The Concepts of Freedom and Equality in the American Constitution

CONTENTS

PREFACE

1. THE LEGACY OF SLAVERY
1.1. The Social Place of African Americans Today: An Introduction
1.2. From the Abolitionist Movement to Reparations

2. SLAVERY, RACISM AND DEMOCRACY IN THE EARLY AMERICAN SOCIETY
2.1. The African American Population: Free and in Bondage
2.2. Prejudices Turning into Racism
2.3. The Sources of the American Constitution
2.3.1. The Shaping of the American Character
2.3.2. Preconstitutional Papers and Documents

3. FREEDOM AND EQUALITY AS PHILOSOPHICAL CONCEPTS
3.1. The Concept of Freedom
3.1.1. Freedom and the American Constitution
3.1.1.1. Freedom and Property
3.1.1.2. Freedom vs. Liberty
3.2. The Concept of Equality
3.2.1. Equality and the American Constitution
3.3. Freedom vs. Equality

4. EQUALITY AS ULTIMATE FREEDOM - A SHIFT OF PARADIGMS
4.1. From Freedom to Equality: Controversies and Contradictions
4.2. A New Approach and the Question of Reparations

5. EPILOGUE

BIBLIOGRAPHY

WEBLIOGRAPHY

PREFACE

On March 26, 2002, Deandria Farmer-Paellmann filed suit in a New York federal court to seek reparations for the slavery she states her ancestors endured. Although reparations have been debated in the political arena for years, this filing marked the first time that reparations claimants have sought compensations by suing private companies. Her lawsuit was brought against Aetna Insurance, FleetBoston Financial Corporation and the railroad company CSX, claiming those firms and others have profited from slavery.

The concept of reparations originated with Civil War General William T. Sherman on his infamous march to the sea across the Old South. Sherman faced the problem of about 20.000 freed slaves who became camp followers of the Union Army. Since he commanded an army and not a refugee camp, he decided to issue Special Field Order No 15, which granted each freed slave forty acres of land and the means to work it. In fact, there was more to it than a desire to redress the evils of forced servitude; Sherman was deep in enemy territory, and by promising land to the liberated he had every reason to hope that blacks might turn on their masters.

Today, the phrase of “forty acres and a mule” represents a promise broken by the government. After the victory of the Union forces, President Andrew Johnson ordered the freedman’s land returned to its former owners. Since then, the broken promise has been a symbol for continued injustices against the former slaves and their descendants. Although the Reconstruction Amendments were designed to guarantee those people a status of equality, legal justice did not necessarily mean justice in everyday life. The gap between intention and individual experience is a cultural heritage and still a political and social reality the whole American society suffers from. Thus, the filed suit by Ms Farmer-Paellmann appears to be successful.

In 1789, when the American Constitution was drafted, one of the basic principles was the one of a maximum expression of individual freedom, at least against the federal government. The Bill of Rights, the first ten amendments adopted in 1791, was designed to safeguard not only basic freedoms of speech, religion, and assembly. It carved out a space for each person to stand alone, free of governmental interference. Yet the Constitution of the first American Republic^[1] stood as well for the right of the white population to seize control over the lives of people having a black skin. Although this had not been distinctively expressed in the Constitution it was supported by Article I, Section 2, which classifies the American population as “free Persons”, “Indians” and “all other Persons”. This easily can be interpreted as a distinction regarding the citizen’s status and their right to vote since “all other Persons” were counted by only three fifth (three-fifth clause). In Article IV, Section 2, this classification was stated even more distinctively when referring to a “Person held to Service or Labour”.

The Civil War ravaged the country from April 1861 to April 1865. It began with one set of purposes and ended with another. The original motive for resisting Southern secession was preserving the Union, which was in danger due to a set of reasons. The resulting and final idea was to abolish the institution of slavery and reinvent the United States on the basis of a new set of principles. The center stage of this postbellum order has been taken by the so-called Reconstruction Amendments – the Thirteenth, Fourteenth and Fifteenth Amendments – ratified in the years 1865 to 1870. These amendments displaced constitutional articles supporting race-related injustices since the term “all other persons” meant nothing else than the African tribesmen, who were shipped from Africa to America especially with the object to be slave workers. Now the Fourteenth Amendment, which was adopted in July 28, 1868, stated in Section 2: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Slavery as such was legally abolished by the Thirteenth Amendment, Section 1 by ruling that “Neither slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction”. In general, this so-called second constitution^[2], as whose preamble the Gettysburg Address has widely been interpreted, emphasized not individual freedom but equality under law as it is “dedicated to the proposition that all men are created equal ... The state would have to do more than leave us alone. It would have to ensure the equal protection of the laws for all.”^[3] The Civil War called forth a new constitutional order with principles rather different from the original Constitution represented also by the sharp contrast between the two opposites of freedom and equality.

