SuggsJonChristi 2000 Introduction WhisperedConsolations

Introduction
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Signifying, Epistemology, and

Ontology in Law and African
American Narrative; or,
A House of Laws on Fire
“Guilty, or not guilty?” demanded the judge.

“Not guilty,” replied John. “I’ve owned that wagon ever since it
was a wheelbarrow.”
Traditional—Texas
Innocence and irony fall under the law like feather and shot. In the
everyday world one plummets, the other wafts. In the laboratory of the
law each falls with equal weight, its measure taken. In the study of law
and fiction in African American life, I have found myself tracking inno-
cence and irony. Both are romantic. The American nineteenth century,
romantic at its core, both insisted on and rejected the essential inno-
cence of African Americans while ignoring the irony implicit in their
position and central to their identities. The American twentieth cen-
tury, no less romantic although at times less visibly so, dropped the
insistence of innocence in African American life and gradually
embraced its irony. These stances, or rather the records of them, are
found in the annals of American law and in the texts of African Ameri-
Copyright 2000. University of Michigan Press.
can narratives. It is the job of this book to try to interleave narrative and
annal.
When I first encountered Ralph Ellison’s 1976 essay, “Perspective of

Literature,” written for a volume on American law, I was both inter-
ested and apprehensive. Interested because I was trying to find a place
to start my inquiry into the relationships between American law and
African American literature, apprehensive because I might find that
Ellison had already said what needed to be said. I had not found any
substantive discussion of the relationships anywhere else, and for all I
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2 Whispered Consolations
knew it was because the word was out to everyone but me that Ellison
had already been there, done that. To my surprise and, I must admit,
relief, I discovered that if Ellison was to be my gauge, then African

American literature’s ongoing critique of American law was not only
an untold story, it had been largely invisible to even the most impli-
cated observers.
Ellison writes, as he opens his discussion:
Recently a television dramatization of the Scottsboro case presented

one of the judges that sat on the case as its hero. I was made aware
of the snarl of personal and public motives, political and private
interests, which had become the focus of the case. I was aware of
the many factors locked in contention in the name of the purity of
white womanhood, and as a writer I came to ask myself just why it
was that American fiction had given so little attention to the law.
(“Perspective” 325)
We now know that American fiction has indeed addressed “the law” in
considerable detail. Even Ellison goes on in the essay to discuss such
texts as “Benito Cereno,” Adventures of Huckleberry Finn, Pudd’nhead
Wilson, Bartleby the Scrivener, Moby-Dick, the novels of Henry James,
and the Constitution, which he characterizes, quoting Paul A. Freund’s
words, as “a work of art in its capacity to respond through interpreta-
tion to changing needs, concerns and aspirations” (330).
But Ellison fails to mention even one work by an African American
writer in his survey of the common ground of American fiction and
American law. His discussion takes place as if no black American had
ever written, even as he notes the ironic twists of law and culture that
could make a lynching Scottsboro judge a hero. How could this have
been so in 1976? And on what premises did he decide to reprint, unre-
vised, such a survey a decade later? Might Ellison argue that black
Americans are untouched by the law and so are outside the purview of
his exercise? That seems not to be his point, since fully half of his essay
is devoted to showing how “race” emerged as a motif in American life
from the arguments of the Declaration of Independence and the Con-
stitution. He even notes that the multiple variations of such a motif do
not necessarily translate into citizenship under the law: “Afro-Ameri-
cans were strictly limited in their freedom to participate in the process
of government. We could obey or break laws, but not make or interpret
them. . . . Nor was it possible for me to ignore the obvious fact that race
Introduction 3
was a source of that rot [in the law], and that even within the mystery
of the legal process, the law was colored and rigged against my people”
(“Perspective” 321–22).1
Ellison argues that law and fiction are alike in that each consists of
symbolic acts and each has some connection to defining social order.
“Perhaps law and literature operate or cooperate,” he writes, “if the
term is suitable for an interaction that is far less than implicit; in their
respective ways these two systems . . . work in the interests of social
order. The one for stability—that is, the law is the law—the other striv-
ing to socialize those emotions and interests held in check by manners,
conventions, and again, by law” (“Perspective” 329).2
Yet then to exclude from discussion any examples of literature
written by black Americans seems peculiar. It is as if the transgressive
characteristics of African American fiction are too strong to be con-
tained comfortably within a symbolic system conceived of as “striving
to socialize” disruptive emotions and interests. Ellison reaches for
some accommodation of that transgressive power in quoting another
passage from Freund:
Does not law, like art, seek change within the framework of conti-
nuity, to bring heresy and heritage into fruitful tension? They are
not dissimilar, and in their resolution, the resolution of passion
and pattern, of frenzy and form, of contention and revolt, of order
and spontaneity lies the clue to the creativity that will endure.
(“Perspective” 329)
Although he says he cannot completely embrace Freund’s position,

