I

“Free Subjects: Black Civic Identity and the Invention of the Asiatic”

Short Version

Hoang Gia Phan

Ph.D. Candidate

English Department

University of California – Berkeley

I.If, as Etienne Balibar describes, the radical projects of 1776 and 1789 constituted political citizenship such that “citizenship is not one among other attributes of subjectivity, on the contrary: it is subjectivity, that form of subjectivity that would no longer be identical with subjection for anyone,” how do we narrate the histories of unfreedom which inhered in these moments? Rogers M. Smith has argued that throughout the history of citizenship laws – codifications through which American officials “literally constituted the American civic community”– political actors have relied on ascriptive hierarchies to promote and maintain exclusions based on race, gender, and class. In this essay I explore an aspect of citizenship of which liberal histories such as Smith’s gives little account, namely labor. Indeed, Smith treats labor only in racialized form (i.e., as black slave labor) and even then concentrates more on the “race” of laborers than on the regime of unfree labor with which they are identified. Yet, as labor historian David Roediger has argued, blackness and slavery were not always identified with one another, nor did whiteness always signify independence. With labor as the point of entry into the subject of citizenship, I will investigate various exclusions based not solely on “race,” but also on forms of labor, which, through the rituals of law, become racialized. This racialization of a societal division of labor cognizable within the liberal-republican framework in turn explains, I argue, the convergence in U.S. legal thought of juridical understandings of the citizen and the production of an exclusive class of subject: the “free worker.”

One way to better understand Anglo-American slavery – as a labor regime historically and ideologically tied to blackness – and the transition to post-Emancipation “freedom” is a transnational perspective, which considers the relations between migration and forms of labor. Understanding the moments of transition, from unfree to “free” labor, requires an understanding of that form of labor that we can propose as a middle term: indentured servitude. This middle term of indenture, the possibility of transition from one form of bonded labor to the system of “free” waged labor, is inscribed in the very constitution of U.S. nationhood. Article I, Section II of the U.S. Constitution scripts the famous “three-fifths” clause thus: “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.” Critics are right to remark upon the absence of “black,” “color,” or even “race” in the catalogue of this clause’s accounting. While such arguments provide an important corrective to a critical commonplace, they forget another category of laborer which adds significantly to our understanding of the relation between the unspoken terms of “race,” “slavery,” and labor. Supplementing its description of “whole free persons,” the clause adds: “including those bound to service for a term of years” – that is, indentured servants. In the context of the later mobilizations of the concepts of freedom and unfreedom, indentured servitude and its ambiguous position between “whole free persons” and those “other persons” (slaves) becomes particularly important. While we might agree with David Brion Davis on a structural identity between indentured servant and slave, we should also recognize the difference of degree between them, which is at least important enough to be included as a supplement to the Constitution’s calculus. In other words, while indentured servants may be just like slaves in their living conditions, their social standing, and the experience of corporal punishment, they are also legally different: they will be counted as whole, those other persons will not.

This other labor category of indenture displaces a binary often assumed in readings of the Constitution, and in understandings of slavery generally, between free labor and the unfreedom of slavery. As a third term, it adds productive problems to familiar critical narratives of slavery, and its various loose synonyms, such as bondage and involuntary servitude. One immediate question, for example, is: Why should they count as whole numbers? Yet even this is a misleading construction of the clause. It reads: “the whole number of free persons, including those bound to service for a term of years.” It is not: “the whole number of free persons and the whole number of those bound to service.” The supplementary “including” describes free persons. Which is to say that one can be bound, be in a state of bondage, and also be free – free, at least, for the classificatory purposes of the law.

In indentured servitude, individuals “voluntarily” contract to serve for a term in exchange for compensation, such as transportation expenses and freedom dues. What type of labor does this practice constitute? As David Brion Davis’ and Barbara Fields’ arguments suggest, the modern answer seems to be that it constitutes a form of slavery. As Robert Steinfeld reminds us, this answer, “however, depends upon a particular scheme of understandings that ignores the characteristics indentured servitude shares with free labor – contractual freedom, limited term, compensation – and that classifies it with slavery because of the legal compulsion both involve.” Nor should we disregard the significance of this middle term of indenture to the conventional dialectical relation between “free” labor and slavery. If we reread, for example, what is commonly called the fugitive slave clause, with this other category (more) in mind, its valences shift: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall in consequence of any law therein, be discharged from service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.” “Service or labour” appear paired three times in this clause. James Madison’s Notes from the Convention are particularly revealing of the Constitutional founders’ shared recognition of this connection between indentured and slave labors. As Madison notes, the “fugitive slave” clause was originally introduced as a supplement to the clause requiring the delivering up of criminals to the “State having jurisdiction over the Crime.” “Mr. Butler and Mr. Pinckney moved to ‘require fugitive slaves and servants to be delivered up like criminals.’” After several objections to this proposal – objections to its explicit inscription of slavery into the Constitution; and to its expectation that non-slaveholding states thus be required to pay for the practices of the slave-holding states – the proposition was withdrawn, “in order that some particular provision might be made apart from this article.” What we now call the “fugitive slave clause” was reintroduced the next day, as a separate provision. Interestingly, both the terms “slave” and “servant” disappear in the new provision, with the paired “service or labour” coming to stand in for them. It is thus important to note that the clause providing for the return of fugitive labor applied to both slaves and indentured laborers. Both types of labor, free and unfree, are erased from this monumental scene of writing.

In the discussion that follows I will be interested also in that other “slave clause,” which at first glance admits of less susceptibility to a construction inclusive of indentured labor: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” “Migration,” positioned as distinct from “importation,” implies a greater degree of volition in the “person” traveling than “importation” does; indeed, the latter has an overtly commercial valence – with attendant suggestions of human chattel – less apparent in the term migration. Such would accord with an understanding of indentured labor as a form similar to “free” labor, in its explicit contractual freedom and the attendant presupposition of “voluntary” labor. Various forms of labor: “free,” indentured, and involuntary. Such are the major nodes in a spectrum of degrees of freedom and unfreedom, as recognized in American law until the end of legal slavery and the passage of the post-war amendments. As we will see, the end of the legal form of one labor system did not then resolve the problems designated as those of “race” and “class.”

II.Four decades after the Dred Scott decision denied citizenship and personhood to African-Americans, the ambiguous relation between black citizenship and “freedom” was foregrounded once again in the case of Plessy v. Ferguson (1896). While Plessy was a dispute over the segregation of black and white Americans, both the majority and the dissenting opinions in Plessy allude to the legal treatment of the growing population of Chinese migrant laborers in the U.S. Paradoxically, each side of the ruling is able to invoke the ambiguous status of this “other race” in support of its arguments. The majority opinion, delivered by Justice Henry Billings Brown, denied the validity of the plaintiff’s claims that the Louisiana act segregating black and white citizens on railway cars conflicted with the Thirteenth and Fourteenth Amendments. Justice Brown quickly dismisses the first claim, of conflict with the Thirteenth, by citing the ruling in the famous Slaughterhouse Cases of 1873:

That [the act] does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. … This amendment was said in the Slaughterhouse cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the of the word ‘servitude’ was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name.

Judge Brown’s citational practice aims to restrict the signification of “slavery” as well as what for Brown is its legal-ideological opposite, “freedom.” His argument against the plaintiff’s claim requires such a restriction. Yet what does his final clarification of the “use of the word ‘servitude’” mean in the context of segregation and the court’s inscription of the meaning of post-emancipation unfreedom? “Slavery,” as Brown defines it, “implies involuntary servitude – a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services.” Here slavery entails, by logical necessity, “involuntary servitude.” Yet the persuasive force of such an interpretation is attenuated by the tension between the claimed capaciousness of the term “involuntary servitude” and Brown’s desired limits to the descriptive bounds of slavery. Thus his necessary proliferation of the supplementary conditions of involuntary servitude, which lead Brown to the strikingly redundant final category, “involuntary slavery.” If the essence of “slavery,” in Brown’s understanding, is “involuntary servitude,” what is “involuntary slavery”? The redundancy and equivocations in Brown’s phrasing reveal the strained logic of his terms. “Slavery” in the Plessy decision designates one form of unfree labor “as it had been previously known in this country,” i.e., black slavery. Brown supplements this slavery with “servitude,” that more capacious term designating any form of “slavery,” as it might persist under another name.

