Literature and Law Spring 2020

Haitian Declaration and Constitution : Anti – Slavery

William (Tradd) Stover

I found these two documents really interesting and unique from anything I have analyzed before. I say they are unique because of the cleanly stated, staunch outlaw off slavery that is stated in multiple areas of both pieces. Clearly, those sort of statements do not exist in the U.S founding documents. Rather, America makes claims that can be interpreted in different ways such as labeling all men as free. Well, this raises the question: what is a man?

In the Haitian Declaration, the commander in chief states that slavery is horrific and shall never be practiced again within the first few lines of the work. “Independence or death” is a phrase used multiple times throughout the document. This is interesting because on initial glance, this looks and sounds like something the U.S declaration would say. The idea of being free is relevant, and even crucial, to both nations, but it is simply the connotation of the word “free” that brings about a difference. Haitians want to be free in somewhat of a more literal sense. They want to be free from the chains that have held them down, oppressed, and bloodied their people. On the contrary, colonial Americans want to be free from an overbearing government, one that patriots deem unfair. This similarity in form but difference in context is really interesting and telling of some of the differences between each culture.

The Haitian Constitution is in many ways similar to that of the United States. Most notably, it lists powers that the president, or in this case Emperor shall possess. I noticed that the powers shared between the two are quite similar. The structure of the document is also quite similar to the U.S version in that it is separated into sections with articles. One of the main differences, again, is the clear outlaw of slavery. The second article reads, “slavery is abolished forever’. That is about as clear cut as possible. This idea of what the word free really stands for comes into play once again.

Another blatant and extreme difference is the feelings that these Haitian documents show toward France. The Declaration speaks of “pursuing forever the traitors and enemies of your independence” and “Eternal hatred of France”. There is an incredible theme of revenge here that is much more evident than in the United States Declaration.

These two documents make for an interesting read. I enjoyed comparing and contrasting these from the ones drafted by the U.S. It is striking in some ways how similar, yet fundamentally different these documents are from what I am used to reading and studying. This writing is very powerful and useful still today.

The Property of Whiteness

In “The Property of Whiteness, Cheryl Harris, brings into discussion how the system of expansion and the transatlantic slave trade, was fueled by the overall growing incompetence to control the white labor force. This system created an institution that led to the permanent socioeconomic status of black people within this country as well as the dismantling of the entire Native American land and culture. To be white or the idea of “whiteness”, is to have the wealth and privilege to be able to go somewhere, take land, and people, and call them your property.

White individuals within this country have stolen lands and people and used them for their own gain and profit and this is what Harris wants us to understand. This country was not based on the principles that everyone has rights but that only certain individuals have certain rights, and they may use those rights in order to subordinate an entire group of people. These “rights” are what has kept white people in a position of power for hundreds of years, because they made sure that the establishment of the law would work in their favor.

The idea of Whiteness being property is to understand that being white, benefits you financially, socially, and overall in all aspects of life. But, the term of “Blackness” has zero positive connotation to it. To go out in society and seen as white, you have a clean slate, white a world full of opportunity at your feet whether you realize it or not, but to be black it means to constantly be aware of your surroundings, knowing that as soon as you leave your doorstep you will viewed differently and there is nothing you can do about it. To know that you will have to work 10 times as hard as your non poc counterparts but receive not nearly as much credit.

Founding White America

“Indeed, the very fact of citizenship itself was linked to white racial identity” (285).

To be white was to be free, but the necessity of being white was an unwritten clause in the Declaration of Independence. Harris comments that the “concept of whiteness” was “established by centuries of custom (illegitimate custom, but custom nonetheless)” (280). Harris argues that justice and subsequently equality are heavily dependent on the color of one’s skin. On page 279, she states, “Whiteness was the characteristic, the attribute, the property of free human beings.” Slavery was a system that thrived from the division of color, facilitating the idea that ownership was a birthright of skin tone. There were many continuing underlying issues perpetuating the idea of whiteness as property, but the most notable was the monetary gain white slave owners were earning from their black slaves. I believe it’s also important to note that, while Harris focuses primarily on slavery, these statements transcend the historical timeline to modern day where white privileges are sprouts on the deeply rooted practice of slavery. There is an expectation of inferiority associated with blackness in America, a concept supported and uplifted, according to Harrison, through the perpetuated encouragement of the establishment that was slavery.

