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Introduction. “A Man from Another Country”: Citizenship and the Bonds of Labor

What will the people of America a hundred years hence care about the intentions of the scriveners who wrote the Constitution?

—Frederick Douglass, “The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?”

In 1849, as the Union crisis escalated over yet another likely compromise with American slavery, Frederick Douglass startled the antislavery movement with an unusually equivocal statement of his view of the Constitution as a slavery-sanctioning text: “On a close examination of the Constitution, I am satisfied that if ‘strictly construed according to its reading’ it is not a pro-slavery instrument.…I now hold that the original intent and meaning of the Constitution (the one given to it by the men who framed it, those who adopted it, and the one given to it by the Supreme Court of the United States) makes it a proslavery instrument.”¹ Douglass’s concluding claim that “the original intent and meaning of the Constitution” made it “a pro-slavery instrument” was uncontroversial, the reiteration of an interpretation widely accepted by abolitionists and slaveholders alike in antebellum America. Indeed, this view of the original Constitution as a slavery-sanctioning document remains accepted by most modern historians. What startled so many in 1849 was Douglass’s first claim, one that seemed to contradict this interpretation of the Constitution. How could one hold the view that the “original intent and meaning” of the Constitution was to sanction and safeguard slavery, while simultaneously arguing that “if strictly construed,” the Constitution was not a proslavery document? How could the meaning of this founding legal document be construed against that “intended” meaning “given to it by the men who framed it”? These were the central hermeneutic questions of the debate over what would come to be called the 1850 Compromise and its federal Fugitive Slave Act.

In his editorial entitled “The Address of Southern Delegates in Congress to their Constituents; or, the Address of John C. Calhoun and Forty Other Thieves,” appearing in the same 9 February issue of the North Star, Douglass elaborated upon this distinction between the conception of a law’s “original intent and meaning” based on the historical context of its framing and its legislative intent, based on the “strict construction” of its language. Douglass observed: “It will be seen that [Calhoun’s] “Address” assumes a clear recognition of slavery in the United States Constitution, by the clause relating to taxation and representation—that relating to the return of fugitive slaves, and that respecting the importation of slaves.”² The problem for these political representatives of the slaveholders, Douglass argued—and here we have the first articulation of the emerging shift in Douglass’s interpretation of the Constitution—is that the so-called “slave clauses” contained no such clear recognition of slavery: “We deem it unfortunate for these honourable menstealers, that in no instances have they been able to find a word in either of these clauses which bears the definition of slaves or slavery. The word slave in all these references is the word of this conclave, and not the Constitution.”³ According to Douglass, slaveholders were confounded in their attempts to read the Constitution as a slavery-sanctioning document because, just as the word is absent from their own “Address,” it is absent from that founding law whose legitimating authority they invoke. If slavery’s political representatives avoided using the “gross form of the word slavery” to name that system they defended, the Constitution’s framers also avoided this word, likewise referring to slavery and its subjects only through euphemism and indirection. As Douglass argued further: “The fact is, the framers of that cunning instrument were ashamed of the name, while they had not the honesty to renounce the thing, slavery; and it is the same sense of shame today which leads the friends and defenders of this inhuman system to use the term ‘peculiar institution,’ ‘the relation existing between the European and African races’ and the like.”⁴ In Douglass’s reading, this shared “way of sliding over of the hateful word slavery” links the rhetorical practice of the slavery-defending southern delegates to the writing practice of the slavery-sanctioning constitutional framers.⁵

Douglass’s reading practice thus extends beyond the “ambiguous terms” of Calhoun’s “Address” to the “ambiguously worded” Constitution itself: “The language in each of the provisions to which the address refers, though doubtless intended to bolster up slavery and respect slave property, has been so ambiguously worded as to bear a very different construction; and taken in connection with the preamble of that instrument, the very opposite of the construction given it by this wily band of slaveholders.”⁶ Douglass is not arguing here that the framers’ “original intent” was actually an antislavery Constitution. Instead, Douglass concedes throughout this 1849 editorial that the slave clauses were “doubtless intended to bolster up slavery and respect slave property,” but argues that the ambiguous terms used in the final text of the Constitution leave its meaning open to a much more radical “construction.”

Douglass elaborates upon this significant disjunction between the letter of the law and the “original intent” of the law by proposing a hypothetical scene of reading: “Suppose a man from another country should read that clause of the American Constitution which Calhoun alleges refers to fugitive slaves, with no other knowledge of the character of American institutions than what he derived from the reading of that instrument, will anyone pretend that the clause in question would be thought to apply to slaves? We think not.”⁷ On the one hand, Douglass extends his local critique of the proslavery interpretation of the Constitution to situate the founding document within an international context. Such contextualization was a popular rhetorical gesture; Douglass and other antislavery writers often alluded to the idea that slavery undermined the United States’ reputation as an enlightened republic.⁸ On the other hand, Douglass’s hypothetical scene of reading is a provocatively decontextualized one: this “man from another country,” unfamiliar with the peculiar context of the Constitution’s inscription and the nation’s history, would necessarily be a “strict constructionist.” This “man from another country” could not imagine that the “fugitive slave clause” and its terms of labor subjection were intended to apply to slaves, “nor dream of such an outrage, such a savage monstrosity, on reading any other part of the Constitution.”⁹ In this hypothetical scene of reading, the true “spirit of the law” is to be located only through a reading of the letter of the law, regardless of its “original intent.”

What is of further significance to our understanding of the constitutional debates of the Union crisis is that this “man from another country” interprets the Constitution the same way Douglass will throughout the next decade, after publishing his “Change of Opinion” in 1851. Douglass’s “man from another country” is the figure for the type of reading practice modeled by Douglass himself in this critique. As a figure of reading, the trope allows Douglass to brush history against the grain, interpret the famous “slave clauses” otherwise, and thus conceive of an alternative spirit of the law. As Douglass concludes: “Blot slavery from existence, and the whole framework of the Constitution might remain unchanged.”¹⁰ In 1849, as the debates over yet another national compromise regarding slavery raged; and as the antislavery movement splintered into different factions, this experiment in reading against “original intent” signaled a radical transformation in Douglass’s political perspective.