Brown’s citation of Miller is one strong example of the agency of the letter: figured as legal precedent, the Slaughterhouse majority opinion constructs for both immediate and later historical contexts a conceptual link between a reified “race” category and certain types of laboring subjects. For in accepting the Slaughterhouse ruling’s construction of the Thirteenth Amendment’s intent, Brown also reinscribes that ruling’s identifications of “races” with specific labor regimes. In the majority opinion of the Slaughterhouse Cases cited by Brown, Justice Samuel Miller had ruled against white tradesman claiming the protections of the post-war amendments. Even as Slaughterhouse affirmed that the postwar amendments had been designed to grant the rights of citizenship to formerly enslaved black men, the debate over their uses and extensions mobilize a host of other stories about labor, “class,” and “race.” Indeed, while the butchers’ argument against monopoly claimed an expansive federal protection under the Fourteenth Amendment, as Eric Foner’s historical narrative suggest, it also claimed for them inclusion under the Thirteenth Amendment, prohibiting slavery: “But if this monopoly were not thus void at common law, it would be so under both the thirteenth and fourteenth amendments.” The butchers’ lawyers mobilized narratives of enslavement and caste domination to argue for the inclusion of these white tradesman under an amendment that everyone involved in the case recognized as designed to end the legal slavery of blacks in the Unites States. Such inclusion of white tradesmen under this protection rested on their more expansive significations of the phrase “slavery and involuntary servitude” in the Thirteenth Amendment. Calling up the specters of Old World hierarchy and feudal serfdom, and drawing analogy between these and the Louisiana act’s creation of “enthralled ground” and its dispossession of “free” tradesman of their means of livelihood, they ask: “Is this not ‘a servitude?’… It is like the “thirlage” of the old Scotch law and the banalites of seigniorial France; which were servitudes undoubtedly. … We have here the ‘servients’ and the ‘dominants’ and the ‘thraldom’ of the old seigniorial system.” Their primary claim, then, is not to the citizenship protections of the Fourteenth Amendment, but rather to protections against the return, with the rise of monopoly control, of a feudal “slavery” supposedly left behind in Europe. The butchers’ inclusion rests on their “subject” position as virtual slaves under the legally enforced dominion of a corporate monopoly.

In his majority opinion, Miller denies the validity of such an expansive construction of the Thirteenth:

It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth. We do not say that no one but the negro can share in this protection. … But what we do say, and what we wish to be understood is, that any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, all the evil which they were designed to remedy.

Miller’s fundamental objection is to the apparent disappearance of “color” – and the “negro slavery” of which it is an index – in the white plaintiffs’ claim to the “subject” position of involuntary servitude. Such a complaint registers once again the complex dialectic of the visibility and invisibility of “race,” and its convergence with labor law. The end of the legally enforced “involuntary servitude” of black slavery in America converges with agitation in the world of “free labor” – of which African-Americans were formal members after the Civil War.

What happens to those links, established and strengthened during slavery, between blackness and dependency, and between whiteness and independent, free labor, when the federally sanctioned enslavement of blacks ended, and the recently freed are made, through the post-war amendments, formal equals on the labor market – a market, in which, as the post-war amendments and the subsequent debate in Slaughterhouse highlight, “color” may disappear on the level of abstract form (i.e., of citizen-form and commodity form) while persisting in the social? Do the black slaves of that “unqualified slavery” to which Marx refers, in gaining legal freedom, merely enter the “veiled slavery” of wage labor under capitalist production? In the post-bellum years the increasing poverty of such a concept as “free labor” became only too apparent to the recently freed blacks, who in many ways emerged from enslavement in the same sense as Marx’s workers, “free in the double sense.” Miller’s insistence on African slavery as the “efficient cause” of the war and the “freedom of the slave race” as “the one pervading purpose” of the post-war amendments denied the butchers’ inclusion under the protections of the amendments, denying their free-labor reading of “servitude.” Further, and even more significant to the social fate (often one of social death) of black citizens, his insistence on the centrality of African-Americans in the causal history of the war elided the significance of the confrontation between the Union and states-centered authority. Such an elision enabled his arguments against expansive federal jurisdiction. It was this very limitation of national jurisdiction over the administration of justice that greatly weakened civil rights enforcement. In the contradictory post-bellum dialectic of the (in)visibility of “race” in the formal category of citizenship, recently freed African-Americans found themselves figured as the “subjects” of one legal narrative, only to be erased from the scene of another.

Miller attempts to contain the scope of the post-war amendments to black freedom through a containment of signification. In particular, Miller argues for the supplementary logic of “servitude,” in response to the problematic excess of terms in the Thirteenth Amendment, which prohibits two categories of labor subject to legal compulsion, not slavery alone. Disputing the white plaintiffs’ claim that their subjection to a monopoly amounted to “involuntary servitude” – concerned, that is, to counter such an expansive construction of the amendments – Miller (re)constructs the intent of the Thirteenth Amendment (and this construction becomes Judge Brown’s precedent in the Plessy ruling): “The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery.” Miller’s logic proceeds by increments of enclosure: servitude the larger circle, and slavery its subset. His explanation is that involuntary servitude is intended as a strategic enclosure, in order to prevent the use of the pretense of indentured servitude to perpetuate black slavery, in disguised form. Yet indentured servitude escapes this enclosure, for Miller’s invocation of this old labor category also raises its old question: is indentured servitude involuntary servitude? While here Miller’s argument relies on such a view, a little later in his acts of enclosure Miller contradicts this equation of indenture and involuntary servitude: “If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void.” While before indentured servitude constituted the perpetuation of slavery under a different name – which Miller argues the amendment’s excess terms were intended to comprehend – here it is allowed as not-yet slavery. The ritual of enclosure in Miller’s legal logic advances the racialization of labor systems, as if in a burlesque of the modes of production: his logic will only allow certain “race” categories to attach to now-naturalized labor systems with which they have been historically and ideologically intertwined: Mexican peonage and Chinese coolie labor are acceptable race-labor categories, but black labor is in this logic incommensurate with indenture. “Black,” for Miller, is always-already the sign of slavery, and black indenture or apprenticeship is a logical impossibility. It must be slavery masked.

III.Such identifications between race and labor, carried down from the Slaughterhouse Cases to the Plessy ruling, enable Justice Brown’s invocation of a Chinese-labor case against the plaintiff Plessy’s second major claim, that the Louisiana segregation legislation violated the Fourteenth Amendment. Describing the police power, Brown claims the arbitration of practical “reason” in deciding its scope:

every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance and oppression of a particular class. Thus in Yick Wo v. Hopkins, 118 U.S. 356, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries . . . violated the provisions of the Constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places. … It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race.

For Brown the ordinance challenged in Yick Wo is the truer example of a legislation that violates the Fourteenth Amendment rights of a “particular class” – “the Chinese race.” “So far,” Brown argues, “as a conflict with the Fourteenth Amendment is concerned, the Plessy case reduces itself to the question of whether the statute of Louisiana is a reasonable legislation, and with respect to this there must be a larger discretion on the part of the legislature.” Brown’s distinction between “discretion” and “discrimination” itself relies on local arbitration, on that field of particularity identified as “the social,” as both prior to and immune from the workings of federal law. As a privileged category of judgment, discretion displaces the question of legal discrimination towards the cultural-ideological sphere of tradition. Thus, “in determining the question of reasonableness [the Louisiana legislature] is at liberty to act with reference to the established usages, customs, and traditions of the people.” Through Brown’s logic of reduction, the constitutionality of the legislation becomes a question of whether it is “reasonable,” an ambiguous term whose site-specific valences are left to be adjudicated by local tradition: the objectivity of the law meets its self-proclaimed limits in the countervalent objectivity-subjectivity of (what Pierre Bourdieu has called) the social habitus.

