Ethical Co-optation:
Facilitating Social Justice
& Progressive Politics
Through and With
Mrs. Dred Scott
Yuan Stevens, Autumn 2016The Lives of Dred and Harriet Scott, Mississippi Valley Traveler, 2020
In his book Dream: Re-imagining Progressive Politics in an Age of Fantasy, Stephen Duncombe urges for the uptake of a new methodology for those with progressive politics.[1] His prescient call was pertinent when the book was published in 2007. It is perhaps even more necessary now in light of Donald Trump’s role as president-elect of the United States. Duncombe implores proponents of progressive movements to adopt the use of imagination, dreams, images, and even fantasy — techniques that underlie mass-appeal marketing — all in the name of ethical spectacles, which bring those who maintain the status quo into the progressive fold. He concedes that fantasy and spectacle have, indeed, “been the property of Fascism, totalitarian Communism, and more recently, the unspeakable horror known as Entertainment Tonight.”[2] Duncombe writes that the “entertainment state … should be ruthlessly criticized, but the techniques used to create and maintain it need to be enthusiastically explored and exploited for their progressive potential.”[3]
In this essay, I assert that the methodology of critically co-opting approaches and habits — whether for progressive resistance or maintaining the status quo — offers a productive framework as we examine the actions of those who have fought for emancipation in slave societies and Lea VanderVelde’s framing of Harriet Scott’s life in her book Mrs. Dred Scott: A Life on Slavery’s Frontier.[4] Indeed, understanding VanderVelde’s representation of the Scott family’s fight for emancipation through this compelling framework offers us a new way of knowing the law. Perhaps more importantly, we as jurists can learn much from this framework, which urges us to take up ethical appropriation as a means of facilitating political and legal realities in the name of social justice.
One of the most striking examples in VanderVelde’s book that reveals the appropriation of a method or tradition — particularly as an act of resistance — involves her description of slave last names and their origins. VanderVelde describes to her readers that laundress Polly Wash and her daughter, Lucy, had different last names. However, unlike Harriet, neither Polly nor Lucy had the last name of Polly’s husband — but instead had assumed last names that reflected the households of their origin.[5] VanderVelde explains that white Americans did not know slaves to have last names, but instead called them by their owners’ names — such as “Berry’s Lucy” and “Wash’s Polly.”[6]
What VanderVelde recounted next ultimately made complete sense to me: enslaved African Americans instead inverted the names by which white people referred to them. “Asserting a last name signified independence,” VanderVelde explains, “even though that name also belonged to a master.”[7] I was initially surprised; it is difficult to imagine how claiming the familial name of someone who owns you could, indeed, signify independence. But after further contemplation of VanderVelde’s assertion, I have determined that her explanation is a cogent one.
What were the alternatives for those who were enslaved? Beyond the examples above, Harriet was referred to, for example, as “Harriet, of Color” by the court system when she sued for her freedom.[8] The self-proclaimed, inverted names with which enslaved African Americans referred to themselves were “names [that] expressed their personal family origins better than any other names at their disposal.”[9] And as Duncombe aptly describes throughout his entire book, adopting elements of dominant traditions is often a necessary and productive co-optation of what is otherwise used only for maintaining the status quo. Rather than remaining without a last name or affirming the notion that they were property, enslaved African Americans instead chose an option that still had the pragmatic function of revealing their family origins, but ultimately had the vital effect of affirming their individuality, personhood, and humanity.
Another incredibly compelling example of co-optation as a means of progressive resistance can be seen in the decision by enslaved African Americans to even sue for their freedom in the first place. This is true particularly given the nature of the claims that some slaves had to make, and that judges at times made against them. Consider the fact that Judge Taney’s decision to dismiss the Scotts’ claim depended on his agreement with Sanford’s lawyer that Dred Scott was neither an American citizen nor protected under the federal court’s jurisdiction.[10] The issue of whether free Black or “mulatto” persons were American citizens was also decided upon by Judge Krum just before he presided over the Scott’s case at the St. Louis circuit court.[11] With all of this in mind, the decision by those who were enslaved — including the Scotts — to legally claim their freedom can therefore be understood, at times, as an attempt to adopt their enslaving country’s citizenship. This act, then, resulted in an enslaved person perhaps sadly eschewing any previous “citizenship” or legal identity with respect to their origins in Africa, but nonetheless had the net effect of resisting the global institution of slavery.
We can also ascertain that elements of VanderVelde’s book itself exemplified the uptake of certain traditions as a means of critically reassessing the Scott decision. For example, I remember reading the title of VanderVelde’s book and wondering to myself for weeks: why does VanderVelde book’s title emphasize the identity of Dred Scott — the main protagonist’s husband — rather than Harriet herself? I do not recall coming across VanderVelde’s exact explanation for this in her book nor in her conversation with our class, yet it appears to me that it may have been an editorial decision with a subversive purpose.