Ellison wants to retain for the literary artist the right to “yell ‘Fire’ in
crowded theaters” (330). That being the case, must we conclude that
Ellison believed no African American writer ever warned the nation
that its house of laws was on fire? Even if he looked no farther than his
own lifetime, might he not have named Langston Hughes, Zora
Hurston, Richard Wright, William Attaway, Willard Motley, Ann
Petry, Chester Himes? Himself? Is Ellison innocent of the implications
of his omission? Or is this just another irony of African American life
under the law?
The purpose of this book is to consider how law and narrative, primar-
ily fiction, combine in African American life. A few years ago, in pur-
suit of material for a course in law and literature, I was brought up
short by the absence of any critical attention in print to this question. As

a consequence I wrote an exploratory piece on law and epistemology in
some African American fiction (Suggs, “Epistemology”). Because I

wanted to discuss the work of novelists and of legal scholars whose use
of literary devices to explore questions of legal history and theory I
found suggestive, I used a very broad definition of fiction in that pre-
liminary essay. That expansion led me part of the way into the investi-
gation that became this thematically oriented, but historically situated,
study. In it I have generally replaced “fiction” with “narrative” to
encompass the discursive practices I have found most provocative.
Not all of the theoretical questions that inform this study are
explicit in its realization. I will only mention briefly those which most
centrally affect the story of an African American critique of American
law. Central to all of them is the very basis of law in narrativity, the con-
dition that the relationships under consideration in any construct of the
law are accessible only as story, as a story told by someone to someone,
and this is as true for legislation as for litigation.
The compounding problems of authority over and ownership of
the text are also crucial; when proslavery whites, ante- and postbellum,
wrote of the lives of those they had enslaved, who owned the story? For
that matter, when abolitionists wrote or edited fugitive slave narratives
as fact or fiction, who owned the story? Harriet Stowe or Uncle Tom?
Harriet Jacob or Lydia Child? In the law, the question is similar. When
there can be no black voice in the court and no black hand drafts the
legislation, who owns the legal narrative of slavery? Of Jim Crow? The
legally enforced illiteracy of enslaved blacks in America further com-
promised the question of the ownership of the narrative of slavery.
Who and what authorizes ownership of the narrative? At what
point do you lose control of your own story? In a peculiar case of dou-
ble indemnity, or serial appropriation, William Styron was pilloried by
Jews who complained that he had violated the exceptionality of the

Holocast with the Catholicism of his protagonist in Sophie’s Choice and
by African Americans outraged over his portryal of the protagonist in
The Confessions of Nat Turner.When Jeffrey Masson sued Janet Malcolm
over her representation of him in a 1983 New Yorker profile, the case
hinged on the extent to which her appropriation of his “voice” violated
his ownership of his right to tell his own version of the story. Both Sher-
ley Anne Williams and Toni Morrison have raised the question of the
ownership of the text in contemporary accounts of North American
Introduction 5
slavery by calling their readers’ attention to the role of white male

amanuenses inscribing the lives of enslaved women of color in the
antebellum South.
In a 1990 PMLA article, William L. Andrews noted that one task
facing black writers of antebellum life was the creation of an autho-
rized, authentic narrative (“Novelization” 23). One of the arguments of
this book is concerned specifically with the complexity of that task in
that the position of enslaved Africans in North America was socially
and culturally inscribed in part by the denial to them of the capacity for
“authenticity” by white romantic notions of identity. The formal denial
of any self-authorized legal narrative to enslaved people and the severe
circumscription of the legal statuses of free people of color are well
known. Thus the establishment of an authorized African American nar-
rative of any sort was problematic.
However “authorized” we might find any narrative, some post-
structural readers might discover that under scrutiny all texts break
down into incoherence and we might be better off prizing them for the
risks they take or the panache with which they deconstruct themselves
rather than for their authenticity or fidelity to reality or the integrity of
their representations. Even if we don’t completely accept the decon-
structive moment as the end of all texts, we do have to look for a
moment at one poststructural assumption: that language refers to itself
and its system more than it refers to any “reality” outside the language
system itself. That is, language isn’t about things; it’s about other
words. Let’s look at Ellison, above, as he quotes Freund on the Consti-
tution: “a work of art in its capacity to respond through interpretation
to changing needs, concerns and aspirations” (“Perspective” 330).
Are Freund and Ellison suggesting that the words of the Constitu-
tion are malleable in their meanings? Freund seems to suggest that he
believes works of art mean different things at different times or under
different kinds of scrutiny. He doesn’t say what kinds of scrutiny but

they seem to be those that emerge from needs, concerns, and aspira-
tions that were not those of the artist. He is willing to grant the Consti-
tution the status of art because it, too, offers up different meanings to
different scrutinies. Poststructuralists, however, would say that all nar-
rative, not just “art,” has this characteristic and that Freund’s belief in
the exceptionality of art based on its ability to fix or release itself in rela-
tionship to meaning is mistaken. The error notwithstanding, the status
of foundationalist texts in African American readings, particularly in
the nineteenth century, is grounded specifically in this problem of how

the Constitution and the Declaration of Independence threaten to offer
up different meanings to different scrutinies.