In the only dissent to the Plessy ruling, Justice Harlan likens the separate-but-equal ruling of the majority opinion to the “pernicious” Dred Scott decision of four decades earlier. Yet even as Harlan critiques the Plessy ruling’s revival of the inegalitarian spirit of Dred Scott, his own, apparently more expansive, formulation of the meaning of freedom reinscribes Dred Scott’s language of citizenship, a language which constructs freedom around other necessary exclusions: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” While arguing, then, against “the arbitrary separation of citizens, on the basis of race, while they are on a public highway, [as] a badge of servitude,” Harlan invokes another “race” as the truly radical other that can never be assimilated into this community of U.S. civic identities. The historical context of labor competition and immigration exclusion is essential to Harlan’s choice of exemplary other, and I will return to this later. Suffice to remark here that even as he dissents from the Plessy majority opinion, Harlan’s exclusion of this other race depends upon a construction of the Fourteenth Amendment that he shares with it. Read by both the majority and dissenting opinions in Plessy as merely an enlargement of the domain of citizenship, with no effect on citizenship’s consensualist basis, the Fourteenth Amendment’s supplement to freedom maintains not only the possibility but also the necessity of exclusion as constitutive of the nation. To define “all citizens,” black and white, as “equal before the law,” Harlan emphasizes a racial alterity supposedly greater than that of African-Americans, who, as civic subjects, at least, find their “race”—marked difference subordinated to their civic identity with white citizens. Despite his claim that the post-bellum amendments “removed the race line from our governmental systems,” the very borders of this system are drawn by another “race” line. The (il)logical implication of this race-based exclusion is that African-Americans, at this moment in U.S. history, are apparently enough like white Americans to be included in its citizen community (while the Chinese are not).

IV.Considered alone, however, the “race” of the Chinese subjects is not the reason for the court’s anxiety. Which is to say it not merely xenophobia that motivates the court’s support of exclusion, but rather the ideology of racism and its relation to labor which represent to the court’s natural right and necessity of exclusion in maintaining domestic “peace and security.” The treaty of 1880 which provided for the recognized U.S. right of exclusion was directed explicitly towards laboring migrants. Accordingly, all the exclusion acts passed to carry this treaty into effect named only Chinese laborers as their subjects. Justice Field traces the history of this growing labor competition, which in his nationalist historiography justifies exclusion:

laborers came from [China] in great numbers … by far the greater number under contract with employers, for whose benefit they worked. These laborers readily secured employment, and, as domestic servants, and in various kinds of out-door work, proved to be exceedingly useful. … [A]s their numbers increased, they began to began to engage in various mechanical pursuits and trades, and thus came in competition with our artisans and mechanics, as well as our laborers in the field.

Field’ narrative of Asiatic indenture in the U.S. throws into relief the structural link between labor competition and anti-immigration sentiment. In Judge Stephen Field’s majority ruling in the Chinese Exclusion Case, the concept of the “public good” centers upon the world of free labor: in the last instance, it is Chinese labor which poses the threat to this “public good” – itself the sign, I argue, of a racialized division of labor. Early Chinese labor migration posed no threat to the “public good” (domestic peace and order; and national security) precisely because it came in the form of indentured labor; it was not “free labor” in the fullest sense of that concept (where social labor-power is disentangled from “free” legal personhood), as white labor was understood to be. Early Chinese laborers sustained the ideology of free labor: as domestics and dependent labor, they entered into limited exchange as servants, working for the benefit of others – while the white U.S. laborer of this implicit comparative worked for himself, i.e., was independent. However, as the character of their labor changed – as they attempted to make the transition from indentured labor into that of the labor-commodity in necessary competition with free (white) labor – Chinese laborers became a threat. The “Chinese race” figures as that form of labor that degrades and threatens the status of “free labor.” Such identifications of certain “races” with certain types of “labor” suggest also that the structure of what Rogers Smith has called the “ascriptive hierarchy” of race that determined citizenship-law in the nineteenth century maps onto the hierarchy of labor regimes described earlier in this essay. Free (white) labor figures at the top of the nineteenth-century hierarchy of race-labor identities, followed by (Asiatic) indenture, (black) slavery, and (Mexican) peonage as the major forms of “degraded” labor. As I have noted above, the legal transformation of the formerly enslaved into waged laborers required assimilation into the world of “free labor.” In the legal-political structure of such assimilation, the differences of race are maintained – the “separate but equal” logic of the Plessy ruling – while ideally subordinated to civic identity. Similarly, that “residue” of race-ascribed difference enables the hierarchization of these assimilated black subjects within the structure of civic identity. The court’s invocation of the “public good” in the Chinese Exclusion Case is the demand for the maintenance of such race-labor hierarchies. The identity principle inherent in assimilation reproduces the demand that those persons attaining the status of freedom - one possible only in and through citizenship – must also be brought into identity with “free labor.”

� Etienne Balibar, “Subjection and Subjectivation,” in Joan Copjec, ed., Supposing the Subject (London: Verso 1994) 12. As many recent philosophers and political theorists have remarked, the term “subject” carries with it a history of overdeterminations. In such discussions, “subject” implies both an identity through some type of self-recognition and a position of subordination or subjection to some other. Perhaps most famously, Althusser: “In the ordinary use of the term, subject in fact means: (1) a free subjectivity, a center of initiatives, author of and responsible for its actions; (2) a subjected being, who submits to a higher authority, and is therefore stripped of all freedom except that of freely accepting his submission” (“Ideology and Ideological State Apparatuses,” in Lenin and Philosophy and other Essays, trans. Ben Brewster [New York: Monthly Review Press, 1971] 182). Both Foucault and Balibar have taken up this ambiguity to theorize, respectively, power and citizenship. See Michel Foucault, “The Subject and Power,” in Hubert L. Dreyfus and Paul Rabinow, eds., Michel Foucault: Beyond Structuralism and Hermeneutics (Chicago: University of Chicago Press, 1983) 212; and Balibar, “Subjection and Subjectivation,” 8. Etienne Balibar’s elaboration of the subject in juridical terms provides one point of departure for my argument.

� Rogers M. Smith, Civic Ideals (New Haven: Yale UP, 1997) 7, 2. More specifically, Smith argues that “although many liberal and republican elements were visible, much of the history of America’s citizenship laws did not fit with liberalism as [Louis] Hartz described it or republicanism as [J.G.A.] Pocock described it.” Reading against variants in the tradition of Tocquevillean scholarship which focuses on a singular history of ideals or philosophical precepts (of liberalism or republicanism) as the common ground of American national self-understanding, Smith presents a “multiple traditions thesis,” which, while arguing for a blend of various civic ideals, emphasizes the inegalitarian, ascriptive elements present throughout U.S. history (Smith, 6).

� Like Karen Orren I proceed from the “primacy of labor.” The phrase is from Karen Orren’s Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge: Cambridge UP, 1991). Orren’s “claim is that inquiry into how work is induced and regulated will open new avenues to understanding fundamental changes in politics. The primacy of labor is based on the premise that labor is a bridge between the realm of state elites and institutions and the ongoing activities of social life. … Changes in these relations, or a change in demands on the part of the state, may cause, historically have caused, adjustments of political institutions, accompanied by varying degrees of conflict”(Orren, 21).

