killings, I also reflected on the measurable disparities between the lives of African-Americans and white Americans across a range of social indicators and experiences. The dubiousness of the idea and practice of citizenship for Black people seemed clear. In this book, therefore, my concern has been with what I term the materiality of Black life: those quantifiable aspects of Black social existence, so shaped by social policy, that can reveal the intentions and effects of hegemonic control. Brent T.  White, Simone M.  Sepe, and Saura Masconale’s “Urban Decay, Austerity, and the Rule of Law” serves as a foundation for the idea of social nullification. The article provided risible and concrete examples of the obligations municipalities have toward their citizens. Infrastructure, as a signifier of the state’s upkeep of the physical condition of a community, is a dramatic example of the relationship of the state to its people. White et  al. argue that a municipality’s failure to deliver on basic infrastructural maintenance and public services causes a crisis of legitimacy for governmental bodies and facilitates the erosion of the social contract between citizen and government. In light of the premise that the relationship between citizen and state—the social contract—resides in the provision and support for the material commons of said citizenry, I inserted into an expansive conceptual lens the historical and contemporary disparities in policies and injuries inflicted upon African-Americans. The idea of materiality, measurable determinants of the state’s commitment to its citizens, merged with that of the social contract, generating a consistency of analysis and conceptual framing. Across time, space, endeavor, and engagement with the state, Black life was measurably diminished and marginalized by official decision-making and popular opinion: The notion of Black citizenship rings hollow. Charles Mills’ foundational work The Racial Contract was key to this book’s theoretical project and helped me to analyze the myriad historical ways in which Black Americans have lacked meaningful citizenship. Mills’ conclusion that Enlightenment social contract theory contained inherent anti-Black formulations provided further footing for this line of thought. His argument led me beyond the idea that errancy in the equal application of the law or partisan or racial bias fully accounted for the historical Black American experience of (lack of) citizenship. In my thinking, the fundamental conceptual and practical dynamic of the relationship between Black Americans, white Americans, and the state had taken form and shape and was in need of a name.

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If dehumanization and marginalization were built into the notion of citizenship for Black Americans, through the state’s chronic delinquency in fulfilling its obligations to them as citizens, implemented through the deprivation of the basic services/obligations of the state to them as citizens, historically and into the contemporary moment, then it is no surprise that the diminishment of the material lives of Black Americans is a defining feature of their place within the American social, political, and economic order. All efforts to challenge the normative social order and thereby open up space for Black people to be fully vested citizens seemed to demand America be something that it was not intended to be, nor that it, for the most part, desired to be. These efforts would entail more than disruptions of the social and political order to generate attention to a specific problem and bring pressure for its resolution. These actions would have to be more than making chiropractic adjustments to the body politic. In light of this, my question was, “In what ways have Black Americans responded to this self-evident dilemma?” What I sought was a phrase or a concept to describe and encompass the unraveling of the pact between Black citizens and the white nationalist state, an idea that suggests more than revisions to the texts of freedom, an idea that could also articulate the chasm at the heart of the idea and experience of Black American citizenship. The concept of nullification, though problematic in its historical role as a justification for the maintenance of US chattel slavery and later as a support for Jim Crow segregation, takes on a distinct subversion when we consider it through Paul Butler’s work on “race based” jury nullification. Butler’s work argues that the intentional use of African-American racial consciousness to challenge a racially discriminatory judicial system through the negation of its power by refuting its mechanisms of control and claims of legitimacy. When I read Butler’s work, the pieces fell into place and I felt I could finally sing those Blues (Burnett 1951). How many more years Have I got to let you dog me around? … I’d soon rather be dead Sleeping six feet in the ground.

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II. Here at the end of the long, hot political summer of 2020, against the backdrop of a global pandemic, US society finds itself in the midst of another upheaval, as new names are added to the tragically endless list of Black lives ended by white violence. It is also in the midst of another moment of national reflection, as the nation asks itself yet again: Who are we? The song I have been composing in these pages has now reached its completion, as African-Americans are confronted again with the erasure of their civic personae. White supremacy in the form of American fascism has challenged superficial assumptions about the progress of Black life in America. The tide has returned to the shore and American consciousness and that tide is telling us who it is. Perhaps it is time we believed its words. The recurrence of this tide appears eternal in American life. As James Baldwin wrote, “America sometimes resembles a monotonous minstrel show; the same dances, same music, same jokes. One has done (or been) the show so long that one can do it in one’s sleep” (2010, 99). The events of the Civil War and Reconstruction eras have served as powerful metaphors and parallels for the Modern civil rights struggle. A century after the end of the Civil War, the mid-1960s movement’s breaking of legal segregation through activism, legislation, and policy led to an expansion of African-American access to and opportunity in mainstream America—to, seemingly, a second Reconstruction. Like its historical precedent (or predecessor), this second blossoming of African-American life was met with a violent reaction and the reassertion of the primal racial order of the United States. The rise of Reagan-era Conservatism and the rolling back of the legislative achievements of the Civil Rights era initiated[?] another post-Reconstruction era, in which the achievements of African-American struggle and the efforts to integrate Black communities into the dominant society have been undone. The post-Civil Rights rightward turn of the Democratic Party, illustrated by the Party’s embrace of neoliberal economic policies (including scaling back the social safety net and supporting the War on Drugs) influenced tough-on-crime criminal justice policies, further diminishing the material security of many in the African-American community, despite the high-profile positions of some African-American political, economic, and cultural figures. Neither centrist nor center-left Democratic administrations, regardless of the pageantry of Black care they performed, stemmed the erosion of the