Epistemologically, we are on shaky grounds if we want to know
the truth at the end of a legal “event,” whether trial or text. Think for a
moment of the Simi Valley, California, trial of the officers who arrested
Rodney King. Advocates for King were sure they knew what hap-
pened. Wasn’t there a video of the whole arrest? After the defense got
through with that tape, King was lucky not to have been charged with
felonious assault as well as resisting arrest. The outcome of any case is
what the grammar of the law will allow to be said about the conflict in
question.3 The court’s desire, its charge, is to eliminate as much dis-
crepancy between what actually happened and what can be said about
what happened from the closure of the text of the case.
In African American narratives responding to the law’s grammar,
many voices choose to remain silent; others deliberately choose proofs,
a grammar, and a vocabulary oppositional to the demands made by the
court; others hypostatize the court’s own language and elaborate its
grammar. This production of a counterpositioned narrative to the law’s
story reveals the historical experience of blacks in America, that since
the pursuit of judgment does not require that the entire story be told,
law’s closure is illusory. Just as the law as narrative often privileges the
right of one or more of its narrators to withhold parts of the “whole”
story, such as a defendant’s prior criminal record, the historical legal
narrative of African American life, from the slave coffle to the Supreme
Court, is to a large part constructed on omission, on the ability of white
legislators, lawyers, judges, policemen, and property owners to pre-
vent the emergence of any narrative of African American life other than
that which they authorize and narrate.
Finally, it is a truism in literary studies generally that narrative is
also driven by character. In most realistic narrative, in which plausibil-

ity reigns, we readers must be able to imagine that the character of the
protagonist produces the action that is powering the plot at the
moment. But character/action relationships in fictions are reciprocal,
and therefore our usual expectation for realistic fiction, and for the
novel in particular, is that we see some evidence that action through the
plot produces some perceptible change over time in the character
under scrutiny. But character in the law functions more like setting
than like character in the realistic novel. (Unless one were a deeply
Introduction 7
romantic novelist determined to present nature in harmony with your

protagonist’s emotions, so that it rains at funerals and coveys of quail
take wing at every orgasm, giving setting the [e]motive force of charac-
ter would be a serious burden to place on narrative.) The case in court,
however, is driven by the act, not by character. You may not be con-
victed, in any formal sense, because of who you are. Character is estab-
lished through testimony and is fixed in the legal narrative in the same
way a grove of trees or a sandpit is fixed in a realistic novel. It is the
context in which the act is presented, not the motive force behind the
act.4
Thus the character of Larry Flynt, for example, is irrelevant to his
standing before the court and under the First Amendment to the Con-
stitution. So it is not necessary or useful to show if or how his character
changes, in the pursuit of judgment in the suit brought against him by
television evangelist Jerry Falwell. But in the film made about him, The
People vs. Larry Flynt, which culminates on one level with that case, our
moviegoers’ judgment of him is based on what we understand of his
character as its formation was represented to us in the course of the
film. We find for him on the basis of our affection for his character as
revealed to us.5
These questions about individual character and the differential
privileging of the role of character in specific judgments are not the
same as those about racially stereotyped ascriptions of character to
classes of defendants, plaintiffs, or victims. If no one expects to see a
change in character during the course of a trial-as-narrative, that is not
the same as assuming that the racial chracteristics that the defendant
exhibits at trial are immutable and causal; rather they need to be under-
stood as the products of history, training, an ironic vision of life.
Charles W. Chesnutt contemplates the issue with no little irony in
his 1899 short story, “The Web of Circumstance.” In the scene in which
Ben Davis is sentenced to five years in prison for larceny just after a
white man has drawn only one year for manslaughter, Chesnutt
observes:
Human character is a compound of tendencies inherited and

habits acquired. In the anxiety, the fear of disgrace, spoke the nine-
teenth-century civilization with which Ben Davis had been more
or less closely in touch during twenty years of slavery and fifteen
years of freedom. In the stolidity with which he received this sen-
tence for a crime which he had not committed, spoke who knows
what trait of inherited savagery? For stoicism is a savage virtue.
(260)
We will see that the presence of such attitudes toward African

