The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

W. HAYWOOD BURNS


12
LAW AND RACE IN EARLY AMERICA

Haywood Burns, to whom this volume is dedicated, died in a car accident in South Africa in 1996. This is a slightly edited version of his essay in the second edition.--Ed.

IN early 1855 white men sitting in the Kansas legislature, duly elected by other white men, passed a law that sentenced white men convicted of rape of a white woman to up to five years in prison, while the penalty for a black man convicted of the same offense was castration, the costs of the procedure to be rendered by the desexed.

The penalty of sexual mutilation appears at many points in the annals of American jurisprudence, Kansas in 1855 being but one of the more recent examples. What is special about the sentence of castration is that where it was in force, it was almost universally reserved for African Americans (and, in some cases, Indians).

Apart from what this example reveals about the sexual psychopathology of white racism in American history, it graphically demonstrates the working of law in a racist society. The nexus between law and racism cannot be much more direct than this. Indeed, the histories of the African, Asian, Latin, and Native American people in the United States are replete with examples of the law and the legal process as the means by which the generalized racism in the society was made particular and converted into standards and policies of social control. A systematic analysis of racism and law provides keen insight into the operations of both.1

In early- seventeenth-century colonial America, blacks and whites often existed and toiled side by side in various degrees of bondage. Though there were gradations of unfreedom, there was, at first, no clearly defined status of "slave." As the century drew to a close, however,

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