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Black civic position. The conservative waves never diminished; at best, they only slowed for a moment. This situation provokes the question: How many more years must Black America let America “dog it around”? A marvelous hope has fueled the African-American struggle to attain full rights, recognition, and citizenship. If that struggle were successful, a song could be sung: a panegyric to the realization of the great principles of Enlightenment humanism and the democratic ideals of the American republic, which would finally embrace this sojourning people. However, the numbers do not lie. Politicians lie, but the materiality of Black life speaks most honestly about the conditions and possibilities of Black life in America (House 1930). Looky here baby, what you want me to do? … I say I’ve done all I could, honey, just to get along with you. (House 1930)

III. Social nullification—the dissolution/redefinition of the citizen’s relationship to the government body that results from the government’s loss of legitimacy—remains the unfulfilled quest of Black political life. In a sense, it is the proklyatye voprosy, the accursed question of African-American political life and thought—the question that is wrestled with in the long dark nights of American racial winters. What response do Black Americans have to the unrealizable goal of equal citizenship in light of the foundational elements of American society remaining much as they have been since the country’s founding, as have, necessarily, the concomitant racially oppressive systems of power and social organization. The Moebius strip of American life for Black people consists of white supremacy, capitalist exploitation, racial terror, diminished resources and opportunities for African-Americans, and the permanence of the devaluation of Black life and humanity. It maintains an unending loop of Black experience where previous efforts to break it have failed. The concept of social nullification offers a way of thinking about breaking that loop in the form of a radical Black agency. In its radicalism, in the way that it gets to the root relationship of the citizen’s voluntary association with the state, it asks the most basic question of civic life: To be or not to be? Social nullification creates a space where that question can be addressed and the terms of participation may be assessed.

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Social nullification is not the answer to the question; it is a way for the question to be asked. It evaluates the terms of civic life offered by the mainstream and renders judgment on the legitimacy of that offer. Social nullification invites us to inquire about the choices available to African-­ Americans once they reject the monopoly of white American hegemony, over the place in American life expected of Black people, and about the limits of existential possibility imposed therein. Social nullification facilitates a redefinition of Black life in the context of the United States but also a redefinition of Black life itself, beyond these borders. It asserts that Black life transcends American citizenship. It re-­ imagines what every element and feature of Black life means under the assumption is that white supremacy is implacable. The frames and conditions of civil existence imposed upon Black people under the normal operation of US society demand an abnormal exertion to establish an active and vested citizenship for them. This book has argued that, despite efforts in the economic, political, social, civil, and cultural arenas, the most basic analysis of Black life shows that US society is unwilling, possibly unable, to fully and thoroughly address, invest in, and realize full citizenship for Black people. James Baldwin articulates the gravity of this position: What is it you want me to reconcile myself to? I was born here almost 60 years ago. I’m not going to live another sixty years. You have always told me it takes time. It’s taken my father’s time, my mother’s time. My uncles’ time, my brothers’ and my sisters’ time, my nieces’ and my nephews’ time. How much time do you want for your progress? (1989)

Emerging out of my intentions, theoretical and conceptual, and my needs, emotional and political, this work has endeavored to challenge normative assumptions about Black civic identity and possibility, and thereby establish a new platform from which to think about the future of Black American life. This work asks a question similar in impetus to Baldwin’s rhetorical queries: in what new ways, beyond the paradigm of the (American) social contract, can Black Americans think about their progress? In some regard, the superficial success of the contemporary Civil Rights Movement—access to guaranteed voting rights, overturning of formal segregation and discrimination, increased funding for marginalized communities, and expansion of opportunities for African-Americans in the private sector—has undermined our ability to conceptualize Black life beyond