Americans in the courts, based on assumptions about African Ameri-
can character, affect African American narrative’s critique of the law in
somewhat predictable ways but in some surprising ways as well. As
black writers in the nineteenth and twentieth centuries struggle against
the romantic assumptions about African Americans held by most
whites through the attempt to create “authentic” characters in authen-
tic narratives, we will see them struggling also with the competing
view of African Americans seen by whites through the lens of the law.
Given the complexity of the issues I have just raised, it is impossible in
this study to undertake a comprehensive account of the relationships
among African Americans, their narrative practices, and the law under
which they have labored. The story of “the law” in, and in relationship
to, black popular culture alone would require multiple volumes.
Beyond that, however, lies a more basic problem. As we recover the
texts of a repressed literary past, the attempt at definition emerges as
Sisyphean. It is a fool’s errand to attempt to bring back any determined,
essentialist text of African American life. My research uncovered nov-
els and stories, cases and treatises that have yet to be discussed in any
venue, not even this book. These versions of the life of the Race will, I
am sure, eventually shape and give texture to some canon, literary or
legal. In the meantime, I can only suggest, with attention to some the-
matic concerns in literary narrative, some questions about how it is that
law and narrative interact to make meaning among the diverse posi-
tions of African American subjectivity.
While white American literature reserves a genre category or two
for stories grounded in law—and ghettoizes those stories in separate

review columns and bookstore and library sections—“classical”
African American literature is universally grounded in law; in fact, all
African American fiction carries the question of the legal status of
blacks as its subtext. Whether one begins with slave narratives or inter-
sects the historical line at the onset of the Black Aesthetic in the 1970s,
the conflict between the substance of African American life and the sta-
tus of that life under the law is the heart of the narrative challenge.
Even when a Walter Mosley or Chester Himes writes a genre novel, say
a detective story, the issues are identical to those at the center of the
Introduction 9
novels of Chesnutt, Delany, Harper, McKay, Hurston, Bambara, and

Morrison.
How radically this situation differs from that of white American

fiction cannot be overstated. The law’s ability to shape—its historical
force as the sole yet ever elusive determinant of African American
social identity—presets the narrative base for all African American fic-
tion. It might not be too much to say that much of what any of us, black
or white, might understand by the term Black Americans, insofar as that
status reflects a condition of citizenship, is not only socially constructed
in a culture that masks its class determinants under mythic narratives
of romance and individualism, but is determined and redetermined by
the law. Consequently, there may not be a single novel in classical
African American literature that does not contain a significant treat-
ment of the question of the legal status of African Americans or have as
its assumed and even unspoken ground the struggle over that status.
William L. Andrews separates the narrative voice of fiction from
those of slave narrative and black autobiography. Because one argu-
ment of this study is that the center of all African American classical
narrative is the question of legal status as a real and as a fictive condi-
tion, I will resist that set of discriminations. Andrews helpfully points
out in the same article, however, a definition of fictive, borrowed from
Barbara Herrnstein Smith (23), that sends me back to the earlier discus-
sion of basic relationships between literature and law in this introduc-
tion:
The marginal world of the earliest black American novels may be

usefully termed a fictive world [as Smith] applies “fictive” to the
subjects and objects of representation in various “mimetic art-
forms” like poetry, the novel, or the drama. What is re-presented in
these types of literary discourse are not “existing objects or events”
but “fictive member[s] of an identifiable class of natural (‘real’)

objects or events.” (Andrews, “Novelization” 26)
But at the center of African American fictive narrative, as at the

center of law’s fictive nature, is not just the inscription of imagined rep-
resentatives of an identifiable class of objects and events but of an identi-
fiable class of relationships. I hesitate to attach Smith’s qualifiers “nat-
ural (‘real’)” to the word relationships here because of the very relativity
of relationships and the subjectivity of every description of them. That
is, in the simplest relational structures the dyadic positioning of the
participants invites conflicting analyses. For everyone on top, there is a