This exactly is the focus of my paper. It intends to relate the concept of freedom to the concept of equality concerning the political and social backgrounds of those years. Therefore I regard it important to go back to the origins and traditions of the two concepts and the history of the American Constitution. Moreover, it is my special interest to draw the line from the somehow philosophical approach to the cultural and social conditions of that time as much as to the current debates on reparations. Furthermore, to display the obstacles for the Founding Fathers in formulating a constitution designed to include each and every citizen (here also it may be helpful to discuss the term citizen) the problem of slavery and its history along with current consequences will be granted the space necessary. Hence, the paper will attempt to represent historical developments as an integrated part of the Zeitgeist at that time.

Among the developments to be described is the way of how prejudices resulted in racism and what influence they have on American society today. The average person’s view will be worth a look as much as the conflict the Founding Fathers were exposed to - the conflict between the liberal ideas of their time and the everyday life they were part of. Concerning this I will work with various sources among which are private correspondence of politicians, governmental and legal documents. As to the time my examinations will be directed primarily to the period from around the American Revolution to the postbellum period of the Civil War due to the fact that the contrast between intention and reality appears to be most obvious at that time. Certainly, also the outcomes of the Civil War and of the postbellum period will be discussed, since the legal structure for the American society of today regarding equality was mainly written down then. However, the focus of my paper will be on the contradictions and the struggle which evoked these basic structures.

My special interest is the current debate on reparations linked with Ms Farmer- Paellmann’s lawsuit, because it verifies the fact that the foundations laid in the so-called second constitution are still in need to become reality and thus represent an ideal. Hence, those struggles can not be considered over. They are still a latent part of the political life and influence our time so immensely. Being a burning question, the controversy on reparations as such reflects a recurring antagonism in American history;

a history of a nation which likes to present itself as a place offering equal chances for everyone. Thus, the relation to contemporary issues plays an important role in my paper and marks its starting-point. My way will be to analyze the links between the lawsuit and the paradigmatic constitutional shift from freedom to equality. Moreover, the shift will also be analyzed in the light of the lawsuit to suggest a distinct reading and an approach which is relevant for the current debate.

The way to argue the subject is constituted by the necessity to explain and analyze the causes for and backgrounds of current problems. Due to the alteration of attitudes throughout the time and to the fact that today’s standards can hardly be used to measure historical developments, it appears to be problematic to value yesterday’s injustices on the one hand. On the other hand, it is essential to analyze those injustices and to relate them to the whole body of ideas and attitudes that composed early American society. Also, it is necessary to name those injustices and their causes and to realize their consequences for democratic societies today in order to constructively face prejudices and remove social deficits.

Accordingly, my paper is structured into several thematic parts.

The chapter “The Legacy of Slavery” is meant to be an introduction to the motive the lawsuit is inspired by and its topical relation to the conditions the largest minority group in the United States lives in currently.

Being twofold, the chapter is constituted firstly by a short description of the African American’s social place in comparison to other ethnic groups in the United States today, especially the white middle class. Such a comparison serves as an instrument to display the differentiation or rather division between a black and a white experience. Although focussing on facts and figures, I attempt to give an idea that true equality is still an ideal.

Secondly, I intend to provide an introduction to the target and motive of Ms Farmer- Paellmann’s lawsuit symbolizing it as a means in the struggle to overcome yesterday’s injustices and its present consequences. For a better understanding, such an introduction must be embedded in a wider discourse dealing with the struggle for emancipation of the African American population in general, whose provisional highlight is represented by the lawsuit.

The second chapter will present an overview of the historical backgrounds being fundamental for the current situation. Its purpose is to illustrate the Zeitgeist marked by various ideas and attitudes, which created a National Character. By providing information on the conditions and ideas in early American society a picture will be drawn here of innate struggles and antagonisms resulting in a war and eventually a lawsuit filed around 200 years later.

On the one hand, the paper will describe the social situation of African Americans at that time and also the origins and way of appearance of racial prejudices which then supported the institution of slavery.

On the other hand, one will find a general explanation of the actual sources of the American Constitution regarding the shaping of the American Character in connection with basic philosophical ideas. This includes the work with preconstitutional papers and documents mirroring the Founding Fathers’ realization of slavery being an issue which bears the danger of becoming a major problem to the new republic.

