Published Fall 2006
 
The Cultural Work of Literature and the Law
(on W. C. Harris, E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox [Iowa City: U of Iowa P, 2005]; Gregg D. Crane, Race, Citizenship, and Law in American Literature [Cambridge: Cambridge UP, 2002]; and Stephen M. Best, The Fugitive's Properties: Law and the Poetics of Possession [Chicago: U of Chicago P, 2004])
A brief survey of national mottos reveals more than thirty direct references to the notion of "unity," with many countries referring to it by name. Belgium's motto, in French, is L'Union Fait la Force ("The Union is the Strength"). Argentina's reads En Unión y Libertad ("In Union and Liberty"). Indonesia's motto, Bhinneka Tunggal Ika ("Unity In Diversity"), closely resembles the original motto of the United States. In 1776, the U.S. Continental Congress appointed a committee, consisting of Benjamin Franklin, John Adams, and Thomas Jefferson, to create a seal which included our national motto for the newly formed Republic. In 1782 they settled on the familiar image of the American bald eagle with a red, white, and blue shield at its breast, thirteen white stars on a blue field above its head, and, clenched in its beak, a ribbon bearing the words E Pluribus Unum, which translates from Latin as "Out of many, one." Initially the phrase emphasized the Framers' determination to integrate the thirteen independent colonies into one nation, but over time the phrase reflected the effort to establish a unified country from people with diverse backgrounds and beliefs.
W. C. Harris's E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox, Gregg D. Crane's Race, Citizenship, and Law in American Literature, and Stephen M. Best's Fugitive Properties: Law and the Poetics of Possession, all deal in some sense with nineteenth-century literature's attempts to address, critique, redress, or otherwise acknowledge the failures of the country to fully realize E Pluribus Unum. Although each of these studies pursues its own mode of inquiry and employs various methodologies, they all constellate around the Civil War, slavery, and the failed promises of equality. To a greater or lesser extent, each study also contributes to the analysis begun by Robert Ferguson's landmark study, Law and Letters in American Culture (1984), which provided a forceful argument for the close nexus between American law and literature during the early republic and examined the "major writers within that configuration" (7). In Ferguson's words, lawyers comprised a "now-forgotten configuration of law and letters that dominated literary aspirations from the Revolution until the fourth decade of the nineteenth century" (5). According to Ferguson, the eighteenth-century lawyer was "professionally dependent upon a fusion of law and literature" and, in the "absence of more technical guidelines ... found vocational definition in general knowledge and learned experience, in his acceptance of the classical past as a touchstone, in his commitment to public service through the written word" (6). Ferguson argues, among other things, that "the central texts of American republicanism acquire new coherence from a legal aesthetic just beneath the surface," and that "similar lines of force inform early American poetry and fiction," such as the writings of Charles Brockden Brown, Washington Irving, and William Cullen Bryant, who were each shaped, Ferguson asserts, by the legal educations they received (7).
Where Ferguson argues for the law's influence on literature, Harris, Crane, and Best each explore, in their own particular ways, how literature functioned in, or how it sought to influence and participate in, traditionally legal and political realms of discourse in America during the nineteenth century. E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox confronts the problematic nature of the title phrase E Pluribus Unum and writers' responses to it. Race, Citizenship, and Law in American Literature argues for literature's place alongside political and legal documents in helping to shape American culture. Fugitive Properties: Law and the Poetics of Possession explores how nineteenth-century notions of property relating to fugitive slaves created an abstract concept of property which helped to shape contemporary intellectual property law and how certain writers at the time critiqued and problematized these race-based legal formulations. These books analyze the historical inconsistencies and tensions of the American constitutional regime and its promises of unity from diversity.