someone on the bottom to whom the relationship feels quite different,
although every bit as real and perhaps even natural. And it is this rep-
resentation of relationships that is the structural core of the narratives
we are going to try to examine. That difference of experience with the
relational is what law and fiction negotiate; African American narrative
fiction in particular negotiates that experience and at the same time
interrogates law’s negotiation of it.
To a considerable extent, in fact, one obvious interaction between
the various texts of the law on one side and the various narrative cate-
gories of African American life is the interrogative effect of each narra-
tional “event” on the other, an intertextual function. When one is read
through the lens of the other, a third text emerges, as through a dialec-
tical interrogation between oppositions. I would, however, modify the
intellectually bureaucratic and linear tone that “intertextuality”
imposes on what is actually a complex weave of interactions with the
word signifying. My reasons for doing so are set out in Henry Louis
Gates Jr.’s Signifying Monkey. Gates points out that the objects of his
attention are African “metaphysical systems of order” in general and
the act of signifying in particular. Signification, as Gates derives the
meaning from experience and theory, means to comment on and
through another discourse with your own more empowered one. He
notes the stories of the mediator figure Esu and suggests that as the
tales encode myths of man’s relations to gods and humanity’s place in
the cosmic order, they at the same time embody and utilize language
above ordinary language (4–6).
I am going to write as though what Gates says is true of the rela-
tionship between law and African American literature in the following
ways. First, both law and literature “encode man’s [sic] relation” to his
gods, including those secular forces he obeys, and place him in the
order of the cosmos of meaning as he sees it. Second, both law and lit-
erature operate at the level of meaning-about-meaning, meta-ontology,
that captures what Gates describes as having been embodied in the Esu
tales. Finally, when one is used as the device through which the other is
read, the device signifies “on” the object text, speaking/reading
through it and creating a third text that is a text of the experience of that
particular reading. So American law and its history, in their particulars
as well as in the shape of their combined presence in the national expe-
rience, take on new identities, hold new meanings, when the experi-
ence of the African American “nation” as embodied in its narrative fic-
Introduction 11
tion is used as the device through which case and statute are read. Even
more dramatically, African American literature exhibits new concerns,
other complexities, makes unheard statements in response to the inter-

rogative signifying of the law.
So, to some extent, this work is a preliminary study of signifying
on the law and of law as signifying discourse. It is also a theoretical and
historical study of the relationships between two social texts, and it
proceeds from the premise that both law and literature are mutually
and inextricably responsible for writing the larger texts of social reality
that define a period or region in American life. One attempts to under-
stand how the dynamics of production of these two social texts define
a historical or cultural moment by reading the interrogations of each by
the other, watching the signifying make the real.
One consequence of reading such interrogations is to shift our gaze
from the privileged inscriptions of social reality that are the products of
the lives of white writers of legal and fictive discourses to the writing of
African American experience, where lives, practices, and literatures
are, even at this late date, still less familiar. This is particularly true with
relationship to the lives of black Americans under the law. African
Americans writing in the law and about the law offer an interrogative
text that constitutes a parallel narrative often quite at odds with the
canonical narrative of white American life. A study of that parallel nar-
rative suggests, for example, how African American life is written and
understood as an “amendment” to a privileged white status. We might
also see how the law occupies a different site in African American life
and specifically in African American narratives than it does in the life
and literatures of white Americans.
Yet another metaphor for the relationship between American law
and African American narrative is that of the palimpsest, in which one
text is written over another. In this case I am interested to see how
African American narratives overinscribe legal texts of the same issues,

place, figures, events. I would even suggest that it is appropriate to see
African American narrative overinscriptions as ironic, for signifying
is an ironic act. In any case, I want to ask questions about some of
the sources of the ontology of African American experience by look-
ing at the meaning-making/text-making enterprise shared, however
unequally at any given moment, by black and white Americans: partic-
ipation, however dissimilar in action and effect, in the culture’s domi-
nant narrative modes, literature and law. The intertextualities, the
palimpsests, the “signifying” considered here might be considered
epistemological moments that could lead us to understand the ontol-

ogy. By “epistemological” I mean to suggest the problematic of both
law and literature as ways of knowing or certifying what is. More

specifically, I mean to consider how African American narratives, pri-
marily fiction, signify on American law and allow us to judge it as a
way of knowing about African American life. At the same time, how-
ever, I mean to consider how American law operates to inject both epis-
temologies and ontologies into African American literature and life.
How the law and fiction, among other forms of narrative, func-
tioned as epistemologies of desire, for example, is a complex story. It
begins and ends with the impact of romanticism.6 By “romantic” in this
case I refer to typologies of self, imagination, community, property, pri-
vacy, individualism, authenticity, innocence, and irony that emerge in
American consciousness after Independence and that become the
unspoken premises from which white Americans in general reasoned
toward their understanding of the social body of the United States
throughout the nineteenth century.7 This understanding excluded
African Americans from citizenship in the imagined national commu-
nity and acted to suppress the expression of African American desire.8
In the America of which I am writing, matters of law are tied not
only to race but to property, as race in America itself is always already
a narrative of property. I would venture that romanticism served in the
emerging texts of our legal and cultural history to define self and prop-
erty such that the fundamental assumptions upon which certain consti-
tutional protections are based preemptorily excluded African Ameri-
cans from any enjoyment of those protections that were not first
carefully and exhaustively argued. Because I find it highly unlikely that
the law, as one of the two primary texts of American life in the nine-
teenth century (literature being the other), would fail to exhibit charac-
teristics of romanticism, the primary cultural paradigm in American
life in the nineteenth century, I think that an examination of the notions