For cultural history, this “man from another country” provides a view into the ways in which antislavery politics led to transformations in “literary” and legal hermeneutics, as well as the “culture of Constitutionalism.”¹¹ Reading the text of the Constitution against the grain of “original intent,” Douglass’s strategy is to focus on the elisions and ambiguities of reference within the very letter of the law. Douglass first zeroes in on what he calls the “ambiguous…inappropriate…and equivocal language” of the fugitive slave clause:

If the provision in question refers to slaves escaping from slave States into free States, and was intended to define the right of masters to apprehend their slaves, and the duty of free States to deliver them up, the language used, is most ambiguous and inappropriate. The words “held to service and labor,” for instance, does not necessarily imply the relation of “master and slave,” and is rather a description of minors and apprentices, than of slaves.¹²

Douglass’s use of the infamous fugitive slave clause as exemplary of the ambiguities and equivocations permeating the language of the Constitution is itself a significant decision, raising important questions regarding the conceptualizations of freedom, unfreedom, and citizenship in a slaveholding nation, which I will address in the second part of this introduction, and at greater length in chapter 3. Here I want to note that the point of Douglass’s lesson in constitutional interpretation is not merely that the founding document does not contain the words “slave” or “slavery,” a point made by many critics before and since Douglass’s reading. As Eric Foner has described, it was this absence of direct references to slavery, color, or race in the text that reformers such as Salmon P. Chase, the architect of the moderate political abolitionist strategy, used to argue that the framers’ shared “original intent” was the eventual disappearance of slavery from the Union, its withering away as a political-economic institution.¹³ The more significant point is that Douglass goes beyond pointing to the absence of the words “slave” and “slavery” to posit two interdependent claims about the words that do appear in the letter of the law.

First, Douglass points out that there exists no necessary relation between the words used in the fugitive rendition clause (“held to service or labor”) and “the thing” those words are “alleged” by Calhoun’s Address to “name” (that is, “the relation of master and slave”). Further, Douglass posits that these very same words of the clause refer instead to a different type of labor bondage and other types of laboring subjects: indentured servitude and apprenticeship (and their subjects, “apprentices and minors”). Douglass’s second, positive claim regarding the true referent of the phrase “held to service or labor” in the frequently cited fugitive rendition clause was in 1849 a counterintuitive one to say the least, running expressly counter to what was widely understood to be (and what Douglass concedes throughout this editorial to be) the “original intent” of the clause.

By 1849, indentured servitude had long declined as a dominant form of labor subjection, replaced by chattel slavery and wage labor, and few readers in 1849 could imagine the term “held to service or labor” in the fugitive rendition clause to be a description of such servitude. Throughout his ruling in the famous 1842 case of Prigg v. Pennsylvania, for example, Supreme Court Justice Joseph Story, maintaining the importance of the “original intent” of the “fugitive slave clause” and taking for granted its historical context, interpreted the term “person held to service or labor” to refer solely to the slave: “Historically, it is well known, that the object of this clause was to secure to the citizens of the slave-holding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.”¹⁴ John Calhoun’s “Southern Address,” to which Douglass’s 1849 editorial in the North Star was a response, began its argument for the rights of slaveholders by citing Justice Story’s majority Opinion in Prigg v. Pennsylvania and its originalist view of slavery as the Constitution’s historical “compromise.” Douglass’s interpretation is thus also counterintuitive because by 1849, indentured servants and apprentices have been erased from the horizon of signification as even implied referents of the phrase “person held to service or labor,” and the “ambiguous” terms of this fugitive rendition clause immediately conjure only the figure of the runaway slave.

Ambiguous Identities and the Forms of Law

Douglass’s counterintuitive construction of the fugitive labor clause provides insight into a broader historical and literary-critical argument, whose implications are developed throughout Bonds of Citizenship: the dominant historical conceptualizations of slavery and slave personhood (in this case, the critical commonplace that the fugitive labor rendition clause was “originally intended” to refer exclusively to fugitive slaves) are contingent, partial truths, whose very intelligibility is circumscribed by what Douglass calls “the forms of law”—and what Karl Marx, writing during the labor struggles of this period, would call their forms of appearance in the law.¹⁵

Marx uses “form of appearance” (Erscheinungsform, a term given special emphasis) throughout Capital, from his opening analyses of exchange-value (Capital 1: 127), the commodity-form (Capital 1: 165), and the money-form (Capital 1: 236), to his study of variable capital and simple reproduction (Capital 1: 714). For our present discussion of that repressed referent of the Constitution’s fugitive labor rendition clause made visible by Douglass’s “man from another country,” Marx’s dissection of the mystifications of the wage-form is most pertinent:

The wage-form…extinguishes every trace of the division of the working day into necessary labour and surplus labour, into paid labour and unpaid labour. All labour appears as paid labour.…In slave labour, even the part of the working day in which the slave is only replacing the value of his own means of subsistence, in which he therefore actually works for himself alone, appears as labour for his master. All the labour appears as unpaid labour. In wage-labour, on the contrary, even surplus labour, or unpaid labour, appears as paid. In the one case, the property-relation conceals the slave’s labour for himself; in the other case the money-relation conceals the uncompensated labour of the wage-labourer.…All the notions of justice held by both the worker and the capitalist, all the mystifications of the capitalist mode of production, all capitalism’s illusions about freedom, all the apologetic tricks of vulgar economics, have as their basis [this] form of appearance…which makes the actual relation invisible, and indeed presents to the eye the precise opposite of that relation. (Capital 1: 680)

As with the hermeneutic of Douglass’s “man from another country,” this comparative analysis of slave labor and wage labor was tied directly to Marx’s dialectical critique of “the forms of law” as the codification of economic relations. Against the bourgeois economists’ “crude obsession with the material side [Stoff],” which thus led them to “ignore all differences of form” (682), and made them “unable to separate the form of appearance from the thing which appears within that form” (714), historical materialism distinguishes between those forms of appearance “reproduced directly and spontaneously, as current and usual modes of thought”—that is, through ideology in the narrow sense—and “the essential relation manifested in” (682) these forms.

