From the three-fifths clause and the Mason-Dixon Line to the doctrines of mixed character and separate-but-equal, the legal apparatus of slavery and anti-Black racism in the United States is infamous for its coldly formalist logic. Indeed, the formalism of the first civil rights movement has been obscured by a tendency to ascribe this approach exclusively to its political opponents. This chapter draws on recent reassessments of form in legal and literary studies to illuminate the Black formalist tradition of the long nineteenth century. In particular, I examine how authors (David Walker, Frederick Douglass, and Charles Chesnutt) and litigants (Harriet and Dred Scott) wielded the ancient legal-cultural form of the person to detach certain classes of person (slave, freeman, sailor, citizen, wife, mother, daughter) from racialized human groups (“colored,” white). By contrast, I demonstrate, white supremacists such as Thomas Jefferson and Chief Justice Roger B. Taney sought to naturalize, humanize, and racialize the persons known as “slave” and “citizen.” As the Thirteenth and Fourteenth Amendments attest, early civil rights activists transformed legal personhood in the United States by insisting on the abolition of one class of person (slave) and the reconstitution of another (citizen).

This chapter examines Wright’s critical appropriation of the Chicago Tribune’s coverage of the Robert Nixon murder trial (1938-39). Although Nixon was tried and executed for murdering Florence Johnson (a white woman), the Tribune routinely – and groundlessly – called the Black teenager a “rapist.” As Wright reminds us, if fascination with the condemned African American criminal dates back to the Puritan gallows ritual, the trope of the “Black beast rapist” evokes lynching in the post-Reconstruction South. With Native Son’s pointed revisions of the Tribune’s racist coverage, Wright exposes the press as the conduit by which the extrajudicial violence and dehumanizing rhetoric of the lynch mob entered the Northern courtroom.

In 1851, Frederick Douglass publicly challenged the position of William Lloyd Garrison and the American Anti-Slavery Society that the U.S. Constitution was a proslavery document. As an enslaved child, the self-taught Douglass had identified literacy as “the pathway from slavery to freedom.” The same insight prompted the mature author and editor to part ways with Garrisonian moral suasionists in order to join “legal suasionists” like antislavery constitutionalist lawyers Lysander Spooner and William Goodell. From the 1840s through the 1890s, Douglass promoted the legal literacy of everyday African Americans (free and enslaved) while developing his own legal-critical analysis of American racism. Committed to wielding the “forms of law and . . . rules of hermeneutics” on behalf of freedom and equality, Douglass tirelessly challenged the increasingly biopolitical orientation of post-Reconstruction legislation and jurisprudence. From slavery to mass incarceration, Douglass insisted, racism is incompatible with the rule of law.