16 The Rhetorical Tapestry of Race
In lieu of an abstract, here is a brief excerpt of the content:

16 The Rhetorical Tapestry of Race THOMAS ROSS For many, the rhetoric supporting the institution of slavery was constructed simply. Once one got past establishing the nonhuman nature of blacks, the rest was easy. If whites had any moral obligation in the matter, it was to use blacks to further the interests of society, a society from which the black was excluded. The horrific conditions of slave existence became the tokens of charity and benevolence to the black brute. This particular rhetoric took various forms but always avoided any real conflict in values and principles by placing blacks outside the community of humans. The rhetoric of the nineteenth-century Supreme Court Justices seems at first glance to be not at all like this form of virulent racism. Yet their rhetoric often worked in much the same manner, not explicitly denying, but obscuring the humanness of blacks as part of a rhetoric dressed up in abstractions, syllogisms, and legal vernacular. The abstract principles of individual freedom and human equality, ideas that were at the core of Revolutionary and constitutional discourse, ostensibly conflicted with the reality of slavery, and later in the century , the reality of de jure ["by law." Ed.] segregation and oppression of blacks. This conflict was the cracked surface of reality which demanded the smoothing veneer of legal rhetoric. Those judges who denied themselves the rhetorical move of explicitly placing blacks outside the human community needed more sophisticated arguments. They had to construct a more subtle rhetorical artifice, yet one that embodied its own version of racism. The best of the rhetoricians constructed exquisitely horrific rhetorical structures to justify choices that society has since discredited. Woven through the Supreme Court's opinions in Dred Scott, the Civil Rights Cases, and Plessy,l the themes of white innocence and black abstraction made the subjugation of blacks intellectually coherent. This rhetoric did not create the conditions of subjugation. The rhetoric, however, did dress up the choices which were, at the least, not choices to mitigate that subjugation. In this sense, the rhetoric was a symptom of the disease of racism that gripped the legal culture, and the larger culture , of nineteenth-century America. Dred Scott and Taney's Narrative of Subjugation Chief Justice Taney'S opinion in Dred Scott stained the Court's history and virtually ruined the historical standing of its author. Nonetheless, it is a remarkable and revealing rhetorical structure. 32 WM. & MARY L. REV. 1 (1990). Originally published in the William and Mary Law Review. Reprinted by permission . Copyrighted Material 90 Thomas Ross Taney's opinion was infamous in his time mostly for its declaration that Congress lacked the power to prohibit slavery in the Territories, thus declaring the Missouri Compromise unconstitutional . The opinion is infamous in our time for its assertion that blacks were not citizens of the United States.2 To establish the latter assertion, Taney's central rhetorical structure was the narrative of subjugation. He told the story of the subjugation of blacks through colonial times and into the constitutional period. Linking this narrative with an original intent interpretive theory, he concluded that because the drafters of the Constitution could not have imagined blacks as citizens, he was bound by their intentions on the matter. Taney's narrative is remarkable in various ways. Black abstraction was a central theme of nineteenth-century jurisprudence, the rhetoricians typically portraying the black outside of any real and rich social context. Yet Taney placed the black in a social context and purported to tell the black person's story. Taney's narrative of subjugation is a departure from black abstraction, but in form only and, in all important respects, is simply another way of arriving at the rhetorical end of black abstraction. The essential purpose of black abstraction is to deny, or obscure, the humanness of blacks. Taney got to that end by narrative, not abstraction. Taney achieved his narrative end because of the inescapable logic of certain choices he made. He chose not simply what to tell out of the rich set of possibilities; he also chose to place his narrative in a particular place and time and then, from within that place and time, he chose what pieces of that story to tell. Taney did not choose to place any portion of his narrative in Africa, where the black person was part of a real and rich culture. Taney chose not to tell the story of seventeenth-century colonial life with its relative tolerance for blacks. Moreover, he...