SHADES OF FREEDOM
Racial Politics and Presumptions of the American Legal Process
By A. Leon Higginbotham Jr.
303 pages, Oxford University Press, $30
`SHADES OF FREEDOM" shows just how deeply the presumption of
racial inferiority is embedded into the foundation of the American
The author explains that the goal of the book is to "highlight
significant legal issues that exemplify the precept of racial
inferiority." "Shades of Freedom" is the second volume in a series
that began in 1978 with the publication of "In the Matter of
Color." The first volume chronicled the development of laws
requiring racial subordination beginning in 1619, when the first
slaves were imported to America, and continuing up to the colonial
era. "Shades of Freedom" develops the theme that was introduced in
the first book and carries it forward into the 20th century.
Readers acquainted with the history of slavery and racial
subordination will be familiar with many events that are examined.
Yet, there is much here that is new. The most significant features
include the writer's expert legal analysis and his keen insight
into the events that are described.
The author, A. Leon Higginbotham Jr., is a professor at the
Kennedy School of Government at Harvard University. His academic
appointment follows a distinguished career as a circuit judge of
the United States Court of Appeals for the Third Circuit. During
his many years on the bench, Higginbotham wrote dozens of articles
that were published in scholarly journals. He was a frequent
speaker on the lecture circuit and he served as visiting professor
at a number of distinguished institutions.
After years of delving into historical archives, the author has
found materials that reveal a new dimension of civil rights
history. For example, in Dred Scott vs. Sanford, the Supreme Court
denied a slave's petition for freedom and declared that blacks had
no rights that whites were bound to respect. This infamous
decision, which was one of the sparks that ignited the Civil War,
was not an aberration. It accurately reflected the legal status of
African-Americans under slavery.
To buttress this conclusion, Higginbotham relies on less
well-known cases such as the State of Missouri vs. Celia. This case
involved a slave who was charged with murdering her owner. The
death resulted from Celia's efforts to defend herself against
repeated sexual assaults. The court held that a slave had no right
to self-defense. At the conclusion of the trial, the judge
instructed the jury that if the owner "was in the habit of having
intercourse with the defendant" and, while attempting to do so, was
killed as a result of the slave's efforts to resist, "it was murder
in the first degree. …