of privacy, liberty, and the freedom to associate will show them to be
inscriptions of the romantic hero and that the obverse of each of these
will be seen to be inscriptions of the role of the “other” against whom
or which the hero struggles in the quest for autonomous identity, a role
reserved almost exclusively to the African.9 I also want to note here that
the ongoing task of scholarship is not only recovering paradigms but
particularities, including the hidden records of gendered and sexual
“others.” Much the same vocabulary that one uses to explore the con-
dition of blacks under the law in nineteenth-century America can be
Introduction 13
and is used in such work. Consider, for example, that Baldwin’s themes
achieve “an explicit exploration of the homosexual as the Other, to be
granted or perpetually refused the golden promise of America’s demo-

cratic dreams” (Porter 153). I note here that one of the limitations of this
study is that it does not attempt anything like a comprehensive study of
the relationships among designated “Others” and the conventions of
their creation in American discourse of polity. As Bernard Bailyn notes,
America as a wilderness was “a place where the ordinary restraints of
civility could be abandoned in pell-mell exploitation, a remote place
where recognized enemies and pariahs of society—heretics, criminals,
paupers—could safely be deposited . . . and where putatively inferior
specimens of humanity, blacks and Indians, could be reduced to sub-
human statuses” (113). If the Mansfield decision in Sommersett’s Case
(1772) made any Negro free the moment his foot touched England, then
the obverse of necessity was also true, that on the romantic western
periphery of European consciousness, “restraint on brutal exploita-
tion” should not hamper relationships between the colonial master and
his property (114).10
Michael O’Brien argues that the new America became a romantic
culture much sooner and with more alacrity than either France or
Britain “because romanticism had special appeal for those who felt
themselves on the periphery” (50). As a provincial culture in the throes
of self-creation, the United States was receptive to romanticism as “the
doctrine of the outsider” seeking to turn the isolation of the “parvenus,
the migrant, the odd” into “a proclamation of self-worth” (51).
What, then, has been seen as an “Enlightenment” principle of
rights for two hundred years might better be seen as a codification of
desire, the romantic pursuit of autonomous identity, able of necessity,
in the last instant, to stand apart from and to withstand community
while longing for it nonetheless—more to my point, to withstand com-
munity’s jurisdiction over private property.11 It is in this way that

romanticism in America is more clearly understood: as a colonial ideol-
ogy. The combination of property relations as systematized violence
and the “bizarre distentions” (Bailyn 114) of European culture that
flourished in isolation at its far western reaches along with those rela-
tions produced in America the fullest realization of romanticism’s colo-
nialist impulses. Consequently, autonomous identity underwrites citi-
zenship in America’s romantic postrevolutionary republic and at the
same time validates (even demands) its seemingly paradoxical post-
revolutionary, internalized colonialism, slavery. And it is this same
romantic autonomous identity that continued to underwrite citizen-

ship in America’s romantic republic and that was systematically denied
to African Americans throughout the nineteenth century. While the