As Louis Althusser and Etienne Balibar emphasize in Reading Capital, Marx’s method is to “distinguish between the relations of production themselves…and their ‘legal expression,’ which does not belong to the structure of production considered in its relative autonomy.”¹⁶ In analyzing the relations of production specific to the capitalist mode of production, therefore, “it is a question of distinguishing between the connection that we have called ‘property’ and the law of property.”¹⁷ This method “consists of looking for the relations of production behind the legal forms, or better: behind the secondary unity of production and law, which has to be disentangled. Only by this method will it eventually be possible to trace the theoretical boundary while still taking into account the ambivalent function that Marx assigns to legal forms: they are necessary yet ‘irrational,’ expressing and codifying the ‘economic’ reality which each mode of production defines in its own way, and yet simultaneously masking it.”¹⁸

By focusing on the ambivalent function of what he called “the forms of law,” Douglass’s reading of the “fugitive slave clause” recovers its other referents, apprenticeship and indentured servitude, forms of bound labor sharing elements of both enslaved and “free” waged labor. Following Douglass and Marx in their shared focus on legal codifications of property and of labor as ambiguous forms of appearance, Bonds of Citizenship focuses on the laboring subject’s multiple and historically varying forms of appearance, to explore the legal and cultural implications of that founding constitutional moment wherein the bondsman—the “person held to service or labor”—is inscribed as that name for the twinned labor subjections of slavery and indentured servitude. Pursuing Douglass’s insight, this study reads the figure of the bondsman as a trace of both the slave and the indentured servant, which together serve as the absent presence of the Constitution.¹⁹ That slavery was the absent presence of the Constitution was clear to Douglass and his contemporaries: the slave was not named in any of the so-called “slave clauses,” and instead referenced only indirectly through the “equivocal” and “ambiguous” term “person held to service or labour.” Yet as we have seen, Douglass pushed further on this point regarding the slave’s ambiguous legal form of appearance, to apprehend that very form of appearance as a trace which codifies and masks another form of labor bondage: indentured servitude. This servitude is the other half of that labor bondage which is the absent presence of the “slave clauses”; and the intertwined history of slavery and servitude is marked in the Constitution by the figure of the bondsman as legal form of appearance.

The reading of Douglass’s “man from another country” reveals how this form of appearance works in the Constitution to make invisible those other laboring subjects, indentured servants. In indentured servitude, individuals “voluntarily” contracted to serve for a term in exchange for compensation, such as transportation expenses and freedom dues. What type of labor exploitation did this practice constitute? As Barbara Fields’s well-known argument indicates, the modern answer seems to be that it constitutes a form of slavery.²⁰ As Robert Steinfeld reminds us, however, this answer “depends upon a particular scheme of understandings that ignores the characteristics indentured servitude shares with free labor—contractual freedom, limited term, compensation—and that classifies it with slavery because of the legal compulsion both involve.”²¹

At the time of the constitutional founding, indentured labor was a widespread form of labor bondage; and the recapture of escaped indentured servants was in fact one of the “originally intended” meanings of the fugitive labor rendition clause. William Wiecek notes that the interstate rendition of fugitive slaves among the American states “originated in intercolonial efforts to prohibit the absconding of white servants, and never lost its association with the problem of controlling elopement by those in limited-term servitude.”²² As Douglass and his contemporaries learned from reading James Madison’s record of The Debates in the Federal Convention of 1787 (first published in 1840), the original draft of this clause referred explicitly to both “fugitive slaves and servants,” and provided for the return of both these types of laborers. Madison noted that this fugitive-from-labor clause was introduced initially as a supplement to the clause requiring the rendition of fugitive criminals to the “State having jurisdiction over the Crime”: “Mr. Butler and Mr. Pinckney moved to ‘require fugitive slaves and servants to be delivered up like criminals.’”²³ After several objections to this proposal—objections to its explicit inscription of slavery into the Constitution; and to its logical implication that nonslaveholding states would be required to pay for the labor practices of the slaveholding states—the proposition was withdrawn, “in order that some particular provision might be made apart from this article.” What modern historians now call the “fugitive slave clause” was reintroduced the next day as a separate provision. Both “slave” and “servant” disappeared in the new formulation of the provision, replaced by the terms “person held to service or labour.”²⁴ These twinned subjects of labor bondage are thus inscribed into the referential structure of the Constitution only indirectly, as the “person held to service or labor,” their names erased from the letter of the law. Slave and servant are collapsed into the singular figure of the bondsman, “the person held to service or labor.” The bondsman’s legal form of appearance conceals the history of these other subjects of labor bondage implicated in the Constitution’s fugitive rendition clause. As I elaborate in the next two sections of this introduction, a hermeneutic attuned to this absent presence and the ambiguities of law’s forms can illuminate as well the other key term of that founding moment and of the present study, the citizen.

