"Cognitive Dissonance in the Antebellum South about the Lawfulness of S" by Peter K. Westen
 

Document Type

Article

Publication Date

2024

Abstract

The institution of slavery, by its nature, was necessarily grounded in law. For whenever a society adjudges one class of persons as free and another as enslaved, law-like norms must exist to identify and distinguish the free from the enslaved. And whenever a society institutionalizes slavery, law-like norms must exist to establish the privileges and disabilities possessed by masters, by the enslaved, and by third persons in relation to masters and slaves. Such master-slave norms may not always be enforced. But, until societies disavow or disremember them, they constitute standards of right and wrong that master-slave societies profess to embrace.

American slaveholding colonies and states implicitly understood slavery’s dependence on law by adopting comprehensive slave codes, enacting thousands of statutes and issuing thousands of judicial opinions that addressed the rights and duties of slaveholders, slaves, and third persons in relation to masters and slaves. Judicial opinions in particular provide unique insight into master-slave norms because, unlike legislators who can promulgate rules without accompanying justifications, judges are institutionally obliged to justify their rulings by referencing established norms or, at least, endeavoring to do so.

This essay examines a set of antebellum southern judicial opinions in the 1850s that I believe reflect growing cognitive dissonance among southern public officials in general and southern judges in particular about the legitimacy of slavery. The cases involve litigants like Dred Scott—persons who had been slaves by law when they lived in the South, who had moved North with their owners where they were deemed legally free, and who then returned South where their owners successfully reclaimed them as slaves. Southern cognitive dissonance stemmed from southerners’ embracing two norms, whose subjects were all Black—namely, one governing Black slaves who lacked valid claims to freedom under southern law, and another governing Black persons who, regardless of whether they were currently held as slaves, possessed valid claims to freedom under southern law. Southern public officials widely and publicly embraced both norms: they supported Black slavery as institutionalized in the South, yet, they simultaneously supported liberty for Black persons who, though they might be currently held as slaves, had valid claims to freedom under southern law, whether by virtue of (i) deriving their free status from descent from maternal ancestors who, rather than having been lawfully enslaved when giving birth, were rightly free; (ii) manumission; (iii) state-ordered emancipation; or (iv) residence in a free state or territory the laws of which southern states recognized.

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Copyright © 2025 Mississippi Law Journal. Reproduced with permission.


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