The chapter “Freedom and Equality as Philosophical Concepts” will have its focus on the two philosophical concepts which are most fundamental for the American Constitution and, according to the headline, also for this paper. Consequently, this chapter must be considered the very basis for the discussion following.

By offering a general definition of freedom and of equality the paper will relate them to the ideas which led to those two concepts. Therefore they need to be analyzed in a broader context of ideas of that time. Here, the cultural concepts provided before will be supported by a philosophical approach in order to supply a scientific backing. Both of the philosophical concepts along with their cultural dimension have its distinct place in the American Constitution. Since this is the paper’s central subject all other topics are directed to, an analysis of this interdependence appears to be elementary. But even more, these analyses lead to problems which latently underlie the cultural concepts and thereby need to be examined. Such problems include the connection between property and freedom and the distinction between freedom and liberty.

The following chapter will illustrate the way that led to the shift from freedom to equality and the shifting process itself. Here cultural, social, and philosophical approaches will be combined by collecting the results of the analyses, the definitions, and all arguments developed earlier. This will include the political and the moral struggles as well as the struggle for emancipation of the African Americans. The institution of slavery and the abolitionist movement will be presented as an integrated part of the shift if not as the most influential factor for it.

In addition, the consequences of the shifting process will be demonstrated. That means the new approach referring to the focus on equality will be defined with the help of its philosophical concept and in comparison to the concept of freedom. This is essential for preparing a basis to discuss the lawsuit’s connection to the shift. Such discussion will include the linking of the claims to the actual historical situation and the examination of the direct connection between the new focus on equality and the question of reparations. Therefore it appears to be essential to differentiate between the lawsuit’s motive and its stimulus.

In the Epilogue I will formulate a final statement and propose a starting-point for a possible further discussion by giving an outlook to the problems triggered by the lawsuit and its results. Intending to present a coherent argument this chapter will also include an evaluation in regard to questions which could not be answered and problems which could not be solved.

Since the impact of slavery on a paradigmatic constitutional shift in the context of current debates on reparations is in the center of attention I definitely need to answer the question conclusively whether there is a connection between slavery, this shift, and reparations. Therefore the issues that have partly been raised in the introductory chapter “The Legacy of Slavery” and which have been related to in the chapter “Equality as Ultimate Freedom – a Shift of Paradigms” will be taken up: Has only the shift made the lawsuit possible and will a decision end the shifting process, or, can reparations fulfill the dream of African Americans to become equal in a sense of improving their social status in their daily life? This context is most important for exploring further questions that are central for this paper, such as: What sense do reparations make at all? Here a line will be drawn to reparations that have been paid in the past. What was the payment’s purpose and in which way were they made? Which results were evoked by the payments?

1. THE LEGACY OF SLAVERY

Forty acres and a mule - these words still resonate across the African American community and are the nexus for a reparations lawsuit recently filed in New York. While scholars are divided on the ultimate legality of General Sherman’s order, they agree that America today would be a far different place had the freed slaves been settled onto lands they had worked for generations.

The results of diversion and transfer of income and wealth from African Americans to white Americans over 400 years is the central topic of this chapter, which in the first part will present an introduction to the social place of African Americans in the U.S. society today in comparison primarily to the white population. Not intending to cover the whole issue but to present an overview, facts and figures will be the main components. Furthermore, this chapter will provide information on the lawsuit’s argument and motive to introduce the reader to questions being fundamental for the paper’s discourse: Where is the connection between injustices from long time ago and current social problems? What required this filing and makes it useful even today? Which ideological goals are included in the lawsuit? For a better understanding it will be embedded in the wider context of the history of the struggle for emancipation of African Americans. Thus, a connection will be established to the part introducing the social conditions they currently live in. “The Legacy of Slavery” is so to speak an introduction to and the matrix for the underlying subjects of the paper’s topic as a whole.

1.1. The Social Place of African-Americans Today: An Introduction

African-Americans constitute 12.9 percent of the total U.S. population^[4] today. According to the “Census 2000”, 54 percent of the African American population live in the South, 19 percent in the Midwest, 18 percent in the Northeast, and 10 percent live in the West^[5]. The South has as well the highest proportion of African Americans in its total population: 20 percent in the South compared with 12 percent in the Northeast, 11 percent in the Midwest, and 6 percent in the West. Although a migration wave after the Civil War brought a large number of them to the Northern states, the majority of African Americans still live in the South. But if they settled in the North, it obviously occurred mainly in big cities, where they could live more freely than in small communities due to anonymity and the demand for labor force.