The Significance of Native Americans and their History in “Whiteness as Property”

In the article, “Whiteness as Property,” Cheryl I. Harris addresses the racism that has been embedded into the American society as a result of white privilege being protected under the law. Harris introduces her believe that the origin of this phenomenon stems from the justification of whites conquering the land that was once inhabited by the Native Americans. Harris writes, “the conquest, removal, and extermination of Native American life and culture were ratified by conferring and acknowledging the property rights of whites in Native American land. Only white possession and occupation of land was validated and therefore privileged as a basis for property rights” (278). She incorporates the history of whites conquering the land of the Native Americans’ into her argument as an example to further illustrate America’s history of whites’ dehumanization of minorities and how the nation was formed as a result of oppressing a race that whites have deemed as inferior to themselves. From day one, the American society was constructed to favor whites over other races. It was justified for the whites to conquer the Native American land because they felt that they had the privilege to exploit everyone, even though they were living on this land before them. This addition was necessary to Harris’ article because she shows how the American society was built on the foundation that whites are superior and therefore entitled to enjoy privileges that other races cannot. The racism that is prevalent today originates from whites having this self-proclaimed superiority since America’s beginning.

What is sad, frustrating and disappointing; is that over five hundred years have passed since this moment and white supremacy is still prevalent today. The United States is a nation divided by varying racial and political beliefs. Harris is able to use her personal experiences to address the privilege that America’s society has given to whites, dating back to the justification of conquest of the land that once belonged to the Native Americans. But, what can be done to change the ways that whites have been entitled throughout America’s history?

Inconsistencies in Harris’ “Whiteness as Property”

I understand that these blog posts are meant to be relatively short, but the more I looked at the essay given to us, the more it seemed deeply flawed to me in ways we did not have time to go over in class. I realized I had a great deal to say about it and this seemed the place to put it.

Harris makes the argument that “whiteness”, the racial identity of a person as ‘white’ is a form of property in America. To this end she presents several statements that explain exactly what she means. I think these statements are key to understanding the deep logical and ethical problems with her essay and her arguments. She claims,

“Whiteness — the right to white identity as embraced by the law — is property if by “property one means all of a person’s legal rights” (pg. 280)

“Property is nothing but the basis of expectation…consist[ing] in an established expectation, in the persuasion of being able to draw such and such a benefit from the thing possessed.” (pg. 280)

“…those expectations in tangible or intangible things which are valued and protected by the law are property.” (pg. 280)

She further makes a claim that I think is the beginning of the flaws of the essay.

“Although the existence of certain property rights may seem self-evident, and the protection of certain expectations may seem essential for social stability, property is a legal construct by which selected private interests are protected and upheld.” (pg 280)

“It is contended that property rights and interests are not “natural” but “creation[s] of law”.” (pg 280-281)

Harris has essentially done away with ideas of natural law here. Her fundamental ideological claim is that there is no natural law behind things and all of our conceptions of race, identity, and rights are in fact social constructs created by and protected by an arbitrarily constructed human system of laws meant to protect a single groups interests. If we take her statements “whiteness is property of by property one means all of a persons legal rights” and “property is a legal construct” side by side, this becomes painfully apparent.

She doubles down on this point in statements made later in the paper. She vehemently attacks the ideas of natural law and paints them as hypocritical and destructive when she references their usage. She says

“The laws did not mandate that blacks be accorded equality under the law because nature—not man, not power, not violence — had determined their degraded status” (pg. 286)

However, Harris quickly contradicts her initial ideology, stumbling into logical inconsistency. Her entire argument is based on the idea that the treatment of blacks was unethical and transgressed their rights. However, the idea that rights and racial identity are arbitrary social constructs, not the product of natural law, CANNOT be held logically at the same time as the idea that the laws are transgressing the rights of any person or group. It just doesn’t work. If rights are created by the law, then the law cannot possibly fail to recognize someone’s rights because they have no rights unless the law says they do.

You cannot say that the law is failing to recognize rights unless you admit that there is a source of rights which is not the laws of men, and which supersedes the laws of men in a fundamental way. Unless you admit the existence of natural law. But Harris does just that. As we have seen, she has denied the existence of natural law and has attributed the existence of rights to the arbitrary laws of men. There are no “rights”, there is only the interests which the law either protects or does not protect. But in her own essay, Harris laments what she sees as an unjust state of affairs in the modern world and says,

The existing state of affairs is considered neutral and fair, however unjust and unequal it is in substance” (pg. 287)

You cannot attack the idea of fairness, of natural law, and then expect to be able to use fairness in your own defense.

