RACE AND SELECTIVE LEGAL MEMORY: REFLECTIONS ON INVENTION OF A SLAVE

In 1858, the United States Attorney General issued an opinion, Invention of a Slave, declaring inventions by African Americans, enslaved and free, unpatentable. Within a few years, legal changes that abolished the law of slavery rendered the opinion obsolete, and it became forgotten, dropped from legal memory. Combining history and Critical Race Theory, this Essay repositions the opinion as a remembered legal story and argues that law’s selective memory has carried a cost. I excavate the generations of African American activists who researched and wrote about the opinion and its backstory of an enslaved blacksmith who invented an innovative plow. Setting their storytelling in the context of post-Emancipation advocacy for the “rights of belonging,” I demonstrate the political stakes of their efforts in the relationship among inventive ability, patents, and citizenship. I reflect on my first encounters with Invention of a Slave as an obscure part of the antebellum past and on the new perspective gained from this history of remembering. I argue that these stakes persist, making this story part of the living present of race and law. I use this personal storytelling to consider the costs of legal forgetting and the possibilities of mitigation both in this case study, with implications for the patent system and our ongoing national conversation about paths to citizenship, and in the broader projects of curating law’s memory and fulfilling law’s formal promises of racial equality.

The full text of this Essay can be found by clicking the PDF link to the left.

* Professor of Law and Affiliate Professor of History, Northeastern University. B.S., Yale University; M.A./J.D., University of California-Berkeley; Ph.D., Harvard University. For feedback on earlier drafts and helpful discussions, I thank Aziza Ahmed, Bernadette Atuahene, Tiffani Burgess, Margaret Burnham, Tuneen Chisolm, Brian Frye, Jonathan Kahn, Deidré Keller, Lateef Mtima, Jason Rantanen, Patricia Carter Sluby and audiences at the Northeastern Law Faculty Research Workshop, Washington University School of Law, the 4th Annual IP Mosaic Conference, the Chicago IP Colloquium, and the Northwestern/ABF Legal History Colloquium. For cheerful and skilled assistance locating sources, I thank Northeastern law librarians Scott Akehurst-Moore and Warren Yee.

Introduction

In 1858, Attorney General Jeremiah S. Black issued an opinion on the patentability of a “new and useful machine invented by a slave.” 1 Invention of a Slave, 9 Op. Att’y Gen. 171, 171 (1858). He needed only three sentences to explain that an invention by an enslaved inventor could not be patented. The Attorney General relied on the Supreme Court’s holding the previous year in Dred Scott v. Sandford that African Americans were not citizens, whether free or enslaved. 2 See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 413 (1857) (stating that neither free nor enslaved blacks are “citizens within the meaning of the Constitution of the United States”); Invention of a Slave, 9 Op. Att’y Gen. at 171 (stating that a slave’s invention could not receive a patent given “the present state of the law”). Without the ability to swear an oath of citizenship, enslaved persons could not apply for patents. 3 Patent Act of 1836, ch. 357, § 6, 5 Stat. 117, 119 (1836). This reasoning also placed free African Americans outside the bounds of patent law. 4 Invention of a Slave, 9 Op. Att’y Gen. at 171 (adopting the reasoning of the patent commissioner). For the reasoning of the patent commissioner, see Letter from Joseph Holt, Comm’r of Patents, U.S. Patent Office, to Oscar J.E. Stuart (Nov. 24, 1857), reprinted in Brian L. Frye, Invention of a Slave, 68 Syracuse L. Rev. 181, 194 (2018); Letter from Joseph Holt, Comm’r of Patents, U.S. Patent Office, to Jacob Thompson, Sec’y, U.S. Dep’t of the Interior (Dec. 12, 1857), reprinted in Frye, supra, at 195. As a comprehensive article on the opinion, Frye’s Invention of a Slave is an invaluable resource. My purpose in this Essay is not to repeat Frye’s research but rather to ask a different set of questions by interrogating the forgotten writers whose efforts allow us to remember the opinion. Further, the Attorney General declared that the owner of an enslaved inventor could not patent the invention, 5 See Invention of a Slave, 9 Op. Att’y Gen. at 171–72. as the owner was barred by the statutory requirement that only the “original and first inventor” could receive a patent. 6 Ch. 357, § 6, 5 Stat. 117, 119. His opinion, Invention of a Slave, created a formal racial barrier to the United States patent system, which free African Americans had previously accessed. 7 This racial barrier was only erected against African Americans. A citizen of another country, including African countries, could access the system by swearing an oath declaring “of what country he is a citizen.” Ch. 357, § 6, 5 Stat. 117, 119.

