Race, law, and literature: they form part of who we are as Americans and readers. After I learned about Karla F.C. Holloway’s book, Legal Fictions: Constituting Race, Composing Literature (buy at Amazon or Duke UP), I wrote to ask her for an interview. She graciously agreed and this is the result.
Thank you for agreeing to this interview, Karla. You discuss early in your book racial politics and how they were reflected in the bizarre antics of the “birthers” and their obsession with the matter of where President Obama was born. You go on to say, “identity politics became at least as serious a facet of twenty-first century life as they had been in the life of the nineteenth and twentieth century.” Can that be? After all, slavery does not exist in the U.S. in legal form and lynching is no longer a common occurrence. Could you explain what you mean by “serious” here?
Hi, thanks so much for your questions and interest, and especially for your careful, thoughtful, and provocative reading of Legal Fictions. I could not have wished for a better interlocutor. So…
First, I think it’s really important to clarify that the reality of enslavement need not be a literal comparative for every racially motivated state action. However, the “badges and incidents” of slavery – the language of the thirteenth amendment – are indeed institutional inequities that linger. If we don’t take them and their lineage seriously, structural matters like voting rights, education, incarceration, employment, and health will not be correctly understood as attached to state and corporate policies that perpetuate disparate impact. So “serious” means one’s health, welfare, and livelihood being refracted through a racial lens that has its history in the structure of enslavement and the ways in which a contemporary impact is evident in policies that continue patterns of discrimination. To the extent that identity can predict a person’s potential or possibility, it’s serious.
You write, “The answer to ‘how is literary blackness made’ is both structural and spatial.” Could you elaborate?
Well, it’s structural in its legal intimacy. The way “one-drop” works to create a character, or the way that Richard Wright’s Black Boy is not allowed to check out library books or the ambivalence of Beloved’s death – whether it’s an act of wrongful deprivation of property or infanticide.
It’s spatial in the ways in which these assignations create a storied space – a haunting for Morrison’s Beloved – with a plantation named “Sweet Home” and a house that is “packed to the rafters with some dead Negro’s grief”; a black boy who seeks a place for his intellectual freedom outside of his constrained circumstances in Richard Wright; and how racial hiding complicates the neighborhoods in which Nella Larsen’s Irene and Clare (Passing) negotiate Chicago, Harlem, and Manhattan. Even the basement prison in Walter Mosley’s The Man in My Basement recalls a slave ship as well as enjoys the propertied autonomy due to a homeowner. Space and structure are shared assignments in black literatures.
I was fascinated by this passage, “As visibly substantive a history as the past provides for law and literature, history is ultimately effaced by the heft of judicial formations and literary structures that render the actual past less necessary than the fictions that come to represent it.” Please tell us more.
I believe we actually recall and use the stories of our histories rather than their factual residue. The symbolic emblem of the confederate flag, for example, has come into a meaning all of its own in the twenty-first century. It incorporates a fiction as much as it is invested in a factual history.
So when a creative writer uses the figurative freedoms inherent in symbolism, it’s a much more flexible playground. Additionally, the law tosses extraneous information as it narrows the text to the resolvable legal question. Fiction allows all that information back into the pot, remixes it, and it emerges with memory, fact, history, myth, folk-stories all in equally authoritative measure.
For example, David Bradley’s The Chaneysville Incident actually turns on what evidence law would classify as a dying testimonial – which in the law has immediate credibility. But the thick and complicated story that Bradley creates around that testimony is what moves the novel, troubles its characters, and complicates their relationship to the past.
You discuss the legal case State v. Mann and say that it turned on the issue that is at the core of your book. What was State v. Mann?
At its core, the narrow legal question in this 1829 case is what might be the appropriate legal consequences of a battery by a master on a slave. But of course, the broader social question raises extraordinary situational nuances.
The enslaved woman, Lydia, was on loan to John Mann. Does he have the same rights as her mistress? Was his punishment of her attempt to run away (he shot her) disproportionate? The court ruled, reluctantly, that a master’s authority over a slave must be uncontrolled and cannot be subject to judicial scrutiny if the structures of slavery are to be intact. The judicial reluctance is interesting but a moot point to the legal outcome. For Legal Fictions, this outcome and argument highlight the very issues of erasure of the bodies that matter (what of Lydia?), the legal protections of whiteness that were invested in and authorized by legal outcomes, and most important, how a person who was once property might ever escape that shroud – especially if the property protected was the value of whiteness.