Furthermore, Harris seems to have no qualms whatsoever in appropriating the racial categories she so denounces to make her own points and advance her own ends. She spends some of page 283 and most of page 284 criticizing the way that the American judicial system created the racial distinctions of “White” and “Black” or “Native American”. She finishes the section by saying

In the realm of social relations, racial recognition in the United States is thus an act of race subordination. In the realm of legal relations, judicial definition of racial identity based of white supremacy reproduced that race subordination at the institutional level. In transforming white to whiteness, the law masked the ideological content of racial definition and the exercise of power required to maintain it: “It convert[ed] and abstract concept into [an] entity (pg. 284)

On the very next page, Harris quotes Du Bois, saying

[whites] were given public deference…because they were white. They were admitted freely with all classes of white people, to public functions, to public parks…The police were drawn from their ranks, and the courts, dependent on their votes, treated them with…leniency…Their vote selected public officials, and while this had small effect upon their economic situation, it had great effect on their personal treatment…White schoolhouses were the best in the community, and conspiculously placed, and they cost anywhere from twice to ten times as much per capita and the colored schools. (pg. 285)

She repeatedly uses statements just like this to pain a picture of her supposed current and past white privilege. And lest it be said that she is simply describing the unfortunate state of things, not advocating it’s continued existence, It bears mentioning that there is perhaps no system in law today that more codifies the existence of and differing social status of the racial groups that she so disdains than affirmative action.

She goes on to continue her criticism of white privilege in modern society, which also keeps maintaining the existence and veracity of the racial boxes she criticizes the existence of. She says

Nevertheless, whiteness retains it’s value as a “consolation prize”: it does not mean that all whites will win, but simply that they will not lose, of losing is defined as being on the bottom of the social and economic hierarchy—the position to which blacks have been consigned (pg. 286)

To begin with, this statement seems just utterly untrue. Being white or black makes no difference whatsoever in the life of a homeless alcoholic drug addict who is sleeping in a gutter and eating trash. To claim that white people cannot fall to the bottom of the social and economic hierarchy seems to be either inexpressibly naive, or more likely deliberately misleading.

Secondly, she has again rushed to the use of these exact same categories of whiteness and blackness to make her point. She paints the modern world as existing in this way. Far from arguing for the dissolution of these categories, her every statement validates their existence, making ready use of them. One can’t help but see it as disingenuous at best.

Perhaps the most puzzling of all, Harris claims on page 286

White workers often identify themselves primarily as white rather than as workers because it is through their whiteness that they are afforded access to a host of public, private, and psychological benefits.

This statement seems so impossibly ludicrous to me that I scarcely know how to interface with it in a logically coherent manner. But, here goes. Racial identification in the workplace is something that is asked and/or required only in light of affirmative action these days. It isn’t white supremacists who made it a requirement for job applications to have those “voluntary” self identification forms on them. Furthermore, I invite anyone who has worked many working class jobs, as I have, to think if they have ever heard anybody going around talking about how wonderful it is to be white, how proud they are of their whiteness, how it is their whiteness that defines their life, rather than their job (or anything else for that matter), or touting the benefits accorded to them as white. The only time anybody in those positions ever asks a worker to racially identify is when affirmative action requires them to do so.

Harris also makes claims that seem to me to be obviously untrue about how the law deals with racial minorities and what she calls “oppressed” groups. Harris states

“[The law] has refused to recognize group identity when asserted by racially oppressed groups as a basis for affirming or claiming rights.” (pg. 287)

As we’ve already discussed, Harris doesn’t believe in rights and has no business talking about them at all, but even if she did, this statement would still be nonsense. The Civil Rights Act of 1964 does this implicitly and explicitly. The Fifteenth Amendment to the U.S. Constitution reads

“The right of citizens of the United States to vote shall not denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

More examples could be provided, and easily at that. Her statement is obviously untrue at every single level of government.

The logical and moral inconsistencies of Harris’s arguments are most clearly visible in her closing ideas about affirmative action. She says,

“[Affirmative Action] directly confronts the notion that there is a protectable property interest in whiteness” (pg 289)

If property is nothing but the expectation of being able to draw some advantage from the thing possessed, as Harris claims on page 280, then what Affirmative Action is doing is not in fact confronting the idea that there is a protectable property interest in whiteness, unless by that you mean it creates a protectable property interest in blackness (or other racial minority-ness). It creates an advantage, defined and protected by law, extended to those of racial minorities, which they can expect to draw from their racial “property”/identity. It hasn’t changed the idea at all, just taken the same tool Harris protests against and uses it again, this time in her favor. It isn’t morally superior, it is just the other side of the same coin.