The Bondsman as Vanishing Mediator

Etienne Balibar has argued that the national revolutions of the late eighteenth century constituted a “break” in “the history of ‘the problem of Man,’ as ‘citizen’ and as subject,’” the crossing of an “irreversible threshold.” This historical threshold was “crossed when secular and would-be democratic societies were constituted…namely during the ‘revolutions’ at the end of the eighteenth and the beginning of the nineteenth centuries in North America, France, Latin America, Greece, and elsewhere.”²⁵In contrast to the medieval figure of subjection to (religious and political) sovereign authority, with this second historical break man now “ceases to be a subjectus, a subject, and therefore his relationship to the Law (and the idea of law) is radically inverted: he is no longer the man called before the Law, or to whom an inner voice dictates the Law…he is rather the man who, at least virtually, ‘makes the law,’ i.e. constitutes it, or declares it to be valid.”²⁶ This modern citizen-subject is now responsible or accountable because he is a legislator: “These men…were able to begin thinking of themselves as free subjects, and thus to identify liberty and subjectivity, because they had abolished the principle of their subjection…while conquering and constituting their political citizenship.”²⁷ If the revolutions of 1776 and 1789 reconstituted citizenship such that modern “citizenship is not one among other attributes of subjectivity, on the contrary: it is subjectivity, that form of subjectivity that would no longer be identical with subjection for anyone,” how do we understand the histories of slavery and servitude that inhered in these moments?²⁸ Supplementing Balibar’s argument with the perspective of Douglass’s “man from another country,” we can see that during the historical moment of the constitutional founding, the bondsman mediates the two opposing poles of subjection and subjectivity codified in the letter of the law: that is, the complete subjection of chattel slavery on the one side and the “freedom” of self-constituted political subjectivity on the other.

As I argued in the previous section, the pairing of slavery and indentured servitude in the fugitive labor rendition clause also underscores their shared condition of legal compulsion. Such a provision for legal compulsion—this was a clause providing for the recapture and delivering up of fugitive labor, after all—would be mobilized later to consolidate the modern definition of “free labor” as that performed in “the absence of legal compulsion.”²⁹ As the figure for criminal fugitive labor—criminal for having fled with the embodied labor purchased by another—whose recapture was a condition of the Constitution’s ratification and thus of the founding of the nation, this bondsman (the “person held to service or labor”) thus also serves as the vanishing mediator, between a pre-Revolutionary form of subjection to sovereignty and the imagined self-constituted subjectivity of U.S. citizenship.³⁰

In Fredric Jameson’s formulation, a vanishing mediator is “a catalytic agent that permits an exchange of [historical] energies between two otherwise mutually exclusive terms”; it is a dialectical figure whose form mediates the transition between two opposed concepts and thereafter disappears.³¹ Jameson develops the concept of the vanishing mediator in his narrative analysis of Weber’s famous account of Protestantism’s role in the transition from the feudal mode of production to the capitalist mode of production; he proposes also that as a dialectical figure of historical transition, the vanishing mediator is likewise perceptible in Marx’s analyses of political events (for example, his analyses of the revolutions of 1789 and 1848). Its origins in narrative analysis remind us of the dual function of the vanishing mediator, which is to “combine the twin requirements of narrative irreversibility, and of figuration into agents or characters.”³² In Weber’s story of secularization, the movement called “Protestantism” is a historical character, a narrative agent that serves as a “mediation between the traditional medieval world from which it emerged and the modern secularized one that it in its turn prepared.”³³ And it is a vanishing mediator in the sense that in “the final transition to the situation of modern capitalism…what happens here is essentially that once Protestantism has accomplished the task of allowing a rationalization of innerworldly life to take place, it has no further reasons for being and disappears from the historical scene.”³⁴

As a narrative figure, the vanishing mediator need not be a historical movement, such as Protestantism; it can also be a singular character type, such as the figure of the prophet in Weber’s account of secularization and charismatic power. I have argued thus far that Douglass’s reading of the fugitive labor rendition clause, from the point of view of the “man from another country,” recognizes the labor bondage of the slave and the servant as the absent presence of the Constitution. Bonds of Citizenship proposes that this reading thus also makes visible the ways in which the category of the bondsman—the figure for both enslaved and indentured labor—functions as a vanishing mediator, making possible that category of personhood equated with full legal freedom in the new republic, the citizen.

Douglass does not make this point, but surely his “man from another country” would. This reader would notice that the fugitive labor rendition clause is the supplementary clause to the only section of the original Constitution that refers to the “privileges and immunities of citizens” of the United States. The first clause of Article IV, Section 2 reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Nowhere in the original Constitution is the term “citizen” defined.³⁵National citizenship was clearly defined (over and against state citizenship) only after the Civil War, with the passage of the Fourteenth Amendment.³⁶ Yet of all the provisions of the Constitution, Article IV, Section 2 comes closest to delimiting, if not explicitly defining, the term “citizens.”

I say delimiting because even in its narrowest interpretation, the clause recognizes the “citizen” as a figure always-already attached to certain “Privileges and Immunities,” and likewise recognizes the citizens of each state as “entitled” to the privileges and immunities of citizens of all other states.³⁷ By entitling citizens of each state to privileges and immunities of citizens of all other states, this clause inscribes the citizen as a figure of unrestricted mobility, free to roam throughout the states of the new nation without legal disability. In explicit contrast to this new citizen’s freedom of mobility, the second clause of Article IV, Section 2 states: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”³⁸ This fugitive criminal rendition clause is the necessary supplement to the extraterritoriality of the “privileges and immunities” clause. Just as a unified national space is imagined through the extraterritoriality of the state citizen’s “privileges and immunities,” the different legal spaces of the individual states are united through this supplementary provision for the capture and rendition of the fugitive criminal. The movement of this fugitive criminal maps the intersections between the local police powers of the states and the national reach of the federal Constitution.