It’s a case that suggests we read literature not only for what happens to black characters because they are black, but what is maintained for whiteness and white folk as long as the distinction of race matters. One telling legal example: “defamation” can be argued for calling a white person black, but calling a black person white is not defamatory. Now that’s a legal reasoning worthy of a fiction!
This is an arresting statement, “Slavery’s origin story has a shackle that shifts its shape, but not its grasp.” What do you mean by the term “origin story”?
“Origin story” fully means its generation – its seed. For slavery, the origin story is the site and narrative that generated our conduct regarding race. My argument is that the conduct in those places reified a principle of “by whatever means possible” we will preserve necessity of white privilege in order to form a nation and to perfect the union. We found the way to do this with an incredibly useful and increasingly complex legal architecture.
You tell us that the physical constitution of personhood is what is at sake in contemporary as well as earlier black fiction as much as it is a recent matter of law. Could you give us some examples of black fiction of the last ten years that illustrate this idea? And recent legal cases that do the same?
All the company of neo-slave narratives, including Dolen Perkins-Valdez’s Wench; then Morrison’s Home, that explores the trauma of a post-Korean war veteran whose sister is the subject of medical experiments, Charles Johnson’s Middle Passage. Walter Mosley’s The Man in My Basement engages the story of a black man who claims his family as never enslaved being able to execute a contract and the legal boundedness of his decision, and Danzy Senna’s Caucasia, a novel about civil rights activism and passing.
In law, I’ll focus on the federal court, so of course the SCOTUS considerations of Affirmative Action cases, Fisher v. University of Texas, and the prior case Grutter v. Bollinger; then employment discrimination cases that will make it more difficult to prevail with Title VII (race discrimination) claims, Univ. of Texas Southwestern Med. Center v. Nassar (an employment discrimination case) and EEOC v. Caldwell Freight Lines – a race discrimination case that alleged the company’s refusal to have black dock workers. And, of course, now the contemporary cases that will reach the court regarding redistricting and voting rights.
Could you please tell us why you chose in your book to focus on black fiction from the twentieth and twenty-first centuries?
I wanted to see what lingered from a literary tradition that was deeply engaged with slavery, identity and freedom in the eighteenth and nineteenth centuries. I discovered a lot lingered (I think of it as a haunt), grew more complex, more problematic, and more attached to a national narrative rather than becoming and illustrating an isolated population’s story.
Could you please tell us what you mean by literature’s “ease with the obscure” and how that relates to the treatment of law and race in black writing?
Literature looks for symbol, enjoys it, and revels in its flexibility. Obscurity is its playground. At the same time, I think of Robert Frost’s poem, “O Star,” where he writes, “some mystery becomes the proud/But to be wholly taciturn in your reserve/Is not allowed.” We want literature to “say something to us we can comprehend” (Frost) but at the same time, we depend on it to retain the star-struck authority – the mystery – that remains just outside of our reach.
This is a thought-provoking statement, “Black folk made for particularly complex literary characters precisely because of the way in which their very bodies were out(side of)law.” Could you give some examples of such literary characters?
Morrison’s Sethe – a mother and a murderer. Alice Walker’s Celie: is she a child of incest or abuse or all of these illegitimacies? Tayari Jones’s “illegitimate” sisters – one who is kept as a “secret” in Silver Sparrow. Walter Mosley’s Ptolemy Gray who survives medical experimentation – because they could do it to a black man. Toni Morrison’s new novel, Home also explores this issue of medical experimentation on Frank Money’s sister. Bebe Moore Campbell’s fictionalized retelling of the Emmett Till murder in Your Blues Ain’t Like Mine. Octavia Butler’s women protagonists in Wild Seed and Kindred, and the metaphor of bondage and freedom that resonates in Ayana Mathis’ The Twelve Tribes of Hattie.
This is an intriguing statement, “In black hands, documents are contingent.” Please elaborate.
Well, I mean that “it depends.” That’s the contingency. Do they have authority or is their ownership and legitimacy questionable? Do they carry evidentiary weight or do the hands that hold them determine their value? Consider the letter Ellison’s Invisible Man carries North, the one that condemns him rather than eases his way to employment as he had been told it would. Freedom papers keep a literal hold on a body, whether one has them or not – whether one imagines them. Travel papers, documents, birth and marriage certificates – being with or without these documents all are open for revision when a black character uses these as testimony.
You write, “The processing of laws forced as much attention to color as it created ways to disclaim it.” Could you tell us how this worked in practice?
Let’s think about it this way. Our nation’s laws have worked to differentiate who was white and who was not. But perversely, we want to also use these distinctions – what the law calls “immutable differences” – to say that difference is an illegal means of separating our potentials. It’s oxymoronic, but we’ve fashioned it into a necessity.