In E Pluribus Unum: Nineteenth-Century American Literature and the Constitutional Paradox, W. C. Harris lays out a detailed and often dense argument, asserting quite successfully that the phrase E Pluribus Unum presents an inherent contradiction central to the nation's organization and, during the second half of the nineteenth century, presented a profound philosophical problem—the simultaneous desire for unity and diversity—which preoccupied American writers and philosophers of that time. Harris traces the problem back to Plotinus, but the phrase E Pluribus Unum derives from a poem attributed to Virgil. Plotinus' problem, like the problem inherent in American political and social organization, was the difficulty of reconciling the imperative to unity with the heterogeneous character of experience (2). Harris depicts this as an ongoing problem for the young American Republic—one first set out by the Declaration of Independence and then acknowledged and addressed by the framers in each successive founding document, including the Articles of Confederation, the Constitution, and the Bill of Rights. Each functions as a supplementary text, revising, correcting, or omitting passages from their predecessors which "block the full realization of some founding principle," such as the Declaration's proposition that "all men are created equal."
Harris makes one primary claim: Poe, Whitman, Melville, and the philosopher William James, among other writers not specifically treated in this book, addressed the inherent contradiction of the one-and-the-many formation by treating their literary texts as supplementary to the nation's founding political texts. These authors, Harris asserts, viewed their own literary work as "quasi-institutional" or as supplemental to traditionally non-literary (political or theological) texts and took as their model the supplementary role played by the nation's founding political documents. Just as Chief Justice Marshall argued in Marbury v. Madison (1803) that the Supreme Court has the authority to review laws to assess their consistency with the Constitution, so too did certain nineteenth-century authors conduct a sort of "literary review" of the nation's founding political documents by "modeling…alternative social formations on a basis consistent with the terms of the constitutional regime" (4). Poe and Whitman, for instance, were willing to "rescue unity at any cost," while Melville and James found the federalist's model of unity too costly and formed at the expense of diversity. The strength of Harris' argument lies in his convincing close readings of these authors and locating distinctly different approaches to this problem in each one.
Gregg D. Crane's Race, Citizenship, and Law in American Literature explores another fundamental aspect of American democracy, what Crane refers to as "higher law," a phrase loosely defined as American society's belief in universal principles of justice embodied in the U.S. Constitution. Like Harris, Crane argues for literature's place alongside legal and political documents in aspiring to shape American society. But Crane locates a more active and direct link between the cultural work of literature and its effect on the American legal system and society. For Crane, higher law, or "the on-going revision of what we deem are the noblest narratives we can tell of ourselves," has "periodically exerted considerable pressure on the direction of American law" (5).
Crane furnishes a detailed and captivating history of higher law jurisprudence, especially as it existed throughout the 1850s and during Reconstruction, thoroughly contextualizing his theory in an historical and cultural milieu. He locates a pivotal moment for higher law in William H. Seward's address to the Senate on March 11, 1850, when the Senator denied " 'that the Constitution recognizes property in man' " and asserted that " 'the nation's charter must heed a higher law' "(12). Seward, Crane explains, argued that passage of the Fugitive Slave Law would eventually influence the "public conscience"—that is, it would heighten the public's sense of the inherent injustice of the law—and inspire an ethical backlash against and revision of American legal and political systems. The public would heed Seward's call to abide by a "higher law," which would in turn influence by consensus the direction of American law. Crane provides us with an insightful treatment of what he sees as the central characteristics of "higher law," such as the "juxtaposition of identity-neutral norms of political and social coexistence and identitarian practice," a "hallmark" of American higher law constitutionalism (2). American higher law is marked by a consensual creation of basic standards of co-existence for a diverse citizenry—a process which transcends race and other forms of identitarianism—and which is often most pronounced and acute when placed in contrast to laws reflecting identitarian practice, such as those which treat people in accordance with a hierarchical status based on family, race, clan, or tribe. Yet, citing Regents of the University of California v. Bakke (1978), Crane is careful to add that anti-identitarianism should not be confused with the desire to make all law "color blind": identity-neutral fairness and equity may require that the law consider historical racial discrimination to promote greater equity.