� See David Roediger, The Wages of Whiteness (London: Verso, 1999). According to Roediger, “the terms white and worker became meaningfully paired only in the nineteenth century...during a time in which the United States, whose citizens were taught by their revolutionary victory and republican ideology to expect both political and economic independence, became a nation in which, by 1860, roughly half the nonslave labor force was dependent on wage labor and subject to new forms of capitalist labor discipline” (20). Similarly, as Edmund Morgan and others have argued, white indentured servitude preceded African slavery as the dominant mode of labor migration during European expansion – though it was later displaced by this labor regime. See Edmund S. Morgan, American Slavery, American Freedom (W.W. Norton, 1975) esp. “Toward Slavery; Stanley L. Engerman, “Servants to slaves to servants: contract labor and European expansion,” in P.C. Emmer, ed., Colonialism and Migration: Indentured Labour Before and After Slavery (Dordrecht: Martinus Nijhoff Publishers, 1986); and Theodore W. Allen, The Invention of the White Race, Volume Two: The Origin of Racial Oppression in Anglo-America (Verso, 1997), esp. Chapters 6 through 8.

� Yet to focus on labor is not to displace “race” as a category of inquiry. David Eltis has argued that it was the “African exclusivity” of slavery in the Americas, an “ethnic divide,” that “provided Europeans with the blinkers necessary to come to terms with an institution that was so different form the labor regimes which they saw as appropriate for each other.” See David Eltis, “Slavery and Freedom in the Early Modern World,” in Stanley Engerman, ed., Terms of Labor: Slavery, Serfdom, and Free Labor (Stanford: Stanford UP, 1999) 35-6.

� Yet to focus on labor is not to displace “race” as a category of inquiry. David Eltis has argued that it was the “African exclusivity” of slavery in the Americas, an “ethnic divide,” that “provided Europeans with the blinkers necessary to come to terms with an institution that was so different form the labor regimes which they saw as appropriate for each other.” See David Eltis, “Slavery and Freedom in the Early Modern World,” in Stanley Engerman, ed., Terms of Labor: Slavery, Serfdom, and Free Labor (Stanford: Stanford UP, 1999) 35-6.

� By “free worker” I mean one who sells himself on the labor market as a commodity; i.e., in that double sense described by Marx: “Free workers in the double sense that they neither form part of the means of production themselves, as would be the case with slaves, serfs, etc., nor do they own the means of production. . . . The free workers are therefore free from, unencumbered by, any means of production of their own” (Capital: A Critique of Political Economy, Volume 1, trans. Ben Fowkes [Penguin, 1990) 874). On the ideology of free labor in the ante-bellum U.S., see Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford UP, 1995).

� For example, the 1780 emancipation act of the state of Pennsylvania was couched in gradualist terms, with compensation to go to former masters, through the unpaid labor of their former slaves for a set term of years. This act explicitly likened the status of the recently “emancipated” to that of indentured servants. See the text of Pennsylvania’s “An Act for the Gradual Abolition of Slavery” (Pennsylvania Law Book, vol. 1, 399); enacted March 1, 1780. Another well-known example is the gradualist abolition of slavery in the British West Indies, which allotted masters up to six years of unfree labor from their former slaves, in the so-called “apprenticeship” period. Such an intermediary period was prescribed with a view towards maintaining plantation production levels, and in order to “assimilate” former slaves into the wage-labor economy and its attendant social-cultural formations. The worry over the productivity of free black labor was great, and in what came to be called “the great experiment” of West Indian emancipation the main concern was continuity in sugar production, which rested upon the successful transformation of an enslaved population to one of “free labor.” See Seymour Drescher, “Free Labor vs. Slave Labor: The British and Caribbean Cases,” in Terms of Labor, 50-86. For an insightful discussion of such “gradualist” emancipation and the notions of “need” and “value” in assimilation, see Thomas C. Holt, “‘An Empire over the Mind’: Emancipation, Race, and Ideology in the British West Indies and the American South” in eds. J. Morgan Kousser and James M. McPherson, Region, Race, and Reconstruction (Oxford University Press, 1982) 283-313.

� The U.S. Constitution, in Martin Shapiro, ed., The Constitution of the United States and related documents (Northbrook, IL: AHM Publishing, 1973) 1-34.

� Fehrenbacher, 193; Barbara Fields, “Slavery, Race, and Ideology in the United States of America,” New Left Review vol. 181 (1990), 99; Stephen Best, “Fugitive Sound: Fungible Personhood, Evanescent Property,” in The Fugitive’s Properties: Law and the Poetics of Possession (forthcoming, Chicago: University of Chicago Press). The letter of the law, in its calculations for the purposes of states’ representation and taxation, refers to only two “types” of “persons.”

� Barbara Field’s elision of this third term in her reading of the clause is striking, as she later presents a brief pre-history of “race,” in which indentured servitude figures.

� This is the argument, following David Brion Davis, of Barbara Fields. See Fields, 102.

� Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870 (Chapel Hill: University of North Carolina Press, 1991) 10. Neither can we assume that this other category of labor was insignificant at the time of the Constitution’s writing. According to Feinsteld, Americans of this period distinguished “indentured servitude from slavery and seem to have considered it a much less objectionable practice” (13). Mass importations of European servants continued intermittently well past the American Revolution, until at least 1820. As late as 1785-1804, 45 percent of all German immigrants who arrived in Philadelphia arrived as redemptioners (11). Surprisingly, Steinfeld does not offer a reading of the U.S. Constitution. I have not found any critic who does read into the presence of this other labor system in the Constitution. Nonetheless, my argument is indebted to Steinfeld’s good history of the career of indentured servitude.

� James Madison, The Debates in the Federal Convention of 1878 Which Framed the Constitution of the United States of America: Reported by James Madison, a Delegate from the State of Virginia, eds. Gaillard Hunt and James Brown Scott (Buffalo, NY: Prometheus Books, 1987) vol. 2, 481; 487.

� We would be more historically accurate in calling it the fugitive labor clause.

� What the presence of the twinned “service or labour” indicates, further, is that the debt relation alluded to in the concluding words of the clause – the fugitive “shall be delivered up on claim of the party to whom such service or labour may be due” – can be conceptualized similarly in the cases of both indenture and slavery. (I use this latter term recognizing its marked absence from the letter of the law.) In other words, if, as I argue, both labor categories are present in this formulation, one can see that the labor category of slavery, when employed in tandem with this other category of bonded-labor (which labor category explicitly entails terms such as volition, contractual freedom, and compensation), is accompanied by the traces of its own contractibility. Finally, the pairing of indenture and slavery in this clause also underscores their fundamental similarity, which would lead both of them to be viewed later as “involuntary servitude” – that is, their shared condition of legal compulsion. Such a provision for legal compulsion – this is a clause providing for the delivering up of fugitive labor, after all – would be mobilized later to consolidate the modern definition of “free labor,” as that category describing labor performed in “the absence of legal compulsion” (Steinfeld, 138).

� Once again, the debates over the wording of the Constitution are particularly revealing: many representatives (from slaveholding and non-slaveholding states) objected to any explicit references to “color” or “race” – indeed, many objected also to the use of the word “slave” itself. Only one decade after the Constitutional convention, but long before the rise of broad anti-slavery agitation within the U.S., the use of euphemisms for black slavery became a contentious topic of political debate. In the Congressional debate over the Alien Friends Act of 1798, Federalists claimed that the “1808” provision in the U.S. Constitution applied only to the slave trade. Jeffersonian Republicans, arguing against the Federalist’s attempts to regulate immigration, denied this, asserting that the provision applied also to the immigration of free persons. To do so, they argued that the word “person” was general, and included immigrants; and that “migration” was used, which indicated a “free act of the will,” in addition to “importation,” which applied exclusively to the traffic in persons chattel, slaves who were brought to into the United States without their consent. This turn of the century debate over the interpretation of these words was only “resolved” when Abraham Baldwin (the only representative then in the House who had helped frame the Constitution) agreed that the clause applied to immigrants as well as to slaves. In doing so, he recalled the objection, during the Constitutional debates, over the use of the word “slaves.” This is only one of many instances in which the Constitutional inscription of the citizen raises the problematic dialectic of visibility – that simultaneous visibility and invisibility of the national subject in the letter of the law. I explore this dialectic of visibility/invisibility at greater length in the introduction to the dissertation. This semantic debate also reveals the extent to which “original intent” was perceived as crucial to later debates over the legal form of citizenship. Debates and Proceedings in the Congress of the United States, 5th Congress (1797-98). See especially, Gallatin, 1979, Baldwin, 1978-1979 from the Debates, 5C. See also James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell UP, 1956) 79-81.