Both enslavers and anti-slavery advocates expressed outrage about the opinion, but amid the national tumult over slavery that Dred Scott singularly failed to resolve, the controversy was soon overtaken by events in Bleeding Kansas, the presidential election of 1860, secession, and, ultimately, the Civil War (1861–1865). Within a few years, the law changed. Edward Bates, Attorney General under President Abraham Lincoln, issued an opinion stating that, contrary to Dred Scott, all natural-born Americans regardless of color or race were citizens, and the Reconstruction Amendments and early federal civil rights legislation abolished the law of slavery, rendering Invention of a Slave obsolete. 8 U.S. Const. amends. XIII, XIV, XV; Civil Rights Act of 1866, ch. 36, 14 Stat. 27 (1866); Citizenship, 10 Op. Att’y Gen. 382 (1862).

As lawyers, we have a collective memory, curated by law reviews, as well as by published cases, treatises, and the content of law school classes—a memory both continuous and changeable. 9 What I am calling a curated legal memory is related to the legal “canon” or “canons,” which are “a set of standard texts, approaches, problems, examples, or stories that . . . members repeatedly employ or invoke.” J.M. Balkin & Sanford Levinson, Legal Canons, at ix (J.M. Balkin & Sanford Levinson eds., 2000); see also J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 1024 (1998) [hereinafter Balkin & Levinson, Canons of Constitutional Law] (arguing that the cases and materials discussed in casebooks and legal publications create a “world” that “shapes our imaginations”); Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4 (1983) (choosing the term “nomos” to describe the normative world of the law created by narratives); Shubha Ghosh, Introduction: A Duty to Remember, 68 Syracuse L. Rev. 1, 1 (2018) (examining forgotten cases to consider the construction and contingency of the legal canon); Judith Resnik, Constructing the Canon, 2 Yale J.L. & Human. 221, 221 (1990) (noting that legal texts determine “what (and who) is given voice; who privileged, repeated, and invoked; who silenced, ignored, submerged, and marginalized”). I am using legal memory broadly to encompass legal stories that are included in formal legal publications, even those that are not repeatedly invoked nor part of legal pedagogy. Invention of a Slave was dropped from that memory, uncited in judicial opinions and infrequently discussed, even in patent law scholarship. 10 For a rare exception to this legal forgetting, see Chas. E. Tullar, Parties in General, 1 J. Pat. Off. Soc’y 131, 132 (1918). For other examples, see infra notes 62, 150 and accompanying text. As legal scholar Brian Frye explained when analyzing the opinion as “a forgotten IP case,” lawyers forgot it for “the best reason.” 11 Frye, supra note 4, at 182; Ghosh, supra note 9, at 8 (introducing the symposium issue on forgotten IP cases and defining “case” broadly to include Invention of a Slave). The formal racial barrier to patents it had erected was swept away, never to return.

While there are sound reasons why lawyers do not continue to cite and discuss obsolete rulings, there are always exceptions. 12 See, e.g., Balkin & Levinson, Canons of Constitutional Law, supra note 9, at 1001 (noting that judicial opinions and new legislation shape the legal canon). The national controversy that prompted Dred Scott, the heated debates about the opinion after it issued, and the bloody war and constitutional changes that rendered it obsolete have kept that opinion in the pantheon of significant cases we continue to teach and discuss. 13 See Daniel A. Farber, A Fatal Loss of Balance: Dred Scott Revisited, 39 Pepp. L. Rev. 13, 16–21 (2011) (situating Dred Scott within the broader historical context of disputes over slavery in U.S. territories); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 385, 436–42 (2011) (arguing that Dred Scott and other “anticanonical” overruled decisions are remembered and taught as part of “contingent professional practice” for historical reasons); Gerard N. Magliocca, Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott, 63 U. Pitt. L. Rev. 487, 488 (2002) (describing Dred Scott as an example of an opinion generated in a time of “great constitutional stress”). For arguments about the continuing relevance of Dred Scott, see generally Balkin & Levinson, Canons of Constitutional Law, supra note 9, at 976; Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 Chi.-Kent L. Rev. 49 (2007); Sanford Levinson, Slavery in the Canon of Constitutional Law, 68 Chi.-Kent L. Rev. 1087, 1090–91 (1993). For contemporary scholarship analyzing Dred Scott, see generally, e.g., Jennifer M. Chacón, Citizenship and Family: Revisiting Dred Scott, 27 Wash. U. J.L. & Pol’y 45 (2008); Justin Buckley Dyer, The Substance of Dred Scott and Roe v. Wade, 16 Geo. J.L. & Pub. Pol’y 421 (2018); Symposium, 150th Anniversary of the Dred Scott Decisions, 82 Chi.-Kent L. Rev. 1 (2007). Invention of a Slave appears to be a mere footnote to that significant opinion. The epic saga of Dred and Harriett Scott and their multiple legal battles became a matter of national import as their fight for freedom ended up in the Supreme Court. 14 For Harriett Scott’s story and legal battles, see generally Lea VanderVelde & Sandhya Subramanian, Mrs. Dred Scott, 106 Yale L.J. 1033 (1997). The brief attorney general opinion, in contrast, echoes the same “struggle over the ideology of slavery” within the “microcosm” of the patent office, a minor bureau of the antebellum government. 15 Frye, supra note 4, at 229.