The fugitive labor rendition clause was proposed as the political-economic supplement to this fugitive criminal rendition clause, which, as we have seen, served to delimit the freedom of the citizen. Indeed, the fugitive labor rendition clause likens escape from labor bondage to a flight “from Justice”: in escaping from their economic bonds, fugitive slaves and servants fled the bonds of law and were, in the words of the authors of the clause, “to be delivered up like criminals.”³⁹ Similarly, what is commonly known as the first federal “fugitive slave” act (of 1793), enacted to give force to the Constitution’s fugitive labor rendition clause, was actually entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters,” and likewise linked to these different types of fugitives.⁴⁰ As I discuss at greater length in the first three chapters of this study, it is through these supplementary figures—the slave and the servant—that this founding law establishes one of the central categories through which “freedom” would be imagined—and racialized—throughout nineteenth-century American law and literature: “freedom” as free mobility.⁴¹

Nor would the “man from another country” ignore the bondsman’s ambiguous forms of appearance in the Constitution’s other “slave clauses,” for there also the figure of the bondsman mediates the legal inscription of the passage from “subject” to “citizen.” Article I, Section 2—the Constitution’s all-important provision for apportionment of representation and taxation—scripts its infamous “three-fifths clause” thus: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.”⁴² In chapter 1, I elaborate the significance of this negotiation of the “principle of representation” to late-eighteenth and nineteenth-century U.S. racial formations, and to the construction of blackness as “the badge of servitude.” For now, I continue in the tracks of the bondsman as vanishing mediator. Historians are right to remark upon the absence of “black,” “color,” and “race” in the catalogue of this clause’s accounting. The letter of the law, in its calculations for the purposes of representation and taxation, refers to only two types of “persons”: “free persons” and “other persons.”⁴³ While such arguments provide an important critical corrective, they forget another category of persons that adds significantly to our understanding of the relation between the unspoken terms of “race,” “slavery,” and “labor.” Article I, Section 2 attempts a comprehensive survey of the persons then present in the states, even as it resists referring explicitly to racially marked freedom or unfreedom. Supplementing its description of “whole free persons,” the clause adds: “including those bound to service for a term of years”—that is, indentured servants. In the context of the later mobilizations of the concepts of free and unfree labor, indentured servitude and its ambiguous position here between “free persons” and those “other persons” (slaves) become particularly important. While we might agree with David Brion Davis on a structural identity between indentured servant and slave, we should also recognize the difference between them, one important enough to be included as a supplement to the Constitution’s calculus of representation. While indentured servants may be just like slaves in their material living conditions, their social standing, and the experience of corporal punishment, they are also legally different: for the purposes of political representation and direct taxation, indentured servants will be counted as whole persons; those “other persons” will not.⁴⁴ This third term adds productive problems to familiar critical narratives of slavery, and its various loose synonyms, such as bondage and involuntary servitude. One immediate question, for example, is: Why should they count as whole numbers? Yet this, too, is a misleading construction of the clause. It reads: “the whole number of free persons, including those bound to service for a term of years.”⁴⁵ The supplementary “including” describes free persons. Which is to say that according to the original Constitution, one could be bound, in a state of labor bondage, and also be “free.” If in the fugitive labor rendition clause the bondsman’s ambiguous legal form of appearance “codified and masked” the history of indentured servitude, here in the apportionment clause the bondsman foregrounds that history, in order to distinguish the nominally “free” personhood of the indentured servant from the unnamed slavery of those “other persons.” The figure of the bondsman thus displaces that binary opposition between “free labor” and the unfreedom of black chattel slavery, one regularly assumed in readings of the Constitution and in histories of citizenship, racial formation, and class formation.

Finally, suppose the “man from another country” were to read the last of the “slavery clauses,” the “migration and importation” clause? At first glance, this clause seems unequivocal in authorizing the continuation of the slave trade until (at least) 1808: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”⁴⁶ According to The Federalist Papers and other contemporary accounts, the clause was widely recognized as a “compromise” over the foreign slave trade.⁴⁷ Yet even those who recognized its slavery-sanctioning “original intent” remarked upon the ambiguity of its language and the unintended effects of such ambiguity. Arguing against ratification of the federal constitution, Luther Martin, delegate from Maryland, declared:

The design of this clause is to prevent the general government from prohibiting the importation of slaves; but the same reasons which caused them to strike out the word “national”…influenced them here to guard against the word “slaves.” They anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans, although they were willing to admit into their system those things which the expressions signified; and hence it is that the clause is so worded as really to authorize the general government to impose a duty of ten dollars on every foreigner who comes into a State to become a citizen, whether he comes absolutely free, or qualifiedly so as a servant; although this is contrary to the design of the framers, and the duty was only meant to extend to the importation of slaves.⁴⁸

Martin expressed the shared understanding that the immigrant (the man from another country) would be assimilated as a “citizen,” and that the immigrant who came as an indentured servant was “qualifiedly” free, as opposed to the absolute unfreedom of the clause’s “intended” subject, the unnamed slave. As we saw in Douglass’s 1849 editorial response to Calhoun’s “Southern Address,” Douglass echoed Luther Martin’s claim when he declared that “the framers of that cunning instrument were ashamed of the name, while they had not the honesty to renounce the thing, slavery.”⁴⁹ The historical and literary-critical point to emphasize here is that this disjunction between the “expression” and the “signified,” between “name” and “thing,” is one that inhered in the original ambiguity of the Constitution’s text.

