Abstract:This article analyses domestic law cases brought by former slaves during the decade following the Civil War. It argues that ending slavery was a long and complex process that included not only granting rights to freedpeople, but also subtracting the incapacities previously imposed by bondage and applying certain rights retroactively. Reconstruction-era judges, throughout the era and across the South, overlooked the realities of slavery as a lived institution. Instead, they reimagined slavery as a collection of… Show more
This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.
This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.
The post-Civil War novels discussed in this essay allow us to see not just the failure of liberal recognition to enfranchise freedpeople but also the legible misrecognition of how humanness is known and lived by Black subjects. By tracing uncanny or syncopated humanness that is manifest most clearly in Black kinship, these novels demonstrate the genre’s ability to represent incommensurate orders of the human. But this very affordance––the novel’s capacity to represent and reflect on contending “genres of the human” coexisting agonistically in the Atlantic world––also demands new theorizing, an account of the genre that does not obviate the multiplicity of the human by presuming a uniform demos. If the novel is to enlarge its potential for democratic thought, it will need to revise the cosmologies and geographies that have heretofore oriented our theories of the Atlantic novel.What are the implications of this discontinuous humanness for the possibilities of democracy? If multiple “genres of the human” coexist agonistically in the Atlantic world, can any novel project a demos that does not obviate that multiplicity?
How does “family” function as an inherently racializing category within liberal political economy? How does this racialized assemblage of enfamilyment function as a way of securing the distinction between governance and the private sphere in ways that enable other formations of governance to be cast as deviant, dangerous, backward, and criminal? What constitutes a political order, and how do processes of racialization enacted by the liberal state mobilize notions of home, family, and gendered personhood in order to circumscribe possibilities for acknowledging other political orders (Indigenous and otherwise)? How might racialization itself, then, be understood as a mode of primitive accumulation?
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