Even as a small-scale story of slavery in the antebellum United States, Invention of a Slave provides a poignant example of the contradictions between humanity and property that challenged and distorted American law in a slave society. 16 For an in-depth discussion of these contradictions, see generally, e.g., Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975); Ariela J. Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (2000); Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (1997). It forces us to acknowledge that the ideology of slavery reached into the technical bureaucracy of the patent office, an area of law and of the administrative state frequently considered outside politics. 17 For challenges to this view, see Shobita Parthasarathy, Patent Politics: Life Forms, Markets, and the Public Interest in the United States and Europe 3–5 (2017); Kara W. Swanson, Intellectual Property and Gender: Reflections on Accomplishments and Methodology, 24 Am. U. J. Gender, Soc. Pol’y & L. 175, 182, 185–86 (2015); Anjali Vats & Deidré A. Keller, Critical Race IP, 36 Cardozo Arts & Ent. L.J. 735, 740 (2018). The dry lines of the opinion expose the breathtaking claim by an enslaver to the mental labor of another person—an ultimate claim of whiteness as intellectual property—and another frontier in the “myriad and nefarious uses of slave property.” 18 Hartman, supra note 16, at 24; Vats & Keller, supra note 17, at 758 (citing Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993)). These features make Invention of a Slave a story worth remembering.

One of history’s projects is the recovery of missing stories. This goal has always been urgently foregrounded in African American history as a corrective to the whitewashed narrative that dominated professionalized history in the United States from its late-nineteenth-century inception. 19 See John Hope Franklin, George Washington Williams and the Beginnings of Afro-American Historiography, 4 Critical Inquiry 657, 658 (1978) (describing disregard for the African American perspective as American history professionalized). For an influential early example of corrective history, see generally W.E. Burghardt Du Bois, Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 (1935). Invention of a Slave, however, has never been a “forgotten” or missing story. 20 In asking legal scholars to consider Invention of a Slave as a remembered opinion, this Essay thus diverges from other important scholarship recovering missing stories and arguing for the significance of forgotten cases. See, e.g., Fran Ansley, Recognizing Race in the American Legal Canon, in Legal Canons, supra note 9, at 238, 241 (calling for the resurrection and construction of counternarratives to challenge the “grand racial silences” of the legal canon); David Fontana, A Case for the Twenty-First Century Constitutional Canon: Schneiderman v. United States, 35 Conn. L. Rev. 35, 37 & n.8 (2002) (arguing for teaching Schneiderman and collecting articles arguing for the recognition of other forgotten cases); Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 Const. Comment. 295, 296–97 (2000) (arguing that Giles v. Harris has constitutional significance); VanderVelde & Subramanian, supra note 14, at 1035 (recounting Harriet Scott’s legal battles as “compensatory” history). For over 150 years, African American activists have remembered and written about the opinion in many venues excluded from our collective legal memory. 21 See, e.g., Frye, supra note 4, at 182 nn.3 & 8, 187 nn.55 & 57 (citing publications discussed throughout this Essay). Their remembering was not casual storytelling but rather deliberate, strategic, and political. Understanding the purpose of their efforts reveals the opinion’s continuing relevance to our collective effort to understand what the law is, how it is working, and how it might be changed in the service of justice. 22 For discussion of my use of “our,” see infra text accompanying notes 159–162. I offer Invention of a Slave as a case study of race and selective legal memory, tracing the color line that demarcates legal memory and the costs of that line. 23 My use of “color line” echoes W.E.B. Du Bois’s use of the term. W.E. Burghardt Du Bois, The Souls of Black Folk: Essays and Sketches, at vii (1903) [hereinafter Du Bois, The Souls of Black Folk].