� The migration of white indentured servants ended in the U.S. by 1830 (Steinfeld, 11). This type of laboring population was replaced by indentured labor migration that was predominantly Asiatic. See David Northrup, Indentured Labor in the Age of Imperialism, 1834-1922 (Cambridge University Press, 1995) 4-7. See also David W. Galenson, “The Rise and Fall of Indentured Servitude in the Americas: An Economic Analysis,” Journal of Economic History 44.1 (1984) 1-26. See also Milton Konvitz, The Alien and the Asiatic in American Law (Ithaca: Cornell UP, 1946), who notes that before the end of the Reconstruction period many former slaveholders in the south expressed “lively interest in the possibility of substituting Chinese coolie labor for Negro slavery. It had been suggested in Memphis, in 1869, that such a substitution might be in order; and on several occasions about this time Southern planters had visited California with this purpose in mind” (Konvitz, 12). Konvitz suggests that such a “substitution” became unnecessary with the de facto end of Reconstruction and its emancipatory possibilities: “Once [the planters] realized, however, that they had regained control of the Negro, their interest in Chinese labor swiftly abated” (Ibid., 12). For a more specific, comparativist account of the relation between black labor and Chinese labor, see C. McWilliams, Brothers Under the Skin (New York, 1943).

� Plessy v. Ferguson, 163 U.S. 537 (1896).

� Ibid., 542, my emphasis.

� Ibid., 542.

� Ibid., 542.

� The primary meaning of imply is “to involve by logical necessity; entail.” If it is “slavery,” then it is “involuntary servitude. Similarly, the entry for “implication, logical” in the Philosophy Dictionary (Harper Collins, 2nd ed.) notes: “1. sometimes called definitional implication, deducibility of one statement from another. 2. sometimes synonymous with logical entailment, the relationship of two statements whereby if the first is true, then the other is also necessarily true.”

� The form of the precedent effaces the legal debates this case originally engendered. The majority opinion in Slaughterhouse cited by Brown figures as the authoritative construction of the Thirteenth and Fourteenth Amendments; its narrow 5-4 majority and the many dissenting opinions are often forgotten.

� The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873). On its face the Slaughterhouse Cases had no direct relation to racial subjects or color-based discrimination. The plaintiffs were southern white butchers, and their opponents a corporate body of seventeen white businessmen. In 1869 Louisiana had created by charter the Crescent City Stock Landing Slaughter House Company, and enacted a public health statute that deprived butchers of their own slaughterhouses and forced them to ply their trade on the premises of this corporate monopoly for a fee. The butchers’ suit contended that the monopoly violated their right to pursue a livelihood, guaranteed under the Fourteenth Amendment. As historians have noted, the suit’s central question was whether or not the Amendment had expanded the definition of national citizenship for all Americans, or only accorded blacks certain rights already enjoyed by whites. The majority opinion, delivered by Miller, rejected the butchers’ plea, arguing that the primary intention of the post-war amendments was the enlargement of rights for the recently freed blacks. Miller argued, in other words, that the amendments had not altered traditional federalism; that states’ controls (or “police powers”) were to be considered primary. The Slaughterhouse Cases decision was the first major decision in what Eric Foner describes as the 1870s judicial retreat from an expansive definition of federal power, which moved to restrict the scope of the postwar amendments. This retreat was a crucial development towards the end of Reconstruction, as Congress had placed much of the burden for enforcement of blacks’ civil and political rights on the federal judiciary. Slaughterhouse was the first judicial formalization of a return to state power as primary, over and against federal authority. See Eric Foner, Reconstruction: America’s Unfinished Revolution (New York: Harper and Row, 1988) 529; and Robert J. Kaczorowski, Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866-1876 (New York: Oceana Publications, 1985) xiii, 144. Yet this is not the only narrative concern that arises in the court’s opinions, and considering the slight 5-4 majority, (as well as its later employment as precedent in the Plessy opinion by Brown) it should not be read as the dominant one.

� Slaughterhouse, 49. Emphasis in original.

� Their sweeping history of the career of these terms evoke a well nigh Hegelian dialectic of lordship and bondage, which merits quotation at some length: “The thirteenth amendment prohibits ‘slavery and involuntary servitude.’ The expressions are ancient ones, and were familiar even before the time when they appeared in the great Ordinance of 1787. … In that ordinance they are associated with enactments affording comprehensive protection for life, liberty, and property; … for maintaining the inviolability of contracts, … and the unrestrained conveyance of property by contract and devise. … The ordinance became a law after Great Britain, in form the most popular government of Europe, had been expelled from that territory. … Feudalism at that time prevailed in nearly all the kingdoms of Europe, and serfdom and servitude and feudal service depressed their people to the level of slaves. The prohibition of ‘slavery and involuntary servitude’ in every form and degree, except as sentence upon a conviction for crime, comprises much more than the abolition of African slavery. Slavery in the annals of the world had been the ultimate solution of controversies between the creditor and debtor; the conqueror and his captive; the father and his child; the state and an offender against its laws. The laws might enslave man to the soil. The whole of Europe in 1787 was crowded with persons who were held as vassals to their landlord, and serfs on his dominions” (Ibid., 49-51. Emphases in original). The political economic persistence, or “survival,” of these “feudal,” hierarchical structures, is explored by Karen Orren in her Belated Feudalism. Focusing on the law of master and servant, Orren argues: “At the time the United States entered upon full-scale industrialization after the Civil War, its politics contained, at the core, a belated feudalism, a remnant of the medieval hierarchy of personal relations, a particularized network of law and morality – a system of governance – that the word ‘feudalism’ conveys. It had been dislodged neither by the American Revolution nor by the advent of the U.S. Constitution, but remained embedded within American government – as state within a state – dividing public power, limiting the reach of legislation, setting the bounds of collective action, well into the current century” (Orren, 3).

� Their analogical reading, while posing more expansive significations of “servitude” and subjection, also relies on a belief in the steady significations of other terms fundamental to the logic of free labor ideology: “Men are surely subjected to a servitude when compelled to refrain from the use of their own land and exercise of their own industry and the improvement of their own property”(Ibid., 51). In the logic of free labor, men are in subject, servile, positions when denied the means of independent production, of the things they “own”: property and the “industry” they possess in their social personhood.

� Ibid., 72.