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these formal, legal, parameters. Self-determination, agency, and the conceptions of Black life beyond the frames of the dominant society have been rendered marginal. This work attempts to revive the conceptual frames of Black life independent of the expectations and determinations set by American racial political culture. With the concept of social nullification, I have attempted to establish a doorway through which to conceptualize African-American social-political identity in ways that once again center the needs and aspirations of that community, and not the needs and aspirations of American delusion. Arguably this can only be achieved in the renunciation and/or redefinition of the supposed bonds and expectations held between African-Americans and America. The improbability of this existing relationship is seen in the exasperation of National Basketball Association coach, Eugene “Doc” Rivers: “It’s amazing why we keep loving this country and the country does not love us back.”2 And the limits of this association can be read through Blues artist Son House’s line (House 1965), You know, it’s hard to love someone that don’t love you … You know it don’t look like satisfaction, don’t care what in the world you do

IV. In a powerful moment of national exposure, activist Kimberly Jones articulates the failure of the American state to honor its obligations to African-­ Americans and its rending of the social contract perfectly captures the central emotional impetus of this work. So when they say why do you [Black people] … why do you burn your own neighborhood, it’s not ours … we don’t own anything. Trevor Noah said so beautifully last night, there’s a social contract that we all have, that if you steal or if I steal, then the authority comes in and they fix the situation, but the person who fixes the situation is killing us! So the social contract is broken and if the social contract is broken, then why should I give a shit about burning the fucking Football Hall of Fame. … You broke the contract when you killed us in the streets and didn’t give a fuck. You broke the contract when for four hundred years we played your game and built your wealth. You broke the contract when we built our wealth again, on our own, by our bootstraps, on our own in Tulsa and you dropped bombs on us, when we 2

 NBA Coach Glenn Anton “Doc” Rivers in a media interview (August 26, 2020).

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built it in Rosewood and you came in and you slaughtered us. You broke the contract! … Far as I’m concerned they can burn this bitch to the ground and it still wouldn’t be enough and they are lucky that what Black people are looking for is equality and not revenge. (2020)

The obligations between state and citizen are mutual. When the state does not observe its obligations, what path will the aggrieved citizen take? The paths to which Johnson takes are not ones that ultimately serve the goal of creating spaces where African-Americans can live and grow by their own standards and conceptions. This work is not an attempt to definitively answer the question of how to create those new spaces. Rather, it argues for the legitimacy of an African-American reconceptualization of the role of the citizen in a hostile state. I have attempted to generate theoretical and political paths out of the dangerous and disastrous conditions that America has created for Black people. It is also an attempt to formulate a change of terms in the relationship between African-Americans and the state—a change so dramatic that the consideration of it alone could alter the order of this society. If African-Americans accept the terms of existence, the order of things, and the terms of engagement forced upon them, if the state apparatus continues to maintain the status quo of white racial domination, and if neither African-Americans nor the state are able to reshape this tragic entanglement, then the nation’s ability to realize better versions of itself will fade until what remains is only the blunt reality of its failed existence. As it stands, the relationship between African-Americans and America is unsustainable. The replication of the same exhausted methods and frameworks produces no improvement in the American state. The reiteration of hoary slogans does not expand the definition of freedom for Black people or even acknowledge the reality of the disaffection of Black life. America’s failure to honor its obligations to Black people renders it unworthy of the devotion that National Basketball Association coach Glenn Anton “Doc” Rivers mentions. As it must for a partner betrayed and abused, something has to change. When the illusion that America will fully recognize Black humanity fades away, and the reality of America’s failed promises shines through, we will hear the bluer deeper notes of Black life. After having wrestled through the long night of America’s self-delusion, we will wake in the dawning awareness of Black possibility, and it will be possible to sing new songs. Again like the Blues, despite the darker tones of citizenship for African-Americans, the melody is one that recognizes all the threads of

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African-American personhood, in particular the collective capacity to not only survive but transcend, despair, and degradation. In the end the Blues are joyous in their celebration of Black humanity, affirmation, and freedom (Hawkins and Darnell 1951), You know I’m free, free now baby I’m free from your spell … And now that it’s all over All I can do is wish you well

References Baldwin, James. 1989. The Price of the Ticket. Know Body Knows Productions-­ American Masters. ———. 2010. Black Power. In The Cross of Redemption: Uncollected Writings, ed. Randall Kenan. New York: Vintage Books. Burnett, Chester. How Many More Years? Single Release. BMG Rights Management, 1951, Track B, Discogs.com, www.discogs.com/The-HowlinWolf-Moanin-At-Midnight-How-Many-More-Years/release/3994824. Harris, Robin. Dumb A. Police Bebe’s Kids. Polygram Records, Inc. 1990. Mercury Records. Track A8. Discogs.com. www.discogs.com/Robin-Harris-Be-BesKids/release/3606235. House, Son. Walking Blues. Complete Library of Congress Recording Sessions, 1941–1942. Library of Congress, 1990. Track 3. Discogs.com. www.discogs. com/Son-House-The-Complete-Library-Of-Congress-Sessions-1941-1942/ release/4438222. Recorded May 28 in Grafton, Wisconsin. ———. Death Letter Blues. Father of the Folk Blues. Sondick Music, 1965. Track 1. Discog.com. www.discogs.com/Son-House-Father-Of-Folk-Blues/release/ 11660337. Jones, Kimberly. 2020. Last Week Tonight with John Oliver. HBO Productions. King, B.B. The Thrill Is Gone. Universal Music Publishing Group, 1999. Track A1.Umusicpub.com. www.umusicpub.com/hu/Digital-Music-Library/ album/29150/bb-king-his-definitive-greatest-hits-cd1. His Definitive Greatest Hits CD1. White, Brent T., Simone M.  Sepe, and Saura Masconale. 2014. Urban Decay, Austerity, and the Rule of Law. Emory Law Journal 64 (1): 1–70. Arizona Legal Studies Discussion Paper No. 13-15.