legal history of this denial is, as Paul Finkelman notes, written in the
“statutes, court decisions, and quasi-legal mechanisms for race control”
that supported slavery (“Exploring” 90), the postwar rationales that
undergirded the reapplication of slave codes as a “law of separations,”
first as “Black Codes” and then “Jim Crow,” are grounded elsewhere.
The relationships between this “law of separations,” before and after
Emancipation, and African American narrative are the objects of this
inquiry.12
While epistemology, as a philosophical category, might turn out to
be too restrictive for this discussion, it does provide a preliminary place
to stand when one attempts to examine the tension in these texts
between the reality of life for black Americans and the ability of the law
to describe that reality. It also seems to be the case that these African
American writers want to privilege the discussion of that tension
through the use of specific literary forms, textual conventions through
which they can approach the contradiction, perhaps the central contra-
diction, of their lives as lived. As a people who find themselves in this
land, they find they are “of” this land only as they are defined through
a system of laws designed and enacted in the first instance to incorpo-
rate their enslavement and only subsequently altered to admit their cit-
izenship. The conflict resides in the fact that their enslavement was sit-
uated in the recognition of the “natural” right to property that was to be
protected for all citizens while their citizenship is situated in a category
of “status” that will always be textualized as an “amendment” to the
“natural” rights that were to be embedded in the Constitution. And so
black Americans will see themselves as strangers among strangers;
always the objects being named, never the naming subjects. The law,
one text of this disjuncture, can only amend and erase, but never cap-
ture, the life of the race. If it is, as Patricia Williams has argued, one task
of lawyers to “un[do] institutional descriptions of what is ‘obvious and
what is not’” (“Spirit” 131), then the law as a narrative of omission and
marginality cannot be let alone, centered among the social texts of
American life, and one clear task of African American fiction is to
undertake the decentering challenge of interrogating it.
One task of this book is to try to make that decentering visible. One
way to do that will be to try to show not only how African American
narrative signifies on “the obvious,” but to try to reveal what is not
Introduction 15
obvious, in the “law” and in the narrative. Just for a moment, for ex-
ample, we can divide the two centuries of black experience with the
law at 1896, with Plessy v. Ferguson. We can argue that Plessy looks back
to an Edenic text of American life but sets the type for a narrative of
bondage and fallen grace. “Separate but equal” is an Edenic formula-
tion; it limns an America as God might have made her, at the eve of that
day when Adam and God had separated out all the beings of the world
and given them names so that each would not be the other, just as God
had separated day from night and land from sea, and then woman
from man. Eden was that great good place where the evidence of an
evenhanded Creation stood in its several separate and equal parts. So,
said the Court, stood America on the brink of a new century. These are
romantic images of a national past, an imagined identity with Creation,
a privileging vision of the innocent genesis of property and race.
In 1954, another Court was drawn to the text of American origins
and found another narrative. That Court read a tale of ironic bondage,
made so by the illusion of equality. America, it read, had privileged
separation at the expense of equality, maintaining at its heart contra-
dictory and self-canceling texts, wounding itself through deception and
forfeiting innocence. Double-tongued, like a serpent, America inhab-
ited not Eden, but the prison-house of lies, holding half its people in
bondage while proclaiming them free, holding that bound half respon-
sible for the failure to produce the consequences of liberty while lock-
ing away the instruments of freedom when they entered the room.
Some understanding of how African Americans read and wrote
America’s genesis story is what we are after. How much romance, how
much innocence, how much irony went into the composition of those
narratives. Of course, innocence and irony are only parts of the story of
law and fiction in African American life, but because of their ties to
romanticism in American experience, they run throughout the narra-
tive as, I have suggested, feather and shot, recurring entries in the log-
book of the American experiment. One way to study the story of law
and fiction in African American life is to treat it as a real text and to try
to understand as much of the history of the production of that text as
possible. I assume that the text is indeterminate or at least unfinished
and has been worked on by several hands, encoding many voices.
Along the way I want to note how these hands/voices have recorded
their experimental observations of innocence and irony, and to con-
sider alongside those matters others that will emerge, such as memory,
property, privacy, and desire.
The epigraph to this book from Mrs. N. F. Mossell is relevant here.

Although her limited knowledge of the published immediate past
causes her to misstate the limits of black literacy in the nineteenth cen-
tury, her primary observation is true enough: literate or not, African
Americans were not admitted to the table where the composition of the
text of American life was going forward. And illiterate in such large
numbers, excluded in her time from representation by voice or hand in
the accounts of their own lives, black Americans could only “whisper
consolations” to their torn and dying selves. This study is an attempt to
read even those texts of the law and fiction that have emerged in the
light of her observation, to see how both law and fiction have operated
as whispered consolations to a people and to uncover the narrative
offered therein. To do that, I have assumed that there is a classical
African American narrative whose chronological boundaries are
roughly 1820 to 1954, and it is this narrative to which I will turn my
attention, though in an epilogue I will suggest what happens to the
classical narrative and what we might say about what succeeded it. The
discussion of the classical narrative is undertaken in two parts, which I
have arranged in eight subsequent chapters.
In the first four chapters I look at antebellum and postbellum mat-
ters and bring the account down to the first decade of the twentieth cen-
tury. At the center of these chapters is the influence of elements of
romanticism on the laws that circumscribed black American life and in
the narrative responses to that circumscription. Strategic to that inquiry
are matters of property, privacy, innocence, irony, authenticity, and
personhood. I have tried to examine these matters as I read cases from
colonial, antebellum, Reconstruction, and post-Reconstruction Amer-
ica, legislation from the same periods, narratives of fugitive slaves,
debates, editorials, essays, stories, novels, and autobiographies. And I
have tried to track one common effect of both slavery and post-Eman-
cipation law, the suppression of African American desire.