Indeed, only a decade after the federal constitutional convention and long before the rise of broad antislavery agitation within the United States, the language of this apparently unequivocal “slave clause” came under scrutiny in the debates of the Alien and Sedition crisis. In the congressional debate over the Federalists’ Alien Friends Act of 1798, Jeffersonian Republicans cited the 1808 provision of the “migration and importation clause” to argue that the Alien Friends Act was unconstitutional. While Federalists asserted that the “migration and importation clause” referred solely to the slave trade, Jeffersonian Republicans insisted that the clause also applied to the immigration of free persons. They argued that the word “person” was general, and included immigrants, and that in addition to “importation,” which applied to the traffic in persons chattel—that is, slaves brought to the United States without their consent—the clause used the term “migration,” which indicated a “free act of the will.” This debate over the interpretation of that other key “slave clause” was resolved only when Abraham Baldwin (the only representative then in the House who had helped frame the Constitution) agreed that the clause applied to immigrants as well as to slaves. In doing so, Baldwin recalled the objections raised during the convention debates over the use of the word “slave” in the Constitution.⁵⁰

As I have argued, the bondsman mediates the two opposing poles of personhood codified in the letter of the law: namely, the subjection of chattel slavery on the one side and the “freedom” of self-constituted political subjectivity on the other. The bondsman is thus a vanishing mediator in the strongest sense: as the “catalytic agent that permits an exchange of energies between two otherwise mutually exclusive terms,” and thereafter disappears.

Literary History and Forms of Contingency

Douglass recognized the labor bondage of both the slave and the servant to be the absent presence of the Constitution, reading the figure of the bondsman as the trace of this erasure. By reinterpreting the so-called slave clauses as referring instead to the labor bondage of indentured servitude and apprenticeship, Douglass draws our attention to the figure of the bondsman, whose ambiguous form of appearance in the letter of the law registers the historical links between enslaved and “free” laborers. In doing so, Douglass points to labor exploitation as an underlying core of the slavery debates. Douglass recognized the fundamental historical role of both enslaved and bound-yet-free labor to the building of the republic; he also recognized the need for some proper accounting. In an insight that few modern scholars have taken up, however, he went further to argue that the erasure of the word, the refusal out of guilty shame “to name the thing,” provided for the radical revision of the Constitution’s meaning and purpose. For if ambiguities of reference arise from the slave’s forms of appearance in the law, the words used to inscribe them in the Constitution could be given an altogether different “construction.” As Douglass asserted: “The language in each of the provisions to which the [Calhoun] address refers…[bears] the very opposite of the construction given it by this wily band of slaveholders, and they have just reason to apprehend that such a construction may yet be placed upon that instrument as shall prove the downfall of slavery.”⁵¹The point to emphasize here is that Douglass situated his own interpretation of those words written in the founding past within the diachronic movement of history itself, whose future, in what Douglass called “the ever-present now,” was still undecided.⁵²

One of my historical arguments thus far has been that Douglass’s reading practice here illuminates the broader transformation in legal-literary hermeneutics caused by the political crises over slavery. Douglass’s “man from another country” highlights as well one of the critical claims of this study, which is that in order to historicize more fully the cultural texts of the past, we must also attempt to recover their historical situations as moments of contingency, to recall a sense of that “ever-present now.” This will require a rewriting of the historical context itself. It is to the question of how modern cultural historians can approach the texts of the past while recovering their historical situations of radical contingency to which we now turn.

Once again the bondsman, as legal form of appearance and as vanishing mediator between “subject” and “citizen,” will aid us in this elaboration. As a narrative concept which finds its vocation in accounts of historical transition, the bondsman can likewise be deployed productively to specify the critical perspective on history and periodization employed throughout this study. In the passage from any precapitalist mode of production to what Marx designates “the specifically capitalist mode of production” (Capital 1: 1021), there remains the distinction between the formal subsumption of labor by capital and its real subsumption. The first key point of this distinction between the formal subsumption and the real subsumption of labor by capital is “that capital subsumes the labour process as it finds it, that is to say, it takes over an existing labour process, developed by different and more archaic modes of production” (Capital 1: 1021). In such moments of labor’s formal subsumption by capital, the formal conditions for capitalist production arise or (depending upon the scale of development) are introduced by capital itself. The most central of these formal conditions is the transformation of the existing types of labor into wage labor. Marx refers to several examples of such formal subsumption of labor under capital:

When a peasant who has always produced enough for his needs becomes a day labourer working for a farmer; when the hierarchic order of guild production vanishes making way for the straightforward distinction between the capitalist and the wage-labourers he employs; when the former slave-owner engages his former slaves as paid workers, etc., then we find that what is happening is that production processes of varying social provenance have been transformed into capitalist production. (Capital 1: 1020)

The formal subsumption of labor requires the transformation of these different types of bondsmen into “free” laborers. Marx emphasizes that this change in forms of labor will occur most spectacularly through the use of law (in “mystified” forms of appearance): wage laborer and capitalist will meet as formal equals on the market (as seller and buyer of labor), through the legal form of the wage contract; and the worker must enter this market precisely because the only legal “property” he owns is his labor, now a commodity for sale. Necessity subjects them to the laws of contract and wage labor because, with their formal subsumption by capital, these workers become “free in a double sense”: “Free workers in the double sense that they neither form part of the means of production themselves, as would be the case with slaves, serfs, etc., nor do they own the means of production.…The free workers are therefore free from, unencumbered by, any means of production of their own” (Capital 1: 874). As I discuss in chapter 1, this formal subsumption of labor requires the assimilation and disciplining of these laboring subjects, their transformation into responsible and accountable free workers who recognize the obligations of contract and the bonds of debt.

