When is the Time of Slavery? The History and Politics of Slavery in Contemporary Legal Argument

Abstract

When is the time of slavery? Is slavery a part of our nation's experience best buried in the deep past, or are its echoes still being felt today? Has our nation's trajectory been one of continuous progress from slavery to freedom, or did change happen fitfully and incompletely? And was slavery an institution defined by race, or was race only incidental to its origins and operation? Contemporary debates about racial justice, and in particular about redress for racial injustice, turn not only on moral and practical concerns, but on the answers to these questions. The jurisprudence of affirmative action and reparations draws on competing histories of slavery and its aftermath in the United States. This essay will explore the way histories of slavery have been used in judicial opinions, legal scholarship and popular political tracts arguing over racial justice, affirmative action, and reparations for African Americans. It lays out a taxonomy of conservative and liberal histories of slavery, and suggests the implications and limitations of these historical narratives.