In recent decades, African Americans have made great strides and their middle class, which is sometimes called “black bourgeoisie”^[6], has grown substantially. Today almost half of all employed African Americans hold “white-collar” jobs – managerial, professional and administrative positions rather than service jobs or those requiring manual labor. Yet the unemployment rate among them is about 4 percent higher than that of White non-Hispanics^[7].

In 1999, 24 percent of African Americans were poor compared to 8 percent of White non-Hispanics. The child poverty rate was generally higher: 9 percent for White non- Hispanic and 33 percent for African American children. Married couples have lower poverty rates than other types of families. About 83 percent of White non-Hispanic families and fewer than half of all African American families were maintained by married couples. Families maintained by women with no husband present are among the poorest. 44 percent of African American families and only 13 percent of White non- Hispanic families were of this type.

The proportion of the African American population aged 25 and older with a high school diploma was 79 percent, 10 percentage points lower than the proportion among White non-Hispanics in 2000. In comparison to the 1989 figures when the difference was 16 percentage points, this represents a significant improvement. 17 percent of the African American population held a bachelor’s degree or more in comparison to 28 percent of the White non-Hispanic population.

Regarding average income, the figures demonstrate that it is still lower than that of White non-Hispanics. The African American median household income was $30,439 in 2000, up remarkable 5.5 percent from $28,848 in 1999. The figure of a median income of a White non-Hispanic household was $45,904 for 2000; the same as in 1999.

But what is the relevance of these figures? Do they imply cogently that this situation represents a legacy of slavery? Among the people who disagree is the conservative David Horowitz. He published “Ten Reasons Why Reparations for Blacks is a Bad Idea for Blacks – and Racist Too” in January 2001. In reason No 6 he states that “no evidence-based attempt has been made to prove that living individuals have been adversely affected by a slave system that was ended over 150 years ago”^[8]. He compares the African American middle class, which today is a prosperous community, with the “black underclass”^[9] stating that this is the evidence for “the result of failures of individual character rather than the lingering after-effects of racial discrimination”^[10].

His second evidence is a comparison of African Americans with the descendants of “West Indian Blacks”^[11], a term which unfortunately can not be found in the Census. Those people’s average incomes are, according to Horowitz, equivalent to the average incomes of whites (White non-Hispanics). His second reason contains the information that “the GNP of black America is so large that it makes the African-American community the 10th most prosperous ‘nation’ in the world”^[12].

Among the supporters of reparations, however, it is widely accepted that there exists a debt not exclusively for the slave labor but especially for the recent past and for contemporary life. George Schedler has no doubt that “descendants deserve whatever damages were owed to ancestors, which, because they were unpaid, led to the descendants being at a disadvantage”^[13]. In his book “The Case for Black Reparations”, Boris I. Bittker states, aiming at legal segregation: “In actuality, slavery was followed not by a century of equality but by a mere decade of faltering progress, repeatedly checked by violence”^[14]. The “segregated but equal” doctrine was intended to be understood by public officials as meaning “separate even though unequal”, since African Americans, not whites, are said to attend segregated schools. This argument implies necessarily “that it is blacks rather than whites who are separated from the mainstream of society”^[15]. Thus, slavery was succeeded by a system of segregation that was based on the assumption of white superiority. The central part of the American dilemma, as described by Gunnar Myrdal in1944, was the lack of public challenge to white supremacy or the propriety of segregation. The soul-searching began when the racial laws of the Nazi regime stimulated a comparison with domestic American rules. Yet segregation remained intact until social, economic, and geographical mobility stood in contrast to the preservation of old systems. The civil rights movement of the 1960s, realizing a chance to challenge the destabilized system, gave the African Americans for the first time a true voice for fighting for emancipation and equality. Today they are not longer expected to leave a bus seat at a white man’s disposal. Segregated schools are history. But the distribution of chances is still linked to skin color. Bittker claims that “the status of American blacks today stems unmistakably from the years when segregation enjoyed the nihil obstat of Plessy v. Ferguson”^[16].

Slavery was not only a system of economic exploitation, it rather influenced every dimension of life. Race still regulates unconsciously the perception and determines identity by stereotyping. The Census’ figures and even its construction are evidence enough. The decisive factor of the African American’s lack of power until today is the degradation and devaluation of their ancestors in slavery. The consequences are still a part of the African American’s daily life. The economic chances of their youngsters can be considered worse than those of their white counterparts although progress has been made. Thus, a climate of despair is the legacy of their cultural trauma. In this sense, this paper follows the argumentation of supporters of reparations.

