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25 "Only the Law Would Rule between Us": Antimiscegenation, the Moral Economy of Dependency, and the Debate over Rights after the Civil War EMILY FIELD VAN TASSEL Gender and race were closely connected in the ideology of the white 30uth; they were mutually defining. Consider legal prohibitions on interracial marriage, for example. At the core of the early debate were several closely linked questions about what kind of contract marriage was, its social and legal meaning in the shambles of the slave ,ystem, and, finally, what the limits of the right to marry, or to choose one's associates, might be in a world where the meaning and content of "rights" remained to be decided. Another question, from the perspective of whites, was how manhood would be defined md its attributes protected from dilution or negation by black men. From the perspective Jf blacks, the question of access to manhood was equally pressing from the other direction. Rights-civil, political, and social-were the locus of this battle, with contract, suffrage, md public accommodations at the center of each category. The fear of interracial marriage, md the social equality it was made to represent, was used to forestall access by blacks to a whole range of public rights and privileges, because such access, according to its opponents, would ultimately lead to interracial marriage. Antebellum defenses of slavery, in conjunction with slave management literature, laid Jut much of what Southern whites came to believe was a hierarchical structure of rights that had a concept of dependent rights and reciprocal duties. This belief was especially true in the context of the regulation of marriage and the marriage contract. Southern judges were faced with the difficulty of explaining and justifying a paternalist social and labor system through the use of legal language that Northern jurists had devised for supporting an individualistic, free labor society. In fitting their legal doctrines with Northern precedents in market settings, "slave owners found it difficult to explain paternalism in the [Northern ] language of individualism."} But slave owners had another language at their disposal, Jne that was familiar to Northerners: the language of domesticity and dependence. The Southern version of domesticity provided Southern slaveholders with a nationally understood lexicon for articulating a patriarchal vision of rights-in-servitude that they characterized and defended as "dependent rights. "2 Slaveholders' assertions that slaves possessed ~ertain moral claims against their masters, which slaveholders expressed as the rights of 70 CHI-KENT L. REV. 873 (1995). Originally published in the Chicago-Kent Law Review. Reprinted by permission. Copyrighted Material "Only the Law Would Rule between Us" 153 slaves and the duties of masters, functioned ideologically as a "moral economy" of dependency and slavery. Dependency was the defining factor in a patriarchal social system which encompassed all household relationships. According to this model of social life, the filial household was not only the basis of society , but the only place where weakness and dependence could be granted what were commonly referred to as "rights" and what was claimed to be actual, although not formal, equality in the allocation of these II rights." Through the"slavery-as-a-positive-good" argument , planters sought to justify and explain-in a very real sense, to create and recreate -their social system. Part of this endeavor was an appeal to at least two distinct categories of rights, categories that would later be broken down even more. On the one hand they claimed constitutional, political "rights as trumps" for themselves; on the other, they averred the existence of dependent, economic rights, or rights as the fulfillment of needs rather than as entitlements, for their households.3 Rights language in the hands of white slaveholders, given the context of other language about servitude and hierarchy, clearly had a meaning quite different from the dominant liberal one, which focused on individualism , autonomy, and the institutional vindication of those values for white males. But underneath that dominant meaning another strata of rights-talk existed that was applied to people, such as women, children, idiots, and lunatics, who were denied access to liberal political rights: those who in the language of the law were defined as dependent. Although needs were explicitly equated with rights in reference to dependents, when placed next to the lexicon of legal rights for which there existed legal remedies, the language of dependent rights more accurately reflected a concept of reciprocal duties. It was this language that slaveholders appropriated in their defense. And, it was this set of ideas...


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