I begin with my first encounters with Invention of a Slave and its backstory as told in African American “sites of memory.” 24 Vats & Keller, supra note 17, at 768 (citing earlier scholarship drawing upon African American literature as a “site[] of memory”). In including my own stories, I use a frequent methodology of Critical Race Theory. See Khiara M. Bridges, Critical Race Theory: A Primer 15–16 (2019) (narrating the author’s encounter with Critical Race Theory); Storytelling, Counter-Storytelling, and Naming One’s Own Reality, in Critical Race Theory: The Cutting Edge 61, 61–121 (Richard Delgado and Jean Stefancic eds., 3d ed. 2013) (introducing and reprinting examples of Critical Race Theory storytelling); Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411, 2411–15 (1989) (describing the turn to storytelling and its functions in the context of racial reform). I then foreground the nineteenth- and twentieth-century storytellers to understand by whom and in what places the opinion was remembered. With an appreciation of the opinion as a remembered story, I can then ask, why? What were the stakes that drove African American activists and leaders to tell and retell the story of the enslaved inventor and his exclusion from the patent system? I argue that this memory work was performed in support of fights for the “rights of belonging,” the various civil rights that signal and accompany inclusion. 25 Denise C. Morgan & Rebecca E. Zietlow, The New Parity Debate: Congress and Rights of Belonging, 73 U. Cin. L. Rev. 1347, 1348, 1391–93 (2005) (expanding on constitutional law scholar Kenneth Karst’s use of belonging in his work on equal citizenship). Between the formal lines of the opinion, these activists read an unintended message that patents could be political tools used to oppose anti-black racism and racist laws. They mobilized patents as government certifications that their recipients had a prized mental ability, inventiveness, in order to undercut the logic of racism in its shifting guises, including scientific racism, white supremacy, and the pernicious bigotry of low expectations.

This labor resulted in publications that remained on the other side of a color line, excluded from the acknowledged repositories of legal memory. This exclusion has carried costs, as we in law have failed to appreciate and participate in what was always in part a legal effort, even though it occurred outside formal legal publications. These storytellers, by telling one of law’s stories, were seeking legal change. Our legal erasure of both the opinion and storytellers has allowed us to encounter a well-remembered story as “forgotten” and remain blind to its relevance. Acquiring a new perspective transforms Invention of a Slave from an oft-overlooked piece in the vast mosaic of law and slavery in the antebellum United States into part of the post-Emancipation history of race and law—a history characterized by never-ending and always-changing campaigns to fulfill the formal promises of the Reconstruction Amendments to bring African Americans into law and society as citizens. This history has not ended, but rather remains “something that is happening,” 26 Devon W. Carbado & Rachel F. Moran, The Story of Law and American Racial Consciousness: Building a Canon One Case at a Time, 76 UMKC L. Rev. 851, 852 (2008) (noting that “national rhetoric” has been used to keep race “something that happened, not something that is happening”); see also Bridges, supra note 24, at 7 (noting that Critical Race Theory foundationally assumes that “race remains highly significant” in the United States). as we continue to debate what Barbara Welke has memorably called the “borders of belonging,” that is, the contours of citizenship and Americanness as shaped in law and society. 27 Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States 4–13 (2010).

As a case study making law’s color line visible, the history of remembering and forgetting Invention of a Slave exposes the persistent whiteness of both the authors and content of curated legal memory, linking that persistence to the persistence of racial inequality in all aspects of law and society. Recognizing that the costs of that line are being paid in the present is in itself significant, challenging all of us who participate in curating law’s memory. Further, understanding the link among patents, African American inventive ability, and belonging offers opportunities to contribute to the burgeoning project of Critical Race IP to “remak[e]” intellectual property to “heal the wounds of racism” at a time when intellectual property is ever more important in the economy and law. 28 Vats & Keller, supra note 17, at 776–77, 795. I end by reflecting on teaching and researching patent law and policy with the recognition that I do so as a participant in the present-day happening of race and citizenship.