1.2. From the Abolitionist Movement to Reparations

Among the flood of immigrants to North America, one group came unwillingly: Africans. 500,000 of them were brought over as slaves between 1619 and 1808, when importing slaves into the United States became illegal. The practice of owning slaves and their descendants continued, however, particularly in the agrarian South, where many laborers were needed to work the fields. With the extension of the cultivation of cotton and slavery, which is considered the reason for the economic rise of the New World, the slaveowners grew stronger and formed a ruling oligarchy. Relying on its political machine the slaveholding oligarchy succeeded, from 1820 onwards, in achieving the Missouri Compromise, according to which for every free state admitted to the Union a slave state had also to be admitted.

Besides economic and political pressure of the Northern industry the slaves themselves were a very important motivating force in the struggle against the system of slavery. Among the peaks of their resistance were the Gabriel Plot of 1801 in Virginia and the Vesey Slave Plot of 1822 in South Carolina. The Nat Turner Insurrection of 1831 in Virginia was in its social character the most broadly-based and comprehensive of all slave revolts in North America. Inspired by the activation of the movement of the slaves themselves, the abolitionist movement led both by whites and free African Americans intensified its activities. In 1831, the New England Anti-Slavery Society was organized by William Lloyd Garrison (1808-1879) and in 1833 the American Anti-Slavery Society was created. In about 1840, there was formed a revolutionary organization based on the cooperation of the most varied social and political forces, the Underground Railroad. It represented an organized network covering the whole country for planning and carrying out the flight of slaves to the North. The experience of this organization allowed Frederick Douglas in 1848 to propose a strategy of abolitionist struggle based on an alliance of abolitionism with all democratic movements. Such an alliance met the real demands not only of the slaves but also of the whole democratic popular movement and even those of the industrial capitalists of the North.

The process of ending slavery began in April 1861 with the outbreak of the Civil War. On January 1, 1863, midway through the war, President Abraham Lincoln issued the Emancipation Proclamation, which abolished slavery in those states that had seceded. Slavery was abolished throughout the United States with the passage of the Thirteenth Amendment to the country’s Constitution at the end of the Civil War in 1865.

But even afterwards, however, African-Americans were hampered by segregation and inferior education. In search of opportunity, they formed an internal wave of immigration, moving from the rural South to the urban North. But many of them were unable to find work; by law and custom they had to live apart from whites. The South’s weapon to maintain a system of racial exploitation was not lawlessness, but the law. The so–called Black Codes were passed: statutes which, far from conferring on the freedmen the right to vote, denied them all but the most rudimentary civil rights and liberties. Provisions varied somewhat from state to state, but on the whole it is true to say that the codes tried to maintain the slavery laws.

In 1909, however, the National Association for the Advancement of Colored People (N.A.A.C.P.) was founded by W.E.B. Du Bois and a group of his supporters along with white progressives sympathetic to their cause. Marcus Garvey, born in Jamaica in 1887, became one of the first leaders of the African Americans. He attracted a wide following with an ideology of black nationalism and encouraged African Americans to take pride in their own achievements and in their own race.

In the late 1950s and early 1960s, African-Americans led by Dr. Martin Luther King, Jr., used boycotts, marches, and other forms of non-violent protest to demand equal treatment under the law and an end to racial prejudice. He advocated and practiced civil disobedience to what he termed “immoral laws”. A climax of this civil rights movement took place on August 28, 1963, when more than 250,000 people of all races gathered in front of the Lincoln Memorial in Washington, D.C., where the leaders of the march met with President Kennedy and then several spoke to the assembled crowd. King, considered the most eloquent and successful spokesman for racial justice of his time, electrified the audience with his now-famous “I Have a Dream”-speech:

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at the table of brotherhood ... I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.^[17]

The following year, at the insistence of King and his followers and with the prodding of President Lyndon B. Johnson, U.S. Congress passed the first civil rights bill since 1875 prohibiting discrimination in voting, private and public housing, education, and employment. The march from Selma to Montgomery in March 1965 to press for a voting rights bill was almost stalled as the opposition gained strength. By this time, moreover, some segments of the civil rights movement began to lose confidence in non- violence as a means of achieving equality. Although the Voting Rights Act became law in 1965, King’s efforts to fight discrimination in Chicago were less than successful the following year. The old tactics of picketing, boycotting, and demonstrating were unfruitful. White backlash and more subtle forms of discrimination immeasurably complicated the task. His assassination in 1968 set off several days of rioting in some cities.

