The Public Interest

“Matters of color” –blacks and the constitutional order

Glenn C. Loury

Winter 1987

IN HIS TREATISE on the early development of American legal doctrine affecting slaves, U.S. Circuit Court Judge Leon Higginbotham observes: “This new nation, ‘conceived in liberty and dedicated to the proposition that all men are created equal,’ began its experiment in self-government with a legacy of more than one-half million enslaved blacks—persons denied citizenship and enslaved, not for criminal infractions, but solely as a matter of color.” The United States, in other words, was born with the burden of a sinful, “peculiar” institution which belied the very ideals the Founders sought to affirm. That a group of colonialists, proclaiming themselves fathers of a new nation built on Jefferson’s “self-evident truths,” were prepared to legitimate in law the brutalities requisite to a commerce in human beings is an irony that forms the heart of a powerful indictment of the American legal tradition by Judge Higginbotham. He goes on to cite a conversation with Earl Warren shortly before the Chief Justice’s death, in which the two jurists agreed that “there is a powerful nexus between the brutal centuries of colonial slavery and the racial polarization and anxieties of today. The poisonous legacy of legalized oppression based upon the matter of color can never be adequately purged from our society if we act as if slave laws had never existed.”

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