Her justification for doing so is found on pages 288-289. She claims

“Fundamentally, affirmative action does not reestablish a property interest in blackness because black identity is not the functional opposite of whiteness. Even today, whiteness is still intertwined with the degradation of blacks and is still valued because “the artifact of ‘whiteness’…sets a floor on how far [whites] can fall.” Acknowledging black identity does not involve the systematic subordination of whites, nor does it even set up a danger of doing so. Affirmative action is based on principles of antisubordiantion, not principles of black superiority.”

What is hiding behind this storm of confusing words is the core idea that “It’s wrong for white people to view their racial identity as property because they did/do it as a means to oppression of blacks. It’s okay for black people to view their racial identity in the exact same way (we won’t use ‘property’ to describe it), because they are the oppressed.”

No.

That’s not how logic works.

That’s not how morality works.

You cannot claim that it is wrong for one people to encode their racial identity into law to draw advantages from it, and then allow another race to do so. This is the very definition of racism, which she is claiming to denounce while she actively advocates doing something she has claimed is racist. By her own logic, by her own definitions, she is deeply inconsistent with her own ideas of property and racial identity.

Jefferson and Locke

When we were discussing the Enlightenment thinkers who inspired Jefferson in his penning of the Declaration of Independence one question stood out in my mind more than anything else: Why did Jefferson change Locke’s original quote of …”life, liberty, and property” to “…life, liberty, and the pursuit of happiness”? It could be argued that Jefferson was attempting to update Locke’s century-old ideas of government and its duty to the people and apply it to the unique dilemma which presented itself to the Continental Congress for the first time. The idea of a free nation, in which one could pursue their own personal happiness without having to bend under the weight of imperial rule is one that is uniquely American at the time.

I did some additional research into the topic expecting to find that this was the case, but as it turns out it is most likely a phrase borrowed once again from Locke. It is interesting that many of the ideas on which this nation was founded stem from the philosophies of English political thinkers. Despite the weight that the “American Experiment” held for England and the rest of the world, the ideas behind its foundation are surprisingly English.

Locke’s concept of the pursuit of happiness rises above the purely selfish or hedonistic ideas that many draw to mind and is described as “the foundation of liberty”. The freedom which Locke describes is one that stimulates the mind of the populace and frees them from the enslavement of their unfulfilled desires.

Just because the ideas contained within the Declaration of Independence may not be native to the U.S. doesn’t mean that they are any less American. The colonies’ decision to free themselves from British imperial rule was something that had never been attempted at the time, and the foundations of the nation were based on the individual freedoms that they felt were ignored under the rule of Britain. Although the ideas and writings of Locke were British, the actions that they inspired and continue to inspire are ones that have no border.

The Property of “Whiteness”

This set of prose was especially interesting to me as I had never read an article where the idea of privilege and institutionalism was directly related to the property of citizens, also known as “whiteness”. The author, Cheryl I. Harris, goes into detail about how whiteness is property based on the laws of America and having that particular amount of property, gives you the advantage above most people who don’t have it. The author defines whiteness as “the characteristic, the attribute, the property of free human beings…” (279). It is so important to begin with the definition of the advantaged within our country before we understand why that is.

Property and the advantage during this time is described as wealth and privileges. The idea that the government is there to protect your property at any cost during this time is not only biased but just blatantly racist. In this article we can understand that even poor white people had more of an advantage than free African or Native Americans. This means that the whites would have had more support and rights than anyone else even though they might own less property. For example, whiteness was seen as “-the right to white identity as embraced by the law-is property if by ‘property’ one means all of the person’s legal rights” (280). Overall, the property of their “whiteness” gives them the leverage needed to create a great life and social status.

Even according to Harris, although “blackness” is organically property, it is not looked at the same way that “whiteness” is. The advantage is that the whites, since the beginning, have dominated other races, even buying them as property. Therefore, “It is contended that property rights and interests are not “natural” but “creation[s] of law” (280-281). To explain, the only reason other races have been put down and are considered disadvantaged, was all based on the laws of our country. For example, slavery, sharecropping, etc. were all legal ways of life, supporting the white idea of gaining social status by owning and the repression of other races.

Presentation Versus Representation

In hindsight, the historical context from which I analyzed the US Declaration of Independence is quite lacking in comparison to the literary perspective. The most prominent thing that I kept coming back to was the emptiness of the wording used. Phrases such as “one people,” all men are created equal,” and “powers from the consent of the governed.” I see all of these as merely a presentation; they do not truly represent the “one people” of the US. These were written down to provide a sense of unification, equality, and shared power — in reality they are far from that. This entire document is put on as a sort of act to show power in writing rather than in action. While this document was written and published no actions were made to ensure what was said was enforced. This declaration presents representation where there is none to be found.