In recent years, the focus of the civil rights debate has shifted. With anti-discrimination laws in effect and African Americans moving steadily into the middle class, the question has become whether or not the effects of past discrimination require the government to take certain remedial steps. In the course of the debate the affirmativeaction program has been launched. It refers to “a policy of preferring a qualified minority candidate over equally (or better) qualified nonminority candidates”^[18]. This may include hiring a certain number of African Americans or members of other minorities in the workplace, admitting a certain number of minority students to a school, or drawing the boundaries of a congressional district so as to make the election of a minority representative more likely. The public debate over the need, effectiveness, and fairness of such programs became more intense in the 1990s.

Besides these governmental measures, another way of seeking justice has been introduced by a group of African American lawyers and academics, who founded the Reparations Coordinating Committee. They prepare lawsuits against companies that profited from slavery before 1865, when slavery became illegal. Apart from violating human rights, slavery was legal in the United States until the passing of the Thirteenth Amendment. Also, the crimes were committed too long ago to be punishable now and neither the suitor nor the defendant is personally affected. There is nothing to be decided upon in court. The goal pursued is to discuss the issue publicly. That is why the strategy of the lawyers is determined by the necessity to find companies that react upon public accusation sensitively. So the claim is on restitution for unjust profit.

Ms Deandria Farmer-Paellmann, a woman whose ancestors were slaves sued three companies for allegedly profiting from slavery for nearly two centuries. The lawsuit, which is filed against the Aetna Inc., the FleetBoston Financial Corporation and the railroad giant CSX on behalf of the 35 million American descendants of African slaves has been the first to seek slavery reparations from private companies. Ms Farmer- Paellmann spent five years researching the topic after applying at law school. Her intention is to build the case for winning slavery reparations. Any damage won from the lawsuit would be put into a fund to improve health, education and housing opportunities for African Americans.

In seeking unspecified damages, the lawsuit claims that as many as 1,000 unidentified corporations may have benefited from slavery between 1619 and 1865. The lawsuit seeks class-action status and could be expanded to include more companies as it has been done in the series of Holocaust lawsuits, which blazed the legal trail for the slavery action by setting a precedent in making banks and insurance companies pay damage to victims.

The lawsuit’s argument is that slavery is a wound that fails to heal, condemning African Americans to more poverty, unemployment, poor education and clashes with the justice system than other Americans. They lag behind whites to every social yardstick: literacy, life expectancy, income and education. They are more likely to be murdered and less likely to have a father at home. That means that besides having been enslaved African Americans still suffer from the consequences of racial segregation.

Proper compensation for slavery merges with compensation for segregation insofar as the failure to provide equal opportunity for freed slaves is perpetuated in de jure segregation.^[19]

But the lawsuit itself aims at compensating the descendants of slaves for their ancestor’s unpaid labor. However, its justification is, according to experts, rather questionable since slavery was legal at that time.

If the emancipation of blacks during and after the Civil War had been followed by their absorption into the mainstream of American life, it is conceivable that the only identifiable residue of slavery in today’s world would be cultural – the folklore, songs, literature, and myths of an earlier era.^[20]

That is why the lawsuit primarily intends to trigger a public debate, in whose wake the sued companies are forced to admit a debt that they are willing to repair.

2. SLAVERY, RACISM AND DEMOCRACY IN THE EARLY AMERICAN SOCIETY

After having described the lawsuit and its relation to current living conditions of African Americans, this chapter discusses the historical roots of the division of U.S. society into a black and white section. The paper’s supposition is that the reason for the present social inequalities is rooted in history and can be subsumed under the terms slavery and segregation.

Regarding terminology, I will use the term African Americans to describe Africans who were brought to the English colonies in America since they can easily be considered a distinct part of the American society. Some of them lived in North America in a second or even third generation at that time. Yet it does not refer to a status of citizenship

2.1. The African American Population: Free and in Bondage

In the newly established settlements land was plentiful, labor was scarce, and a cash crop was desperately needed. Due to these economic conditions three major systems of labor emerged. One, which coincided with the first settlement in America was indentured servitude. It was linked to chattel slavery, which was, in relation to time, the last to appear. The third major system - free wage labor - was present from the beginning. The vast majority of Africans, who were brought to America, however, were slaves. The system of slavery was based on economic necessity. But the main reason for enslaving Africans exclusively was racism.

The first Africans landed in Virginia in 1619. Unfortunately, very little is known about their status. Between 1640 and 1660 there is evidence of enslavement, and after 1660 slavery crystallized in the statute books of Maryland, Virginia, and other colonies. The flooding of Africans into America began by 1700. Then, 25,000 African slaves lived in English North America. That was only ten percent of the total non-Indian population. Sixty years later, however, the number had increased to approximately a quarter of a million. The majority of them concentrated in the Southern colonies, where they were already beginning to outnumber whites in some areas.