� In his chapter on “So-Called Primitive Accumulation,” Marx had invoked a similar dialectic of visibility to describe the relation between slavery and capitalist wage labor: “In fact the veiled slavery of wage-labourers in Europe needed the unqualified slavery of the New World as its pedestal.” Karl Marx, Capital: A Critique of Political Economy Volume 1, trans. Ben Fowkes (Penguin, 1990) 925. For Marx, their difference is one of forms of appearance, of qualifications, of veils. Similarly, in “The Process of Accumulation of Capital,” Marx extrapolates his formulation of the commodity fetish to describe the social relations of production under the capitalist mode of production. In wage labor, the worker’s labor-activity, in addition to producing surplus-value, also produces variable capital, “the fund out of which he himself is paid, before it flows back to him in the shape of wages.” The worker confronts the product of his own labor-activity, capital, as a force alien to him. Even the wages the worker receives are the objectified “drafts, in the form of money, on a portion of the product produced by” him and appropriated by the capitalist. Yet the “transaction is veiled by the money-form of the commodity” Ibid., 712; 713; 717; 719. Describing the wage relation in “capitalist production in full swing,” Marx adds: “The Roman slave was held by chains; the wage-labourer is bound to his owner by invisible threads. The appearance of independence is maintained by a constant change in the person of the individual employer, and by the legal fiction of contract.” Marx’s analogy between the structural subordination of the worker necessary to capitalist reproduction and the status of the Roman slave throws into relief the mystification in that “appearance of independence” maintained by free market ideology’s “legal fiction of contract” – that is, the legal form in which the worker is imagined as “free” to sell his labor, and as one who is on equal terms with the capitalist. It is this very threat of such structural inequality that the butchers’ “argument against monopoly” registers, despite the plaintiffs’ continued faith in the concept of free labor. Slaughterhouse is particularly interesting in this regard, as the butchers still occupied the position of tradesman, and faced the prospect, with increasing incorporation and the growth of monopolies, of slipping into that class of “free-floating” workers, in the Marxian sense of those who sold themselves on the labor market as commodities. Their suit against the monopoly, and the narratives of involuntary servitude they invoked in argument, are attempts to prevent the expropriation of their little means of subsistence, to prevent their own transformation into “free labor” in that double sense described by Marx. Attempting to ward off this threat of proletarianization, the butchers’ maintain a claim to American free labor ideology and its fundamental “subject,” the independent laborer. Such an argument for the “right to labor” does not necessarily entail, however, an argument against wage-labor as such. The popular eighteenth- and nineteenth -century ideal of America as a republic of independent producers was indeed a persistent rallying concept in populist labor politics. At the same time, however, the period was marked by a rapid growth of industry – an increase in the very manufactures encouraged earlier by Alexander Hamilton’s federalist policies. In “On Manufactures” (1791) Hamilton in many ways predicts what would occur in the industrial North in the nineteenth century: the increasing specialization and division of labor, the increase in immigration, and the growing participation of women and children in labor outside the home. See Alexander Hamilton, “On Manufactures,” In Paul F. Boller, Jr. and Ronald Story, eds. A More Perfect Union: Documents in U.S. History, Vol. 1: To 1877 (Boston, 1996), 95-99. With the increasing industrialization in the North came a corresponding increase in wage laborers, and the consequent problematization of the republican ideals of independence (and dependence). As David Roediger points out, “the gradual transition to wage labor from 1800 to 1860 (and beyond) was an extremely serious matter for labor republicans.” For many labor radicals, however, the wage relationship in the 19th century “was compatible, at least temporarily, with a just society.” The recurring difference, in the case of ante-bellum America, is that for class formation within a slaveholding republic “comparisons with the truly enslaved also loomed.” Relative to the status of the slave, the position of the “hireling” wage laborer could be an attractive one (rather than the mercenary, dependent position of hirelings feared by Jefferson). The language of labor (and labor reform), in the early 19th century North, in its comparative gestures, “could lead to sweeping critiques of wage labor as ‘white slavery’ but it also could reassure wage workers that they belonged to the ranks of ‘free white labor’”(Roediger, 46). Indeed, this view can be seen in “The Republican Party Platform of 1860,” the famous formalization of free labor ideology. The Republican Party was founded on the slogans of “free soil” and “free labor.” The language of the Platform foregrounds the appeal of wage-labor as one possible form of independence: “[W]e commend that policy of national exchanges which secures to the working men liberal wages, to agriculture remunerating prices, to mechanics and manufacturers an adequate reward for their skill, labor and enterprise, and to the nation commercial prosperity and independence”(in Boller and Story, eds., 186). As with the language of radical labor reformers, the Republican Party Platform of 1860 links different types of wage labor with “independence.” Also, and perhaps more importantly, it refers to the skill, labor and enterprise of the white working men of its address. The importance of these references lies in their resonance with the language of white labor. Phrases such as “skill, labor, and enterprise” worked to reinforce white labor’s use of whiteness as a source of working-class identity and blackness, which in ante-bellum labor politics was its variously implicit and explicit other, as a signifier of servility and dependency.

� “Republicans had brought into the war an ideology grounded in the conviction of the superiority of free to slave labor, which saw the distinctive quality of Northern society as the opportunity it offered the wage laborer to rise to the status of independent farmer or craftsman.” Yet it was a social vision, Eric Foner describes, already being rendered obsolete by the industrial revolution and the appearance of a class of permanent wage laborers” (Foner, 28, 29). The multiple disadvantages of such an entrance into the free market of labor were only compounded by the rise of post-bellum liberalism, and the increasing disenchantment with Reconstruction. The extent to which such a rise in this conservative middle class view affected negatively upon the aspirations of freedmen should not be underestimated. Not only influential scholars like Francis Parkman but journal editors such as The Nation’s editor E.L. Godkin, argued, for example, in favor of the reformers’ “financial science,” enthusiastically modeled after the political economy of Adam Smith: free trade, the law of supply and demand, and the gold standard. Most significantly, they argued against an activist government. Such calls for limited government participated in the Northern retreat from efforts at economic and social uplift for the recently “emancipated.” (Foner, 498). Many of these liberals argued for educational and property qualifications for voting, and spearheaded the campaign for civil service reform. “Universal suffrage,” wrote Charles Francis Adams, Jr., in 1869, “can only mean in plain English the government of ignorance and vice: it means a European, and especially Celtic, proletariat on the Atlantic Coast, an African proletariat on the shores of the Gulf, and a Chinese proletariat on the Pacific” (Foner, 497). For Adams and other reformers, egalitarian ideas were an anachronism, expressive of the “unscientific sentimentalism” that characterized the ante-bellum era. The egalitarian claims made by blacks at this time were either ignored or suppressed in this growing antipathy towards the original ideals of Reconstruction. In the view of the new liberal reformers, Reconstruction demonstrated the dangers of unbridled democracy and the political incapacity of the lower classes (Foner, 497). “‘Reconstruction,” declared The Nation, ‘seems to be morally a more disastrous process than rebellion’” (Foner, 499). In an almost complete reversal, Reconstruction and its egalitarianism was far worse than the actual “rebellion” – that is, the rebellion of the Southern Confederacy – itself.

� Paradoxically, Judge Miller’s majority opinion in the Slaughterhouse Cases both affirms and contradicts the already conflicted integrity of free labor ideology, when he insists on maintaining, in all constructions of the post-war amendments, the “color” of their historical and legal subjects. It affirms, insofar as the narrative of the Civil War he recalls – in which “whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery” – is the story of two conflicting systems of labor: free labor in the North, slave labor in the South. Yet Miller also contradicts free labor’s basic precepts of mobility, vocational choice, and uncoerced labor.

� See Orlando Patterson, Slavery and Social Death (Harvard UP, 1982).

� Kaczorowski, 173-93; Foner, 530.

� If we look to the testimony of African-Americans at this time, we see that the recognition of this retrenchment was followed by attempts at some political agency in response to the turning tide. In the resolutions of the Rhode Island Negroes on the Republican Party, 1882, there appear explicit references to apparent betrayal by Northern republicans:

Resolved, That the Republican Party of our State has failed to properly recognize the worthiness and faithful devotion of its colored adherents; that its continues to do so in the face of earnest but respectful remonstrances.

Resolved, That while we cling to those principles which have made the party acceptable to the people...we affirm our determination to support that person let him be allied by whatever party he may be, if he shall convince us that he has the most regard for our rights and feelings as citizens of the State.

(Herbert Aptheker, ed., A Documentary History of the Negro People in the United States [New York: 1969]: 685).

The turn from the original ideals of Reconstruction, and the abandonment of its social programs, were recognized very clearly by the delegates to this black state convention. The recognition motivates them to suggest a break from the Republican party – a break historic in its contraposition to the traditional tie between the black vote and previous Republican party platforms. The resolutions also evince an understanding of the importance of the black vote at this time. Just as the delegates of the State Convention of the Coloured Voters of New York declared in their endorsement of the Republicans in 1870, “the party which predicted the ruin of the country if the negroes were allowed to vote are today moving heaven and earth the get the votes of these same voters.” Philip S. Foner and George E. Walker, eds., Proceeding of the Black National and State Conventions, 1865-1900 (Philadelphia: 1986): 422. The resolutions of these two Black state conventions, separated by a decade, reveal the persisting belief in the power and significance of the recently acquired suffrage, even as the later convention foregrounds their increasing disillusionment with the Republican party after the end of Reconstruction.

