A Lost World: Sallie Robinson, the Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence
“It is the sound of vanishing—the music as it plays itself to silence, the train as it travels away, a voice left on magnetic tape.”
The Supreme Court tells stories about who and what we are—the sort of “knowledge about [the] past that is shared, mutually acknowledged and reinforced by a collectivity.” The Court is uniquely suited for this role: not just because of the moral authority it brings to the task of adjudication, and not just because of the rituals it uses for its decisionmaking, but also because the very act of telling and retelling in issuing decisions results in layers of these stories being deposited on and shaping constitutional doctrine. In time, and with each iteration—like sandy water flowing over sedimentary rock—these stories settle, gather together, harden, and become part of constitutional topography—sheer repetition makes them reified. These stories, a mix of fact and aspiration, a mingling of doctrine and metaphors, rubbed smooth of contradictions, translated for public consumption, even when hotly contested in the caverns of academia, keep us bound to a “conscious community of memory,”—a pact about the larger lessons to be derived from our past. There is a federalism story about how the Founders’ experience with a distant, indifferent king led them to set up a government with defined limited federal power; a free-speech story about how our collective ability to think and speak freely contributes to an open marketplace of ideas; and a right-to-bear-arms story about how the Second Amendment serves as a bulwark against government tyranny. There is no equivalent story—at least none that the Court itself has had a role in telling—about how slavery and white supremacy shaped the American identity.
To the contrary, the singular effect—if not purpose—of the Supreme Court’s jurisprudence on the experience, status, and place of Black people in America has been to erase slavery from the constitutional stories the Court tells about American democracy. The Court has managed this feat so successfully that the main role slavery plays in the collective constitutional imagination today is as remembrance of how its abolition affirmed the genius of the Framers’ vision and redeemed the righteous-ness of the country’s Founding. This act of willful forgetting began in earnest during Reconstruction, when, even as Black people roamed the countryside and searched newspaper ads for mothers, fathers, sons, and daughters sold away to distant plantations before the war, the Court explained that the Thirteenth Amendment abolished nothing more than involuntary servitude, that neither the Thirteenth nor the Fourteenth Amendment imposed an obligation upon the federal government to protect Black people from white violence, and that Black people’s invocation of the Fourteenth Amendment’s equality principle was akin to their wanting to become a special favorite of the law.
This Article is an attempt at digging up one story of slavery and trying to input it into the collective constitutional imagination. The Article uses one decision to tell the story—the Civil Rights Cases. It also uses one person—a woman named Sallie Robinson. Apart from those she loved and who loved her in return, Sallie lived out her days in relative obscurity, but that life—at least the pieces and fragments of it we can gather— is as legitimate a part of our constitutional myth making as the lives of the men on the Court whose writings hardly ever acknowledged that people like Sallie existed and mattered.
Continue reading A Lost World.