Although Africans were generally referred to as slaves, some of them were free. For a time, some Africans were treated much like white hired servants, and some were freed after a fixed term of servitude. A few of them themselves became landowners, and some apparently owned slaves of their own. The general situation of free Africans in America, however, was hardly the same as that of their white counterparts. Since slavery was first of all a racial system, the issue of color also expanded to Africans who did not live in bondage – “free Negroes were essentially more Negro than free”^[21] – due to which the tendency towards barring all African Americans from full participation in the white man’s world became a widespread pattern.

The flowering of racial slavery had crowded out the possibility, which had once been perhaps close to an actuality, that some free Negroes would think of themselves as full members of the white community.^[22]

Those patterns even were reflected in law. In 1668, the Virginia Assembly’s declaration ruled that they “ought not in all respects to be admitted to a full fruition of the exemptions and impunities of the English”^[23]. Such restrictions could be the exclusion from the militia and from the polls, the barring from testifying against white persons or from sexual relations with whites. In addition, they were taxed more heavily than whites and prohibited from owning real estate. Sometimes they were even included in certain provisions of the slave codes. If not by law they were usually barred by local custom. Although during the Revolutionary Era Americans suddenly came to question not only the rightness of slavery but also to realize for the first time that they had a racial problem on their hands, the situation of African Americans did not quite change. With these patterns in full effect even prominent people were not able to get rid of long accumulated traditions concerning this issue. Thomas Jefferson combined publicly and painfully a heartfelt hostility to slavery and a deep conviction that African Americans were inferior to white men and the lesser intelligent. But the tide of events during the Revolution moved in their favor. Before the war was over, Pennsylvania had passed a gradual emancipation act with a high-toned preamble written by Thomas Paine. Some Africans won their freedom by fighting for the American cause since the necessities of war pulled both free African Americans and slaves into the armed forces. From 1790 to 1810 the proportion of free African Americans in their total population shot from almost eight percent to more than thirteen percent, which equals a number of around 2,500 (in 1782) and 30,000 (in 1810).

The increase was greatest in the Upper South (Maryland, Virginia, Kentucky). Attempts to deal with this problem challenged important modifications in the attitudes of all Americans. Mounting hostility towards free African Americans led to recapitulating, extending, or strengthening of most traditional restrictions on their freedom. Whenever Congress laid down suffrage requirements, African Americans usually were excluded, e.g. in the District of Columbia in 1802 and in the Mississippi and in the Indiana territories in 1808, though not in the Illinois territory in 1809. Throughout the free states, however, free African Americans were legally entitled to vote, even before slavery was abolished. Thus, a free African American community emerged. Its existence inspired flight in slaves and also it became a center for the development of institutions very important to the entire African American population after 1863 and the Emancipation Proclamation. It was the African church, which became the significant social unit, beyond the home. By 1860, the number of free African Americans had reached 488,000 in comparison to nearly twenty-seven million free whites. The number of African Americans in general had mounted steeply in proportion to the white through the eighteenth century, and by 1790 had come to constitute nearly half the total population. Generally, African Americans were recognized as a dangerous element. The rise of free African Americans in proportion to slaves during the Revolutionary Era greatly increased this sense of danger.

As for the free Negro’s position in the community, the association of slavery with race had transformed a free black man into a walking contradiction in terms, a social anomaly, a third party in a system built for two.^[24]

Planters wished to keep freed African Americans at a distance from their slaves by getting them out of the state if possible. Adult freedmen did not fit into a new scheme for humanizing treatment of perpetual children, which is called domestication.

The majority of African Americans and newly arrived Africans, however, were forced to serve as slaves, meaning a total judicial and economic dependency of one person from another, which equals a slave’s state of being another person’s property. In contrast to slavery in Latin America, where slaves were carriers of certain rights, slaves in the English colonies were not granted any individual rights. This difference went back to religious traditions insofar that the colonial doctrines of Catholic countries were rooted in ancient, Islamic, and the ideas of natural right, which led to general equality in regard to a slightly more humane treatment of the slaves in contrast to the decentralized- governed colonies of Protestant countries. There, by the late seventeenth century a more rigid distinction was emerging between people of African descent and whites. White beliefs about the inferiority of the African race reinforced the growing rigidity of the system. They had long ago defined themselves as a superior race in their relations with non-European populations. Therefore the idea of subordinating an inferior race was already part of European thinking by the time substantial numbers of Africans appeared in their midst.