� Slaughterhouse, 69.

� “It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purposes of the article might be evaded, if only the word slavery had been used”(ibid., 69). The practice to which Miller alludes, of “reducing the [former] slaves to the condition of serfs attached to the plantation” in order to maintain them in slavery was widespread in the Southern states; and became even more so with the end of Reconstruction. In his report to President Andrew Johnson on conditions in the Southern states when the war ended, Major General Carl Schurz had attested to this: “It is, indeed, not probable that a general attempt will be made to restore slavery in its old form, on account of the barriers which such an attempt will find in its way; but there are systems intermediate between slavery as it formerly existed in the south, and free labor as it exists in the north, but more nearly related to the former than to the latter, the introduction of which will be attempted” (Senate Executive Doc. No 2, 39th Cong., 1st Sess., Vol. II, p. 32; cited in Herbert Hill, Black Labor and the American Legal System [Madison: University of Wisconsin Press, 1985] 66).

� Ibid., 72.

� Plessy, 550.

� The intermingling – and sometimes the interchanges – of “race” and “class” as categories of identification are prevalent throughout Plessy v. Ferguson, the Slaughterhouse Cases, Yick Wo v. Hopkins, and the various Chinese exclusions cases. While I do not claim that Brown here refers to “class” in the sense used today – i.e., as index of economic group affiliation in a social division of labor – my argument does proceed from the premise that such classifications as the “Chinese race” – when used to designate a population of laborers as is the case in Plessy, Yick Wo, and all nineteenth-century cases involving Chinese in America – entail the racialization of “class” and the class-ification of “race.” As I have argued with respect to the precedent-setting Miller decision of the Slaughterhouse Cases, certain “classes” of laborers correspond to certain “races.” My argument maintains a determinative effectivity for the ideology of “race,” even as it maintains, via labor, a reciprocal and equal effectivity for “class.” For a related (though more functionalist) argument on the “ethnicization of the work force” see Immanuel Wallerstein, “Ideological Tensions of Capitalism,” in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London: Verso, 1991) 29-36.

� Ibid., 550, my emphasis. Around the example of this other race-discrimination constellate several binaries, which are mobilized in turn against the plaintiff’s “construction” in Plessy regarding the “badge of servitude” entailed in the separate-but-equal legislation: reasonable vs. unreasonable exercise of the police power; good faith vs. “class” legislation; reasonable discretion vs. arbitrary and unjust discrimination. Such a series of mutually exclusive binaries ultimately rest not on any universal impartiality of the law, as Brown claims, but rather on the selective, particular interests of, in Brown’s own words, “the dominant power”( Plessy, 551).

� Saidiya Hartman analyses the police power and the court’s mobilization of “the social” in the final chapter of her Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (New York: Oxford UP, 1997). My reading of the Plessy decision agrees with her more detailed analysis as well as her conclusions regarding the inequalities produced and reproduced by it, though its specific focus will be upon other inequalities, namely, of labor and citizenship.

� Plessy, 550. The antinomies of Brown’s presuppositions, however, and the contradictions in his legal reasoning become most manifest in this very turn to “discretion.” Yick Wo v. Hopkins, Brown’s example of judicial action against an “unreasonable” exercise of the police power that had crossed the divide from reasonable “discretion” to unjust discrimination, contradicts the constructions of his earlier example of the Slaughterhouse Cases. The Slaughterhouse precedent restricted any construction of the Thirteenth and Fourteenth Amendments to the singular “purpose” and “pervading spirit of them all,” i.e., the ending of black slavery in the U.S. Indeed, Brown explicitly embraces such constructions in his own legal reasoning. The Slaughterhouse decision had insisted upon the centrality of black slavery in any construction of the Thirteenth and Fourteenth Amendments in order to deny the white plaintiffs’ claim in that case to a subject position described as “involuntary servitude.” Yet in contrast to the narrow constructions of the Slaughterhouse decision, both the Yick Wo decision and Brown’s citation of it as counterexample rely upon an expansive interpretation of the post-war amendments as their very ground of intelligibility. The court asserted in Yick Wo that the “Fourteenth Amendment to the Constitution is not confined to the protection of citizens. … [Its] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality” (Yick Wo, 309). The antinomies of Brown’s logic of reduction thus center upon the difference between “privileges” and “protections” as constitutive of freedom, as well as the ambiguous relation between those subjectivities distinguished in the amendments as “citizens” and “persons.” Indeed, it is this very ambiguity that Justice John Marshall Harlan, in his famous dissenting opinion, uses to argue against Brown’s opposition of the term “reasonable” discretion (enforcing black-white segregation) with the unjust “discrimination” of Chinese laborers in the Yick Wo case.

� Pierre Bourdieu, “The objective limits of objectivism,” in Outline of a Theory of Practice trans. Richard Nice (Cambridge University Press, 1998): “Thus the precepts of custom, very close in this respect to sayings and proverbs. . . have nothing in common with the transcendental rules of a juridical code: everyone is able, not so much to cite and recite them from memory, as to reproduce them (fairly accurately)” (17). For an elaboration of habitus as a strategy-generating principle for individual action and its relation to the field of the social, see “Structures and the habitus” in ibid., 72-95.

� “It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution … that at that the time of the adoption of the Constitution they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights and privileges but such as those who held the power and the government might choose to grant them” (Plessy, 559-60, my emphasis). Against Dred Scott’s inscription of a citizenship exclusive of the “subjugated” “class of beings” marked as “descendants of Africans,” Harlan recalls the post-war amendments, which, “it was supposed, had eradicated these principles from our institutions”(Ibid., 560).

� Plessy, 561. Saidiya Hartman argues, along with the dissenting opinion of Harlan, that the Plessy decision “revived the spirit of Dred Scott” (Hartman, 198). Hartman’s focus here is a symptomatic reading of the majority decision. I would go further to suggest that “Plessy” (including both its majority and dissenting opinions) not only resurrected Dred Scott but also revived, in significant ways, the exclusionary letter of the law inscribed in that antebellum decision – that is, the language of citizenship. I want to attend to the apparent paradox that Harlan’s’ laudable critiques of the Plessy decision and its inegalitarian implications rely on another set of exclusions. Also, despite their many differences Harlan’s dissent shares with the majority opinion certain identifications of race and labor that will prove fundamental to the labor hierarchies under (re)construction at this time.

� Ibid., 562, my emphasis.

� The historical exclusion to which Harlan’s Plessy dissent refers was codified in the Chinese Exclusion Acts of 1882; 1884; 1886; and 1888,� and its validity upheld in the Chinese Exclusion Case of 1889 (Chae Ping v. United States, 130 U.S. 581 (1889)). The exclusion act of 1882 was passed to carry into effect an 1880 treaty between the U.S. and China, which allowed the U.S. to “regulate, limit, or suspend such coming or residence [of Chinese laborers], but … not [to] absolutely prohibit it” (22 Stat. 826. Cited in “Opinion of the Court,” Chinese Exclusion Case, 596). In addition to “suspending” for ten years the emigration of Chinese laborers, the 1882 act made provisions for the identification of those Chinese laborers legally residing in the United States, i.e., of those Chinese laborers “who were in the United States November 17, 1880, or who should come within ninety days after the passage of the act” (Chinese Exclusion, 597). The appellant in the Chinese Exclusion Case, Chae Chan Ping, had resided in San Francisco for over twelve years, after emigrating in 1875. He left the United States June 2, 1887, in possession of the certificate required under the act of 1882.� Upon his return October 7, 1888, Chae was denied entry and detained, on the ground that his certificate had been annulled by the latest exclusion act, of 1888. Charles McClain notes that one “contemporary estimate put the number of Chinese holding return certificates at the time of the [Exclusion] Act’s passage at thirty thousand” (McClain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America [Berkeley: University of California Press, 1994] 194; citing the Examiner, Oct.3, 1888, p. 6, col. 2).

