Blackness as Property: Sex, Race, Status, and Wealth

Abstract

Using Critical Race Theory and legal history, this Article searches the roots of Justice Sandra Day O’Connor’s rationale in Grutter v. Bollinger. It critically views Grutter as an “anti-affirmative” action case, contrary to popular belief, and uses Professor’s Derrick Bell’s “interest-convergence” principle to explain the law’s regulation of miscegenation and interracial love and marriage, and to explore why the law gave certain black women limited property ownership rights in the antebellum South.

African Americans have a peculiar relationship with the legal history of America’s private property ownership system. They descend from America’s enslavement of their ancestors who are legally classified as “private property.” For enslaved blacks, being “property” meant you were owned and controlled and could be bought, sold, and abused by your owner. As an enslaved black, you were also generally denied property ownership rights. Your freedom, your labor, and even your body were attributes your masters legally controlled. For a black woman, enslavement meant white men owned and controlled your sexuality, often using you to bear their children. White masters also owned the racially mixed children they fathered with their enslaved black women.

This Article analyzes, from the perspective of the black woman’s property rights, how the American legal system regulated miscegenation. It describes and analyzes the black woman’s property rights against the white man’s American Dream, the “property-enslavement-sexual” paradigm: cheap land, cheap labor, and cheap sex. It describes and analyzes the law’s regulation of white men who attempted to bestow upon their black women and children inter vivos and causa mortis legacies. It explores how antebellum Southern legislatures and courts managed the property rights of black women and illustrates the relationship between sex, race, status, and wealth acquisition. This Article also analyzes the little known anomaly of the law’s treatment of “free” black women, who successfully negotiated out from enslavement, and who, themselves, owned plantations, large homes, and enslaved blacks: the “black mistress.”

This Article concludes that the roots of Justice O’Connor’s rationale in Grutter are in the nineteenth-century antebellum South’s legal treatment of blacks as white property. Justice O’Connor’s rationale in Grutter treats aspiring African-American students applying to America’s elite public universities and professional schools as a “diversity commodity”: there merely to serve the white majority’s needs. There is a hidden dynamic in the Grutter rationale: white society’s apparently continuing desire to segregate blacks and whites where integration would lead to a transfer of wealth to blacks. In summary, both Grutter and its nineteenth-century roots regulate the sexual-racial economies of property, treat blackness as white property, reflect Professor Bell’s “interest-convergence” principle, and serve to reinforce a greater social and economic order: the continued domination, supremacy, and privilege of wealthy white men.

Keywords: race theory, Justice Sandra Day O'Connor, Grutter v. Bollinger, affirmative action, Professor Derrick Bell, "interest-convergence", miscegenation, antebellum South, African Americans, slavery, blackness as property, enslavement, enslaved blacks, enslaved black women