However, while the labor process at this juncture is formally subsumed under capital, this “change does not in itself imply a fundamental modification in the real nature of the labour process” (Capital 1: 1021). Such subsumption of labor will remain “merely formal” (Capital 1: 1024) so long as it remains based on the production of absolute surplus-value (Capital 1: 1025). In contrast, with “the production of relative-surplus value the entire real form of production is altered, and a specifically capitalist form of production comes into being.…Based on this, and simultaneously with it, the corresponding relations of production between the various agents of production and above all between the capitalist and the wage-labourer, come into being for the first time” (Capital 1: 1024). Marx thus argues that the transition from any precapitalist production to the “specifically capitalist mode of production” actually involves two moments in the transformation of the relations of production, and of the workers (“the agents”) in these relations. Whereas the formal subsumption of labor is characteristic of the period of manufacture, the real subsumption of labor is characteristic of large-scale industry, requiring that the capitalist be “the owner of the means of production on a social scale”; capital thus “assumes social dimensions, and so sheds its individual character” (Capital 1: 1035). This distinction between the formal subsumption of labor and the real subsumption of labor is crucial to a historicization of the transformations of citizenship, that modern “subjectivity” inscribed by the Constitution, and of the racialization of its slaves and bond servants. Such a distinction is one that maintains the Marxist claim for the “determination in the last instance” by the economic, yet registers as well the active role of “superstructural” changes in, for example, the legal form of appearance of labor during its formal subsumption. which in turn serves as the conditions of possibility for capital’s subsequent real subsumption of labor.

Against the critical tendency of applying a static binary opposition between slavery and the “freedom” of wage labor to texts emerging in different historical situations—for example, to antislavery literature of the eighteenth century and antislavery literature of the mid-nineteenth century—we must emphasize the qualitative transformations constituted by that material shift from “mere” formal subsumption to the real subsumption of labor. These distinct historical situations will pose different expansions or contractions of any particular text’s horizon of thematic and formal possibilities. For example, we must distinguish the significance of the formally “free” laborer, against which the slave was defined during the early national period (the period of manufacture, characterized by the formal subsumption of labor) from the later significance of “free labor” and “free-labor ideology” in mid-nineteenth-century America, under what Marx famously described as “capitalist production in full swing” (Capital 1: 717). As I argue in chapter 1, it will make all the difference to a historically precise interpretation of the slavery-freedom opposition as it appears in The Interesting Narrative of the Life of Olaudah Equiano (1789) that labor in this period is in the process of being formally subsumed, but not yet socialized as it would be under the large-scale industrial capitalism of the mid- and late nineteenth century, this latter socialization a “real subsumption of labor” wherein it is then necessary to speak of the “social productive forces of labour,” and of a “collective labourer” (Capital 1: 1052–54).⁵³ Likewise, analyses of mid-nineteenth-century texts addressing the slavery-freedom opposition—be they legal-political debates over the Compromise of 1850 and the federal Fugitive Slave Act or literary texts such as My Bondage and My Freedom (the subject of chapter 4) and Moby-Dick (the subject of chapter 5)—would have to explore the various ways these texts register and apprehend the political and cultural mediations of the real subsumption of labor, and the transformation of slave and free laborers in the relations of production. This focus on the diachronic register of historical transformation is also marked by our “man from another country”: In the midst of changes in the very conceptions of free personhood and citizenship initiated by the political struggles of the antebellum Union crisis, Douglass’s reading recovered the significance of the bondsman to that original scene of writing, the constitutional founding of 1787–88. It is a historical materialist distinction maintained throughout this study.

Grounding the legal and cultural transformations of citizenship in this dialectic between slavery and free labor illuminated by Douglass, Bonds of Citizenship argues that in the age of Emancipation, the attributes of free personhood became identified with the rights and privileges of the citizen; and that individual “freedom” thus became identified with the nation-state, and understood as possible solely through national citizenship. The first part (chapters 1 and 2) situates early American citizenship and its literature, the early American novel, within the context of Atlantic slavery, Anglo-American legal culture, and the rise of nationalism. Chapter 1, “Bound by Law: Apprenticeship and the Culture of ‘Free’ Labor” examines the figures of apprenticeship and indentured servitude in a range of transatlantic texts of the late eighteenth century, in order to delineate the ambiguous legal and cultural spaces between slavery and “freedom.” Throughout Hector St. John de Crèvecœur’s Letters from an American Farmer, Benjamin Franklin’s Autobiography, Ottobah Cugoano’s Thoughts and Sentiments on the Evil and Wicked Traffic of the Slavery and Commerce of the Human Species, and Olaudah Equiano’s Interesting Narrative of the Life of Olaudah Equiano, indentured servitude figures as an allegory of transformation, as a transitional state of passage by which the subject attains the freedom of self-mastery. Crèvecœur explicitly stages this transformational allegory as the coming-into-citizenship of “the American, this new man.”⁵⁴ Franklin employs the allegory to depict his disruption of his own apprenticeship indentures as an exemplary moment of “asserting [his] freedom.”⁵⁵ In the pioneering Black Atlantic texts of Cugoano and Equiano, apprenticeship and indentured servitude function as the formal structuring principles of textual self-representation. Further, they are proposed as practical models for gradual emancipation and the assimilation of the formerly enslaved into the late-eighteenth-century culture of merchant capitalism. As these texts reveal, in the late-eighteenth-century transatlantic world, the figure of indentured servitude had not yet been identified with “involuntary servitude” and instead could model the path to freedom. It is this cultural recognition of apprenticeship and indentured servitude as ambiguous, transitional states of labor bondage that the Constitution’s erasures of race and slavery both depends upon and disavows.