� In his elaboration of the “proper construction” of the Fourteenth Amendment established in the Slaughterhouse Cases, JudgeBrown had asserted that in addition to establishing the primacy of national over state citizenship, “its main purpose was to establish the citizenship of the Negro” (ibid., 543). Such a construction did not change the language of consensualism in which citizenship as such is defined. In the Taney court’s view, black subjects were only calculated into the Constitution as slaves – thus they were never considered part of the social compact through which the nation was founded. While Slaughterhouse constructed the Fourteenth Amendment as an overturning of Dred Scott and its slave-holding history, it maintains the figure of the social contract, which Taney’s Dred Scott decision had used to exclude “the descendants of Africans” from U.S. citizenship. Similarly, Harlan’s dissent emphasizes the specificity of black and white civic identity as the ground of freedom. While the Thirteenth Amendment “decreed universal civil freedom in this country,” it was “found inadequate” to its purpose, Harlan argues, and was thus supplemented by the Fourteenth, “which added to the dignity and glory of American citizenship … by declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside,’ and that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws” (Ibid., 555). In the wording of the Fourteenth Amendment, the privileges and immunities clause is limited to the “citizen,” while the due process and equal protection clauses apply to any “person” (Gerald Gunther, Constitutional Law [Westbury, NY: The Foundation Press, 1991] 409). Harlan’s citation and paraphrase of the supplementary amendment maintains the distinction between “citizen” and “person.” However, his distinction differs from Brown’s in that for him the supplementary “citizen” displaces “race” as the primary category of legal cognizance. While visible in the social person, “race,” according to Harlan, becomes invisible in the juridical figure of the citizen. Thus, Harlan states his famous and much-quoted line: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens” (Plessy, 559). Yet in his general conclusion on the amendments’ combined purpose of providing for individual freedom, Harlan elides the distinction between privileges and protections accorded to each subject category (i.e., of “citizen” and “person,” respectively), and speaks only of citizens’ rights: “These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship” (Ibid., 555). Through Harlan’s construction of the supplementarity of the Fourteenth Amendment, the already subordinate subject termed “person” is forgotten, and the “freedom” inscribed in the Thirteenth Amendment itself becomes possible only in and through citizenship.

� Harlan’s argument foregrounds, in other words, the imbrications of the language of citizenship with the ideology of assimilation, and the attenuation of universal humanist freedom in the particularity of national culture. Interestingly, Harlan’s view contradicts the racial classification of the Chinese in People v. Hall (1854), while affirming its racial-assimilationist logic. In this antebellum case, the California Supreme Court ruled that Chinese immigrants could not testify against a white person in a court of law. Delivering the majority opinion, Justice Murray argues that the Chinese were contained under the generic term: “Indian.” He goes further, however, to argue that, even if the Chinese were not to be understood as “Indians,” they would fall under the generic category of “Black,” as “contradistinguished from White” (People v. Hall [1854] 4 Cal. 399). Murray’s reasons for thus construing the legislative intent were posed as a matter of cultural difference: “The evident intention of the act was to throw around the citizen a protection for life and property, which could only be secured by removing him above the corrupting influences of degraded castes. It can hardly be supposed that any Legislature would attempt this by excluding domestic Negroes and Indians, who not unfrequently have correct notions of their obligations to society, and turning loose upon the community the more degraded tribes of the same species, who have nothing in common with us, in language, country, or laws.” His logic is an assimilationist one, insofar as its cultural implication is that “domestic Negroes and Indians” can have, by virtue of years of residence within and contact with Anglo-American institutions, a proper understanding of the social contract.

� Ibid., 606.

� As Field himself notes, “It declares in its first article” that the limitation or suspension of immigration “shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations.” Those Chinese subjects “proceeding to the United States as teachers, students, merchants, or from curiosity” are distinguished from this laboring class of Chinese emigrants (Ibid., 596).

� Ibid, 594.

� As I have argued with respect to Slaughterhouse, Plessy, and Yick Wo, the obverse of free labor ideology’s identification of abstract “free labor” with “white labor” is the racialization of other labor regimes – race-labor identities that sustain free (white) labor’s self-identification.

� Thus while in 1868 the Burlingame Treaty still declared “the mutual advantage of the free migration and immigration” of U.S. citizens and Chinese subjects,” by 1880 Congress would declare that “the coming of Chinese laborers to the United States … affects or threatens to affect the interests of that country” (Ibid., 596). I would add that “interests” here is a both capacious and multivalent term, which contains and can stand in for the economic, national, and “cultural” interests that gather around immigration exclusion.� Along with convicts, “Negro labor,” and “contract labor,” Chinese coolie labor epitomized this form of “cheap labor.” The campaign handbook of the Democratic National Committee in 1884 emphasized Chinese immigrant labor as especially threatening: “[I]t became necessary to protect the American workingmen on the Pacific slope from the disastrous and debasing competition of Coolie labor” (cited in David Montgomery, Citizen Worker [Cambridge UP, 1993] 144).

� If, for the court, “race” and “labor” are inextricably bound together, the disruptions of them by migrant labor return us to the concept of assimilation itself. David Lloyd has argued that culture, in “the sense of self-formation or Bildung,” can “be understood as a learning to be like what we should like to like. That is, as assimilation.” The structure of assimilation, according to Lloyd, is the structure of metaphor: “The constitution of any metaphor involves the bringing together of two elements into identity in such a manner that their differences are suppressed. Just so, the process of assimilation, whether in bringing two distinct but equivalent elements into identity or in absorbing a lower into a higher element as by metastasis, requires that which defines the difference between the two elements to remain over as a residue. Hence … the product of assimilation will always necessarily be in a hierarchical relation to the residual, whether this be defined as, variously, the primitive, the local, or the merely contingent.” David Lloyd, “Race under Representation,” in E. Valentine Daniel and Jeffrey M. Peck, eds., Culture/Contexture (Berkeley: University of California Press, 1996) 257-58. While Lloyd’s primary emphasis is on aesthetic culture rather than culture in the sense of “the totality of life forms of a particular group or society”(Ibid., 250), his formulation of assimilation as that bringing-into-identity of two distinct elements enables a better understanding of the demands of Field’s “public good,” when supplemented by our understanding of nineteenth-century race-labor identities. As the exclusive target and raison d’être of immigration prohibition, Chinese immigrant labor allows us to see how the question of the assimilation of culture (in both its aesthetic and anthropological senses) is also, and necessarily, one of the assimilation of labors.

� Smith, Civic Ideals, 17.

� My reading of the demand for assimilation is not to suggest, however, the complete success of such assimilation. The problems of such assimilation into “free labor” were great, and the formerly enslaved resisted political and legal attempts to reinsert them into another set of labor hierarchies. But this the topic of a longer investigation.

� Indeed, on this both the majority and dissenting opinions in Plessy agree: the social is divided from the civic realm of formal legal equality.

� Yet Chinese laborers, according to Field, “were content with the simplest fare, such as would not suffice for our laborers and artisans. The competition between them and our people was for this reason altogether in their favor” (Chinese Exclusion, 595). The differences of “race” in Field’s argument for exclusion are the differences in the needs of labor. For Justice Field, the “differences of race added greatly to the difficulties of the situation [of labor competition]. … [T]hey remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people or to make any change in their habits or mode of living. … [T]heir immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization” (Ibid., 595). Field’s emphasis on “racial” difference – translated here as differences in “habits or mode of living” – codes the threat to U.S. free labor as a threat to U.S. culture, and even to national civilization itself. We thus find here the source for Judge Brown’s invocation of the radically other “Chinese race” in Plessy v. Ferguson. Such a narrative of culture-as-race enables the representation of Chinese otherness as not only an inassimilable subject, but also as an unassimilable, and therefore constant, threat.

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