We certainly cannot trust that society will treat everyone the same and we can all be post racial now. So the law, fairly oddly I must say, declaims the difference in order to dissolve the difference. I frankly see no way out of this conduct, but it’s worth noticing and being honest about what we are enacting when we legally notice racial difference. Affirmative action is likely the most publicly available narrative around legally cognizable differences.
I must confess I had never heard of the Rhinelander case. Please tell us about that.
Kip Rhinelander was the son of a wealthy, social register listed New York family who married a “colored” woman in 1924. Alice Jones was biracial, her mother white British, her father, who claimed his identity as British. He was a brown-skinned British West Indian. Kip claimed that he did not know his bride was colored, although their salacious letters of premarital trysts in NYC hotels were printed and sold on street-corners during the divorce trial where he claimed their marriage was a fraudulent contract. (The letters were used as proof that he saw her naked, when certain body parts [her areola especially] would be evidence that she was not white.)
It seems his family paid him (or threatened disinheritance) if he did not end the marriage. His wife won the case (remarkable in itself given her poverty and the Rhinelander family’s wealth), but the prevailing social issue seemed to be that the community did not want to think blacks were “passing” in their community without their being able to tell. There are two excellent book on this fascinating case, According to Our Hearts by legal scholar Angela Onwuachi-Willig and Property Rites by Elizabeth Pryor.
“You do what know.” Please tell us what you mean by that.
Simply that once we get used to acting as if race matters, and once we are urged to notice race in order to achieve equity – and especially when this notice is enshrined in legal regulation – the ways to the desired outcome will travel through racial notice. We are past the point – in part because of our dependence on the law and precedent, in part because of the intractability of social biases – of being able to disengage social inequities by social processes. I think it’s an odd outcome; but, because of our history, law is the only route with reasonable checks and balances on all too indeterminate social spaces.
Could you tell us a bit more about “the ontological puzzlement of the body being its own attribute”?
When a body has been owned as property, and assigned a particular value, it’s a puzzle when that same body, freed, is demeaned, denigrated, and devalued. How does it gain the authority of not-property but retain the capability of being in possession of property – a fundamental constitutional right?
So the very notion of black “being” is fixed in a contradiction. Where does the value lie? In enslavement or freedom? For black folk in the U.S., it seems to be in both. I think this complicated ontology lies at the base of black literatures.
Please elaborate on this statement, “Property could not give evidence – they could only be evidence.” The use of “they” is quite striking.
Here I target what happens when property is persons. So the “they” makes plain (I hope) that it’s not a matter of who owns the chiffarobe – although legally, it is treated exactly like this – but who owns the body. “They” inhabit an animated, vital space, as well as an inanimate, objective space. (Of course, “they” could also be horses, cows, etc., and this is almost too hurtful to engage.) Consider here the lists of property in plantation records, where the names of enslaved people are documented right alongside the furniture and farm animals. It’s a painful space of convergence.
Please tell us about the concept of “rememory” and “precedent is practice.” Could you please provide us with examples of how this plays out in black literature and in recent American history?
I’ll combine these two, because it’s a helpful example of where I read law and literature as intimately constituted and similarly invested. Toni Morrison elegantly (and even elegiacally) explains “rememory” in her novel Beloved. Sethe is explaining time to her daughter Denver and says: “I was talking about time. It’s so hard for me to believe in it. Some things go. Pass on. Some things just stay. I used to think it was my rememory.” And here she means remembering things from her own memory. Sethe continues: “You know. Some things you forget. Other things you never do. But it’s not. Places, places are still there. If a house burns down, it’s gone, but the place – the picture of it – stays, and not just in my rememory, but out there, in the world. . . . Right in the place where it happens.”
I read this luminous passage as being like the law’s doctrine of stare decisis or precedent. Something from the past, a decision, a doctrine, lingers out there in legal reasoning. Like our habits and traditions, the law has ways to give body to structures of interpretation. Precedent is rememory.
In reference to the legal cases of the Antelope and the Amistad you write, “as these cases wound their way through the courts, the numbers of Africans who literally survived until adjudication was markedly reduced from the original bodies that mattered.” Could that same case be made of many legal cases affecting blacks in the twentieth and twenty-first centuries (e.g., victims of the forced sterilization program in NC)?
I think yes, absolutely! Trying to attach compensatory relief today to families and victims of sterilization (your excellent example) is almost an unspeakable parsing of value. And yet, that’s how the law works when damages are done and assessment is rendered.
