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Student Blogger - #13Amend Live Blog: Closing Keynote Address

Rebecca Scott's goal with the keynote was to put the arguments made at this conference in a transnational frame. It was observed earlier in the conference that redemptive history with its focus on the way that things could have been, can become ahistorical. The questions and answers are largely hypothetical, giving cause to doubt whether the suggestions are feasible and making it difficult to see what the consequences of a different regime would have been. Exploring the ways in which other nations have dealt with abolition and the ways that the individual states dealt with the freed slaves has many of the virtues of redemptive history, without the vices. Additionally, this framework will allow us to examine the ways in which many of the arguments made in this context would apply in other nations.

The 13^th Amendment speaks of places (United States) and institutions (slavery), not persons and rights. What would happen if a freed slave was transported to slave-holding Cuba? Would he still be free? Does personhood, with its attendant rights, immediately replace the slave status, or does the slave status evacuate the individual's personhood such that rights must be positively conferred after slavery has ended? Scott goes on to look at the example of Reconstruction in Louisiana. This example allows us to look at the vernacular of Reconstruction, which takes us away from the numerous dichotomies that she does not find to be helpful. Louisiana also obliges us to open our view to other nations because, she says, one cannot avoid going beyond the parochial in Louisiana because of its openness to the Gulf and the Caribbean. The story of the Louisiana Constitutional Convention shows us that we should not conflate social equality with public rights. The delegates to the convention argued for a strong bill of rights. But in doing so, they reframed the debate in terms that were less inflammatory which allowed them to be built up differently. "Social rights" made people anxious, so they asserted the need for "public rights." This allowed the state to control public accommodations, through licensing, which in turn allowed the state to prohibit segregation in ways that the federal government could not. By looking at concrete examples of cases where the framing was different, we can see that people in the 1860's could imagine a different 1860's. This is not a luxury that we enjoy today exclusively because of the benefits of hindsight.

Prof. Scott's paper, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge, (available here) addresses many of these issues while asserting that there was substantial support for the side that ultimately lost Plessy v. Ferguson; ex ante, it was not a lost cause.

Full post as published by The University of Chicago Law School Faculty Blog on April 18, 2009 (boomark / email).