Index1

A An Act Respecting Fugitives from Justice, and Persons Escaping from the Service of Their Masters, (1793), 88n3 African Americans, 8, 35, 39, 57, 85, 128 American Descendants of Slaves (ADOS), 118, 119n24 American Revolution, 31 Aristotle, 20 Articles of Confederation, 43 B Baldwin, James, 121, 122, 130, 132 Biden, Joseph, 66 Black Codes, 43, 54 The Book of Ptah-Hotep, 17

Brown, John, 94, 97, 97n8 Buchanan v. Warley, 69, 71 C Calhoun, John, 44, 45 Citizenship, 1–12, 21, 25–27, 31, 33, 35–37, 40–43, 48, 50, 52–54, 59–61, 63, 68, 75, 81–82, 86–89, 91, 93, 95, 96, 98–102, 105, 108, 115, 116, 118n23, 119n24, 120–123, 127–129, 131, 132, 134 Civil War (American), 45n2, 64, 98, 99, 101, 114, 117, 130 The Crito, 18 Crow, Jim, 43, 54, 58, 69, 78, 116, 129

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. F. Peterson, Beyond Civil Disobedience, African American Philosophy and the African Diaspora, https://doi.org/10.1007/978-3-030-77554-4

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INDEX

D Delany, Martin R., 11, 86–98, 97n8, 97n9, 123 Douglass, Frederick, 8, 102, 102n15, 116n22 DuBois W.E. B., 57, 59 E El Shabazz, El Hajj Malik (Malcolm X), 7, 47, 54 The Eloquent Peasant, 15–16 Enlightenment (European), 11 F Federal Housing Authority (FHA), 73 Field Order No. 15, 114 Fifteenth Amendment, 8, 27, 43, 54, 99, 100n12 Florida v. Bostick (1991), 66, 66n9, 67 Fortune, T. Thomas, 105, 106 Fourteenth Amendment, 8, 27, 43, 54, 63, 69, 71, 82, 99, 100n12, 113, 118n23 The Fugitive Slave Act of 1850, 88–91, 95, 96 G Garnett, Henry Highland, 122 H Hobbes, Thomas, 22–25, 24n4, 27 K Kemet (Egypt), 15 King, Rodney, 127 KRS-ONE, 67n10

L Lincoln, Abraham, 100, 101, 101n14, 114 Locke, John, 22, 25, 27, 31 M Maat, 17 Martin, Trayvon, 127 Medicare Act (1965), 79 N National Medical Association (NMA), 78, 78n23 Nineteenth Amendment, 8 P Plato, 18, 20 Public Works Administration (PWA), 72 R Reagan, Ronald, 65, 119 Reconstruction, 8, 9, 63, 68, 85–123, 130 Redlining, 74 Reparations, 11, 41, 69, 112–114, 117–123, 118n23 Rice, Tamir, 127 Rousseau, Jean, 22 Ruffin v Commonwealth of Virginia (1871), 63 S Saat-Jee (Sarah Bartmann), 75 Scott v. Sanford (1857), 40 Sherman, William T., 114 Slave Codes, 27

 INDEX 

Social contract, 4, 10–37, 40, 42, 48, 50–53, 60, 92, 128, 132, 133 Social nullification, 1–12, 39–54, 98, 123, 128, 131–133 Stanton, Edwin, 114 T Thirteenth Amendment, 27, 42, 43, 54, 61, 63, 66, 69, 82, 99 Tilden-Hayes Agreement of 1876, 99 Till, Emmet, 127 U Underwriting Manual, 73

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United States Constitution, 8, 32, 35, 53, 61 V Violent Crime and Control and Law Enforcement Act (1994), 66 Voting Rights Act (1965), 47 W Wagner-Murray-Dingell Bill (1945), 78, 78n22, 78n23 Wells-Barnett, Ida B., 99, 100, 102, 109, 111, 123 Whren v United States (1996), 67 Wynter, Sylvia, 10, 29, 29n6, 35