Crane persuasively argues for the vital role literature plays in the creation and on-going transformation of "higher law," a flexible and ever-changing consensus. He argues that higher law jurisprudence is cultural in nature, a process reflecting the influence of "poems, biographies, sermons, novels, philosophical tracts, photographs, editorials, or plays," all of which may express it more fully than legal precedent and provide insight into the ethical assumptions "guiding courts and legislatures" (2). Rather than question whether the study of law informs literature or vice versa, Crane looks at their mutual interaction. His central argument is that nineteenth-century advocates, such as Stowe, Emerson, and Douglass, conceived of a higher law jurisprudence which enables people of diverse backgrounds to form or revise through consensus the terms of their social and political coexistence, just as it displaces a notion of law that is based on power, identity, and "racial inheritance." For instance, Crane analyzes the historical background of the various manifestations of higher law jurisprudence in the 1850s, and then considers Harriet Beecher Stowe's attempts to influence the nation's conscience, and thereby create a consensus which would influence higher law jurisprudence, in the wake of the Fugitive Slave Law. Stowe believed, after all, like Crane himself, that literary jurisprudence could lead to "institutional revision" (56).
In Fugitive Properties: Law and the Poetics of Possession, Stephen M. Best considers intersections of law and literature before and after the Civil War with a focus on the early formation of abstract concepts of property developed through legal theorizations of slavery, particularly through the jurisprudence pertaining to the "fugitive" slave, and circulating throughout nineteenth-century works of literature. Best's project is ambitious, attempting to trace connections between intangible, personified, antebellum conceptions of property and such varied cultural forms as blackface minstrelsy, early race films, and contemporary intellectual property law.
Best's book details the development of an animated, abstract, and personified form of property, the creation of which he attributes to "metaphysical" constructions of law intended to account for the property value inherent in the fugitive slave—namely, the right to the slave's labor—but separate from the slave's physical person (3). Best imaginatively traces similar abstract, even metaphysical conceptions of property to eighteenth-century notions of monarchial embodiment—the idea of the king's "two bodies," one personal and natural, the other the body politic—and to legal theorizations of the ontology of the "corporation," an artificial construction and personified form of property with rights and legal obligations. Like the corporate entity, the slave was often denied personhood but was simultaneously subject to laws and legal obligations. At the same time, however, slavery's apologists often argued that ownership of slaves was limited to legal obligations and not to their persons, narrowing, as Best explains, "their claims to property rights in slaves to a claim to their labor, and a right to labor for the most part warranted a further right of obedience" (8).
Wide-ranging and imaginative, Best's study bores its way through a wide variety of disciplines, from silent films to corporate law, but at times the book leaves complex, even arcane, historical and theoretical concepts unexplained, leaving the reader the task of unpacking the jargon and subtle scholarship of the multiple disciplines Best explores. As he acknowledges in his "Debts," his former instructors have often left him "wonderfully disoriented and not quite sure whether [his] text (or [his] thoughts in general) offered a map or the geography in need of mapping" (xi). Unfortunately, at times it is the latter, and Best leaves too much mapping to his readers.
Harris, Crane, and Best offer unique analyses of the tense and paradoxical balance established by the Framers between unity and diversity, by demonstrating how writers attempted to review the young Republic's political and legal inconsistencies, by examining the collective action of individuals to shift national attitudes through consensus, and by locating and critiquing the evolution of legal concepts, both in literary and legal discourses, which influenced race relations. They offer an analysis of how multiple discourses—literary, legal, political, and theological, among others—intersected and influenced one another and American society during the nineteenth century. Although each of these authors focuses their study toward nineteenth-century culture, the challenges of E Pluribus Unum persist today. This year marks the fiftieth anniversary of our current national motto, "In God We Trust," which replaced E Pluribus Unum in 1956, a change established during the Cold War and due at least in part to a reaction against the atheism associated with communist movements. Perhaps it also reflected an attempt to signal solidarity or codify unity through the transcendental rather than the secular. Still, just as numerous countries continue to represent a simultaneous desire for unity and diversity in their national mottos, the United States continues to struggle to define itself according to these conflicting drives, to make a single federated state from individual political units, a unified country from people with diverse backgrounds and beliefs.
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