By ensuring that Dred’s name was in the title of her book, VanderVelde’s publisher likely understood that his name was familiar and would sell. We can therefore observe VanderVelde as having ethically capitalized on the celebrity associated with Dred Scott. Including his name in the book’s title thus acts as a gateway or impetus for someone to read VanderVelde’s book who, without mention of his name, would maybe not do so — but would nonetheless benefit from the privilege of a deeper, nuanced, and reconfigured telling of the crucial story behind a landmark US constitutional law decision.
One of the primary reasons for the significance of VanderVelde’s book in terms of content concerns her inclusion of Native Americans in her framing of the Scott family narrative. VanderVelde crucially connects the plight of enslaved African Americans to that of the Native American people. In doing so, she challenges the assumption that the latter’s story is not one worth considering in analysis of both the Scott decision and the factual matrix that gave rise to it. We can see parallels in VanderVelde’s writing and that of Bethany Berger, whose work has challenged the “flawed representation” of another landmark US property law decision, Pierson v Post.[12]
Berger reminds us that the Pierson decision was about much more than who had property rights. Instead, we can readily understand that decision as one premised upon a liberal, Lockean theory of property law, which assumes that newfound land, everything on it and everything brought onto it was simply waiting to be claimed.[13] And similarly to Berger’s assertion that the Pierson case reveals the shortcomings of this view of property, VanderVelde’s book also reveals the limitations of understanding the Scott decision solely with respect to property rights and enslaved African Americans.[14] Instead, claims involving property rights (and in this case, freedom from being property) are “often as much claims of [entire] communities as they are of individuals” — that is, “contests over the right to define a communal way of life” — rather than being about absolute control over things or humans.[15]
VanderVelde contextualizes the Scott family story through detailed explanations of Native Americans and their relationship to those around them. She also clarifies that “National Indian policy” was, indeed, at stake in the Scott decision.[16] By doing so, we can see that VanderVelde has co-opted the habits of socio-legal history. Hers is one that at once frames the Scott family story as an enslaved family seeking emancipation, yet also does the critical task of intersecting their story with the narratives of the original inhabitants of what we now call North America.
Finally, it is imperative that we as jurists respond to the uptake of habits and methodologies by those who maintain the status quo. VanderVelde writes that “Taney found that he could use the Dred Scott case to vindicate his extreme views at length and graft them authoritatively onto American constitutional laws.”[17] Because such co-optation of the legal system is commonplace and inevitable, we, as jurists ought to consider ethically taking up a similar approach in order to facilitate progressive politics, resistance, or dissent to these power structures. That is why the existence of our course, Slavery and the Law, how it is taught and what we do with this incredible pedagogical experience is pivotal. I see the offering of this course at McGill’s Faculty of Law as but one example of adopting a structure — in this case, legal pedagogy — as a means of resistance in the face of a legal system and even society. Our society has failed to see Canada’s complicity in the global institution of slavery. Legal actors can equally fail to see the roles of liberal legalism and capitalism in property law, particularly in their subjugation of Aboriginal North Americans and descendants from Africa.
As students who have the privilege of taking this course, I urge us to learn from the framework with which we can make sense of VanderVelde’s writing. For it is this ethical co-optation of methodologies, approaches, and habits that proponents of social justice may need now more than ever and that we as compassionate and responsive jurists can make use of as we facilitate political and legal realities all in the name of progressive politics.
→ References
[1] Stephen Duncombe, Dream: Re-imagining Progressive Politics in an Age of Fantasy (New York: The New York Press, 2007).
[2] Ibid at 3
[3] Ibid at 15
[4] Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s Frontier (New York: Oxford University Press, 2009), citing Dred Scott v. Sandford, 60 U.S. 393 (1857).
[5] Ibid at 197.
[6] Ibid.
[7] Ibid.
[8] Ibid at 198.
[9] Ibid at 197.
[10] Ibid at 308. And as we know, Judge Taney also decided that Scott was also not a citizen of Missouri.
[11] Ibid at 246 and 282. Judge Krum concluded that free Black and “mulatto” persons were not US citizens.
[12] Bethany Berger, “It's Not about the Fox: The Untold History of Pierson v. Post” (2005) 55:6 Duke Law Journal 1090 at 1142, citing Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264, (N.Y. 1805).
[13] Ibid at 1093.
[14] Ibid at 1094.
[15] Ibid at 1143.
[16] VanderVelde, supra note 4 at 310.
[17] Ibid at 309.