But how can we actually place a value on a state-action motivated by racial animus and that has its impact generations and generations past? How would reparations actually work? We’ve certainly seen the law accomplish this formula – for victims of terrorist attacks, for Japanese internment – but the “sixty million and more”? (Toni Morrison uses this count in Beloved.) And in the era of DNA tests standing alongside plantation records? Whites and blacks alike have “slaves in the family.” Who gets compensated? It’s a legal thicket (worthy of a fiction!).
Could you please give us examples of what you mean here, “loss of time is characteristic of black postmodernism”?
I actually think the first boundary to be exceeded in the black novel is time. Black literature loops – back in time, forward (Octavia Butler’s Kindred, Gloria Naylor’s Linden Hills).
The freedom that comes from the lack of temporal boundedness allows ghosts to haunt, ancestors to be recalled and the urge of future generations to tug at our present realities (I’m thinking here of Gayl Jones’s Corregidora where the ancestral legacy and declaration that all the generations must have children, in order to be a record of the rapes that were otherwise, and legally, undocumented, is a future promise that burdens and weakens a contemporary woman.)
“Once race became conferrable, the associated narratives became more and more complex.” Could you give us some examples of actual legal cases and literary portrayals of such issues?
Richard Wright’s Native Son narrativized the crime, capture and trial of Robert Nixon in 1938 Chicago. Of course, many know now that Toni Morrison’s Beloved took its inspiration from Margaret Garner’s 1856 act of infanticide in Kentucky. Nella Larsen’s Passing (and my own novel-in-process A Death in Harlem) has the 1924 Rhinelander case as an available narrative of what happens when one has to prove which race is which.
You write, “The social is a consequential enactment of the legal.” How is this depicted in black literatures?
We get the freedom of liberal personhood through the express grant of fundamental rights. This question of entitlement weaves its way through black literatures, consistently making legitimacy (and the regulation) of families, of bodies, and of acts a theme and significant dimension of plot.
Could you please elaborate on the concept of the shared space between legal reasoning and the literary imagination? Is that more common in black literatures than, say, women’s writing by non-black authors?
I think so, but I also think that whenever race becomes a dominant or important factor in the story, the law finds its way into the narrative. Consider Ann Patchett’s Run – where the legitimacy of the adopted black children are at issue, Barry Unsworth’s The Quality of Mercy – that revisits the slave trade and the issue of property vs. personhood, and of course Harper Lee’s To Kill a Mockingbird, in which the courtroom scene is still among the most famous literary moments.
What do you mean by “the luminous site where stories meet”?
It’s simply the place where, when the word hits the page, it creates a universe – a light box of starry potential.
You write, “Blacks entered the nation’s fictions in the same way that we entered the nation.” Can you explain how so?
Struggling between enslavement and freedom. The first black fictional characters’ stories were narratives about their slavery, and their freedom: William Wells Brown Clotel; or The President’s Daughter, Harriet Jacobs’ Our Nig, Hannah Craft’s The Bondwoman’s Narrative…
Whom do you see as the primary audience for your book? There are quite a few potential audiences, after all: those who study law, literature, and social science. Speaking of which, you hold an impressive array of appointments in different fields: English, law, women’s studies, African and African American studies. How would you characterize yourself as a scholar in terms of emphasis, or is that even possible given the wide range of skills needed to study black literatures?
I just think I’m relentlessly interdisciplinary – intersectional is the word of the day. But I’ve always been like this, wandering between subjects, seeing places of convergence, wondering at the potential intimacies, provoking the embedded relationships. I did make it a point to formally study law (I have a Master of Legal Studies) because when I became convinced of the claim of and composition by law on black bodies – in fiction and in fact – I did not trust myself to read the discipline as objectively as it requires. I’m glad I did this; but it was one of the most challenging moments of my professional life. I earned that degree in 2005, somewhat later than most folks my age who are far past the years of enlisting in a degree program!
As for audience, I imagine a popular and academic audience both: those who read wonderfully crafted literature for pleasure and those who are literary and legal scholars. And especially those who wonder about race, post racialism as the new imaginary, and why some characters are fairly consistently named as racially distinct and others are normatively white. I wrote about this in my BookMarks: Reading in Black and White.
Whom do you consider the most promising black writers at this point?
Edwidge Danticatt makes me catch my breath, Toni Morrison stills me, Charles Johnson is fierce, Chimamanda Adichie lingers, Elizabeth Nunez catches you in a grip of story and does not let go, Tannarive Due explores the liminal spaces, Martha Southgate plumbs the interior. There are so many. It’s a full and precious moment for black literatures.
Thank you for your time.
Thank you so much for these fabulous questions!