In his early American novel Arthur Mervyn; or, Memoirs of the Year 1793, Charles Brockden Brown uses this same figure of apprenticeship as allegory of transformation to highlight the problems and potential dangers inhering in the representative subject of citizenship. In Arthur Mervyn, these dangers arise from the radical disjunction between an individual’s civic persona and his invisible interior self, that imaginary space of moral sense and inner “character.” This disjunction between visible persona and invisible character destabilized traditional republican conceptions of virtue and credibility. In chapter 2, “Civic Virtues: Narrative Form and the Trial of Character in Early America,” I argue that the early American novel mediates this change in social forms through innovations in literary form. Reading the shared epistemological forms and narrative structures of texts such as James Wilson’s Lectures on Law and Brown’s Arthur Mervyn, I show how legal theorists repeatedly rely upon the apparently distinct realm of aesthetic judgment to decide the truth of legal and historical facts. Situating both the novel and Anglo-American theories of evidence in relation to Enlightenment theories of natural language, I argue further that Brown’s work is exemplary of the migration of procedures for ascertaining historical fact from the sphere of law to that of the novel. In Arthur Mervyn, the ideal republican citizen is a character whose testimony conforms to the law’s rules of evidence, and the narrative testimony that ultimately prevails is that which the novel represents as a true account of the historical facts. Taking Brown’s work as exemplary, this chapter thus situates the rise of the novel as a formal representation of the “imagined community” of the new nation in relation to what Christopher Tomlins describes as the concurrent “rise of the rule of law…to a position of supreme imaginative authority.”⁵⁶

This focus on apprenticeship and indentured servitude thus also advances the investigation of several key themes and concepts explored throughout the study. In these first chapters I explore, in particular, the interdependent relation between the rights and privileges of the formally free subject and the legal spaces of the nation—a relation elaborated through the construction of categories such as “jurisdiction” and “territory”; and the definition of “police powers” over freedom of mobility. I begin with this earlier literary-historical period in order to historicize both the continuities and the transformations in literary and legal discourses of race, labor, and citizenship, between the early republican period and the mid-nineteenth century. By beginning with this earlier period, my study shows how many of the concepts and themes central to nineteenth-century literature, law, and civic culture—such as freedom of mobility; or the opposition between private conscience and public law—have intellectual precursors and formal models in the literature of the late eighteenth century.

In the second part of my argument (chapters 3, 4, and 5), I study how citizenship was transformed by antebellum debates over slavery, free labor, and national union. While other studies have explored how slavery shaped the definition of freedom in antebellum America, few have examined how developments in the world of wage labor, such as changes in contract law, the movement for the ten-hour workday, or the rise of “free labor” ideology itself, influenced legal and cultural understandings of slavery, and conceptions of slave personhood. As I argue in these chapters, citizenship was the legal form through which slave law and wage-labor law articulated their representations of free personhood, and the attributes of subjectivity required for such personhood. Chapter 3, “Fugitive Bonds: Contract and the Culture of Constitutionalism,” is organized around the reconfigurations of race, labor, and national citizenship during the Union crisis. Specifically, I examine the split within the antislavery movement between two radically opposed understandings of the constitutionality of slavery. I frame the chapter with a study of Frederick Douglass’s speeches and editorials immediately prior to and immediately following the 1850 Compromise, in order to track the development of Douglass’s shift from the Garrisonian position, which read the Constitution as a proslavery document, to the political- abolitionist position, which read the Constitution as fully opposed “in letter and spirit” to slavery. As we have seen, Douglass’s writings on the Constitution elaborated the trope of “a man from another country,” the figure for a legal hermeneutic whose perspective locates constitutional “intention” exclusively in the letter of the law. In this chapter, I historicize this trope as well as Douglass’s shift more generally, and I ground the changes in the culture of constitutionalism in the debates over slavery and free labor. I do so through related analyses of Joseph Story’s Commentaries on the Constitution of the United States (1833); the Supreme Court decision in Prigg v. Pennsylvania (1842); Wendell Phillips’s The Constitution: A Pro-Slavery Compact (1844); and Lysander Spooner’s The Unconstitutionality of Slavery (1845), all of which debated the Constitution’s “original intent” regarding slavery. Further, I historicize the slavery debates themselves in relation to transformations in contract and labor law initiated with the antebellum market revolution.⁵⁷ In doing so, I make the case for a new understanding of the historical links between abolitionism, free-labor ideology, and the social construction of “race.”

Building upon the revisionary historical arguments of the third chapter, chapter 4, “Hereditary Bondsman: Frederick Douglass and the Spirit of the Law,” advances a new interpretation of Douglass’s My Bondage and My Freedom (1855). If historians and literature scholars have underestimated the radical character of Douglass’s change of political views in the 1850s, they have also underestimated the significance of Douglass’s changed self-representation in My Bondage and My Freedom. The dominant critical and popular understandings of Douglass remain based on the 1845 Narrative of the Life of Frederick Douglass, published when Douglass still adhered to the Garrisonian view of the Constitution as a “pro-slavery compact.” As I argue, Douglass’s transformed political views led to significant changes in the content and the form of his literary self-representation, from revisions of formative episodes in his life to changes in narrative structure and point of view. I focus in particular on the representations of slave women in My Bondage and My Freedom to describe Douglass’s transformed understanding of the relation between gender and racial classifications; and on the depictions of Douglass’s “apprenticeship life” to describe his transformed understanding of the political and economic links between slave labor, “free labor,” and the formal freedom of American citizenship.

The slavery debates underscored a tension inherent in the very figure of modern citizenship, between the private self (of morality and ethics) and the public self (of market and law). As I discuss in chapter 3, for example, antislavery activists laid claim to the truths of the private self—“moral law,” or “the higher law” of God—over and against the demands of positive law and civic duty. In the first two chapters, I describe this figure as the “split subject” of citizenship: the individual citizen understood as structured by this central division between private self and public persona. In chapter 5, “‘If Man Will Strike’: Moby-Dick and the Letter of the Law,” I read Melville’s novel as a symbolic mediation of the transformations in this “split subject” of citizenship caused by the antebellum market revolution. My readings historicize the novel in relation to the labor struggles of this period: “criminal conspiracy” labor cases, labor strikes, and the transformations of contract law. In contrast to influential readings of Ahab as a “dictator” or “totalitarian” figure, I read Ahab as a romantic figure of resistance to the market and the rule of law. In the historical perspective advanced in this chapter, the hunt for Moby-Dick is a battle against the expansion of the rule of law—an expansion which Melville depicts as the colonization of individual and collective freedoms by the nation-state.