Since the economic rise of the South was based on slavery, the system had been perfected more and more.

By the end of the seventeenth century in all the colonies of the English empire there was chattel racial slavery of a kind which would have seemed familiar to men living in the nineteenth century.^[25]

What separated slavery from other conditions of servitude was that it was restricted to people of African descent, that it was permanent, and that it passed from one generation to the next. While there is no agreement on whether racism was a product or a cause of slavery, there is no doubt that the institution of slavery grounded on racial attitudes since slaves were exclusively of African descent. It is widely accepted that slavery and racial discrimination were completely linked together. Thus, “[b]y the end of the seventeenth century dark complexion had become an independent rationale for enslavement”^[26]. Indeed, this was reality for the majority of African Americans over almost the next two centuries. At about 1790, 700,000 slaves lived in the United States. Seventy years later their number had increased to 4,000,000. Between 1790 and 1807 the United States imported more African slaves than during any twenty-year period of the colonial era.

Whether fear of free African Americans or the economic motive of conserving slavery after the close of the slave trade was more important in the development of the so-called domestication is still a question. But the result was the same. The Virginia legislature opted, in the first twenty years of the 19th century, for a course designed to make slavery a safe and profitable institution, and one that did the private conscience of slave owners as little violence as possible. Other Southern states followed suit. New laws consolidating the regime, by reducing society’s fear allowed masters to heed those other new laws requiring more humane treatment. The result was a more regular and systematic labor system, obtained more often by the thread of force than its employment. The ending of the importation of slaves from Africa, which became federal law in 1808, forced masters to look after their property better: “The time has been that the farmer could kill up and wear out one Negro to buy another; but it is not so now”^[27], one planter remarked in 1849. To retain the reputation of a “good master”, a “patriarch”, as he liked to call himself, had to provide decently for “his people”, as he liked to call them. We can find this picture also be drawn in Harriet Beecher Stowe’s novel “Uncle Tom’s Cabin”. The result that slaves sometimes felt like living in a caring domesticity helps explain the rarity of organized revolt on southern plantations. This is also partly true for slavery in the eighteenth century, when some “masters” liked to think of themselves as “fathers”. In 1726, William Byrd of Westover wrote in a letter to the Earl of Orrery: “Like one of the Patriarchs, I have my Flocks and my Herds, my Bonds-men and Bond-women.”^[28] Byrd had to “take care to keep all my people to their Duty, to set all the springs in motion, and make everyone draw his equal share to carry the Machine forward.”^[29] As master, the slaveholder presided over not one, but three interlocking domesticities: his blood family, the slave families, and the larger family of the plantation community. With the help of his wife he strove to create on his plantation an orderly world, where slave were “well-fed” and properly cared for, and to see that they worked hard enough to raise his crops, keep him solvent, and provide the entire plantation with the essentials of life. But this domestic world was much more complex.

[...]

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^[1] Fletcher, 3.

^[2] Ibid.

^[3] Ibid.

^[4] http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf, 1.

^[5] The South region includes the States of Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, District of Columbia. The Midwest region includes the states of Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Wisconsin. The Northeast region includes the states of Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont. The West region includes the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming.

^[6] D’Souza, 239.

^[7] The term White non-Hispanic is used to indicate the White population minus that part of this group that is of Hispanic origin. People of Hispanic origin are those who indicated that their origin was Mexican, Puerto Rican, Cuban, Central or South American, or some other Hispanic origin. People of Hispanic origin may be of any race, since origin refers to ethnicity, not race.

^[8] Horowitz.

^[9] Ibid.

^[10] Ibid.

^[11] In the U.S. Census this term does not exist. African Americans are considered one homogeneous race, no matter where they originally came from. As we know, the first African slaves were deported to the West Indies. Later some arrived in colonial mainland America. People descending from the West Indies are also referred to as Hispanics.

^[12] Horowitz.

^[13] Schedler, 114.

^[14] Bittker, 12.

^[15] Ibid, 14.

^[16] Ibid, 13. In 1896, the Supreme Court held that states could require the separation of African Americans from whites in railroad cars.

^[17] I Have a Dream.

^[18] Schedler, 133.

^[19] Schedler, 95-96.

^[20] Bittker, 10.

^[21] Jordan, 123.

^[22] Ibid.

^[23] quoted in: Ibid.

^[24] Jordan, 134.

^[25] Jordan, 98.

^[26] Ibid, 96.

^[27] quoted in: Brogan, 290.

^[28] quoted in: Rose, 21.

^[29] quoted in: Ibid.