Going back to the second phrase I quoted, “all men are created equal,” there enslaved West Africans who would have disagreed. Calling upon the erasure poem “Declaration” by Tracy K. Smith, there is a line from this poem that reads “We have reminded them of the circumstances of our emigration and settlement here. –taked Captive — on the high Seas — to bear–” (Smith). The irony being that this is the exact words of the Declaration the founding fathers wrote. Yet they could not see that they too were the same as they they enslaved. In my opinion, it was an insult to write such a phrase as “all men are created equal” as a presentation to the world how just the US is, while in reality, when it comes time to represent what they wrote, such justice is merely spilled ink.

Smith, Tracy K. “Declaration.” Poetry Foundation, Graywolf Press, http://www.poetryfoundation.org/poems/147468/declaration-5b5a286052461.

Issues within the DOI: What isn’t taught in middle school history class

Jacques Derrida’s “Declarations of Independence” calls one of the most well-known and accepted historic documents, the Declaration of Independence, into question. In Derrida’s piece, he critiques and discusses overlooked flaws within the DOI. One of these flaws being whether the DOI is truly representative of the People. The word “We” is used over and over again throughout the document, but who exactly is We? When I had first read the DOI, I assumed that this “We” meant that it was a consensual declaration, inclusive of the People and the government. However, reading it now, I am questioning if that is true.

At the beginning of the document, it seems more inclusive, they are using We in a way that might make one believe these really are the feelings and wants of everyone. The beginning of the DOI includes the phrase, “one people” which adds to this feeling of inclusiveness. However, towards the end of the document, it becomes a different type of We; a We that only includes Congress. For example, the start of the last paragraph of the DOI states, “We, therefore, the Representatives of the united States of America, in General Congress, Assembled…” The We in this section is defined as solely being the Representatives of the United States of America, who are writing on behalf of the People. Derrida describes this exclusiveness by stating “They speak, declare themselves and sign in the name of…” (Derrida pg 9). This creates a feeling of distance between the People and the government, and makes me wonder if the DOI can really be considered a legitimate and even legal document at all.

Derrida voices in his piece that the power lies in the signature, but since it is only signed by members of state congress, can it really be considered a document for and by the People? Derrida also calls into question the idea of timing, “Is it the good people have already freed themselves in fact and are only stating the fact of this emancipation in [par] the declaration? Or is it rather that they free themselves at the instant of and by [par] the signature of this Declaration?” (pg 9). This is an interesting idea to consider, because the People were not sitting beside those composing and signing the DOI, so were they already considered free from Great Britain or awaiting this document to be released to be proclaimed free? I never really gave much thought to the issues Derrida raised, and just assumed that a document like the DOI would be flawless.

Whiteness as Property

William Stover

I found this to be a really interesting take on an issue that has been discussed quite often recently: the idea of white privilege and white institutionalism. This in- depth description of whiteness and “the others” stands out from other pieces that I have read because of the concept of property. The writer makes a point that I never really considered when reading or referring to the constitution: whiteness is seen as property so that it can exclude and remain to itself. It is something that was sought after due to its implications of wealth, class, and a variety of other characteristics deemed to be pleasant. Certainly, her ideas force me to look at the Constitution in a bit of a different light. It makes me think more deeply about some of the concepts introduced by our founding fathers.

Here, the writer speaks a great deal about the founding of the United States. She speaks of the importance of “natural law” that usually has a rather nonmalignant connotation. However, Harris writes that this idea of natural law was something made up so that whites could be separate from and more powerful than other races, and have the law to back that behavior up. She mentions that whites tend to see natural law as positive and important without understanding that these purposefully implemented laws were used to kick out natives and to put down blacks, all by giving undeserved power to the white race. Harris uses many gruesome examples of colonial theory such as the utilization and exploitation of black women to sort of breed slaves, among other ideas.

Property is associated with ownership, with wealth, with class, and with privilege. It is something that cannot be tampered with or taken because it is inherently “yours”. The law tells us that. From Harris’s work, I take it that she is bothered by the idea that one could be born into a private, privileged group simply because of their complexion and family roots. She points out that because of the protection of whiteness as a form of property, it forces others to be intruders or at least put into a separate, less than realm.

There is a ton of history, some dark, written about in this piece. Given that, it was a lot for me to digest. However, I feel like the ideas presented are fair ones and should be discussed. There is something about the work as a whole that is off-putting for me, and I kind of feel like the writer does a lot of grouping. I am not going to say that she is wrong about anything she discusses (I think she has great ideas), and I absolutely feel more educated about the topics presented, but it was a bit difficult for me to get through at times. Overall, I think the ideas brought forth were interesting, complex, and begging to be discussed.