The subsequent four chapters are less specifically keyed to legisla-
tion and litigation than to the shifting legal focus in African American
narrative itself. The urbanization and consequential criminalization of
everyday African American life under Jim Crow allowed black writers
to finally shrug off the last of the affect of innocence and seek a realistic
approach to the depiction of black life under American law. As African
Americans moved into a “postproperty” world, they found it more
than a little uncertain. No longer property de jure, they were often
property de facto, and certainly they were nowhere near being “prop-
Introduction 17
ertied.” The irony of this life was explicit and unavoidable, and the
nineteenth-century questions of personhood, citizenship, and authen-
ticity had to be replaced with existential problems of “post-authentic”

life—passing, purpose, and free will. Where once Innocence made you
unfit for the franchise, now it meant not having to say you were guilty,
if you could prove it.
And it was here that the “classical” African American interroga-
tion of the law came to a close, with the inescapability of irony. The law,
at first glance, ultimately abhors irony. The law appears to be a
uniquely “innocent” institution in that it admits no middle ground.
Even to be “guilty” is to be innocent—of ambiguity. That is why legal
fictions abound in the law, to obviate irony. And African American nar-
rative met the law on those grounds. But when modernism came to the
African American novel, late as it did come, with Ellison’s Invisible
Man, the tone of the signifying changed. And the life of the Race under
the law changed as well. As Derrick Bell, Patricia Williams, Ishmael
Reed, Toni Morrison, James Alan McPherson, and a host of men and
women novelists, story writers, essayists, memoirists, and legal schol-
ars have testified since Brown v. Board of Education, the ironic power of
the law still permeates African American life. In a final, epilogical chap-
ter, then, I consider some aspects of a postclassical narrative and its
relationship with American law since the advent of the modern civil-
rights movement.
In general, one-half the book is the story of “romanticism, prop-
erty, and the suppression of African-American desire.” It emerges from
and contradicts Plessy’s “Edenic America” and stretches its story from
the first voice, that of America as “declared,” to the birth of what Ran-
dolph Bourne called “trans-national America” at the brink of the First
World War. It establishes the lines of innocence and irony across which
black Americans and the law of the romantic republic that enslaved
and then suppressed them spoke their pieces. It involves us with mat-
ters of identity, property, personhood, and citizenship. Ultimately it is
a struggle over the right to desire.
The second half is the story of “law and the closing of the classical
African-American narrative” and is about the consequences of the
struggle over desire, the impact of the urbanization of African Ameri-
can life, and “postproperty” identity. In this part some African Ameri-
can desire becomes posited as criminal when not suppressed and
becomes the hidden causative factor in the ironic racialization of urban
pathology through the first half of the twentieth century. But a part of
the story is of the emergence of the empowered ironic narrative that

closes out the classical era of African American narrative despite the
imputations of pathology. The period ends, as Ellison might appreci-

ate, with his novel and the notice to Americans that, indeed, their house
of laws is on fire.

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Introduction

Signifying, Epistemology, and

“Guilty, or not guilty?” demanded the judge.

When I first encountered Ralph Ellison’s 1976 essay, “Perspective of

relief, I discovered that if Ellison was to be my gauge, then African

Recently a television dramatization of the Scottsboro case presented

Although he says he cannot completely embrace Freund’s position,

short by the absence of any critical attention in print to this question. As

some African American fiction (Suggs, “Epistemology”). Because I

Jews who complained that he had violated the exceptionality of the

slavery by calling their readers’ attention to the role of white male

different kinds of scrutiny. He doesn’t say what kinds of scrutiny but

the nineteenth century, is grounded specifically in this problem of how

up different meanings to different scrutinies.

also driven by character. In most realistic narrative, in which plausibil-

romantic novelist determined to present nature in harmony with your

Human character is a compound of tendencies inherited and

We will see that the presence of such attitudes toward African

for stories grounded in law—and ghettoizes those stories in separate

novels of Chesnutt, Delany, Harper, McKay, Hurston, Bambara, and

How radically this situation differs from that of white American

The marginal world of the earliest black American novels may be

but “fictive member[s] of an identifiable class of natural (‘real’)

But at the center of African American fictive narrative, as at the

participants invites conflicting analyses. For everyone on top, there is a

other complexities, makes unheard statements in response to the inter-

African American narratives overinscribe legal texts of the same issues,

epistemological moments that could lead us to understand the ontol-

law and literature as ways of knowing or certifying what is. More

life in the nineteenth century, I think that an examination of the notions

granted or perpetually refused the golden promise of America’s demo-

munity’s jurisdiction over private property.11 It is in this way that

romantic autonomous identity that continued to underwrite citizen-

to African Americans throughout the nineteenth century. While the

The epigraph to this book from Mrs. N. F. Mossell is relevant here.

cipation law, the suppression of African American desire.

ticity had to be replaced with existential problems of “post-authentic”

the story is of the emergence of the empowered ironic narrative that

imputations of pathology. The period ends, as Ellison might appreci-

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