Bonds of Citizenship. Hoang Gia Phan
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slave and the servant as the absent presence of the Constitution. Bonds of Citizenship proposes that this reading thus also makes visible the ways in which the category of the bondsman—the figure for both enslaved and indentured labor—functions as a vanishing mediator, making possible that category of personhood equated with full legal freedom in the new republic, the citizen.
Douglass does not make this point, but surely his “man from another country” would. This reader would notice that the fugitive labor rendition clause is the supplementary clause to the only section of the original Constitution that refers to the “privileges and immunities of citizens” of the United States. The first clause of Article IV, Section 2 reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Nowhere in the original Constitution is the term “citizen” defined.35National citizenship was clearly defined (over and against state citizenship) only after the Civil War, with the passage of the Fourteenth Amendment.36 Yet of all the provisions of the Constitution, Article IV, Section 2 comes closest to delimiting, if not explicitly defining, the term “citizens.”
I say delimiting because even in its narrowest interpretation, the clause recognizes the “citizen” as a figure always-already attached to certain “Privileges and Immunities,” and likewise recognizes the citizens of each state as “entitled” to the privileges and immunities of citizens of all other states.37 By entitling citizens of each state to privileges and immunities of citizens of all other states, this clause inscribes the citizen as a figure of unrestricted mobility, free to roam throughout the states of the new nation without legal disability. In explicit contrast to this new citizen’s freedom of mobility, the second clause of Article IV, Section 2 states: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”38 This fugitive criminal rendition clause is the necessary supplement to the extraterritoriality of the “privileges and immunities” clause. Just as a unified national space is imagined through the extraterritoriality of the state citizen’s “privileges and immunities,” the different legal spaces of the individual states are united through this supplementary provision for the capture and rendition of the fugitive criminal. The movement of this fugitive criminal maps the intersections between the local police powers of the states and the national reach of the federal Constitution.
The fugitive labor rendition clause was proposed as the political-economic supplement to this fugitive criminal rendition clause, which, as we have seen, served to delimit the freedom of the citizen. Indeed, the fugitive labor rendition clause likens escape from labor bondage to a flight “from Justice”: in escaping from their economic bonds, fugitive slaves and servants fled the bonds of law and were, in the words of the authors of the clause, “to be delivered up like criminals.”39 Similarly, what is commonly known as the first federal “fugitive slave” act (of 1793), enacted to give force to the Constitution’s fugitive labor rendition clause, was actually entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters,” and likewise linked to these different types of fugitives.40 As I discuss at greater length in the first three chapters of this study, it is through these supplementary figures—the slave and the servant—that this founding law establishes one of the central categories through which “freedom” would be imagined—and racialized—throughout nineteenth-century American law and literature: “freedom” as free mobility.41
Nor would the “man from another country” ignore the bondsman’s ambiguous forms of appearance in the Constitution’s other “slave clauses,” for there also the figure of the bondsman mediates the legal inscription of the passage from “subject” to “citizen.” Article I, Section 2—the Constitution’s all-important provision for apportionment of representation and taxation—scripts its infamous “three-fifths clause” thus: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.”42 In chapter 1, I elaborate the significance of this negotiation of the “principle of representation” to late-eighteenth and nineteenth-century U.S. racial formations, and to the construction of blackness as “the badge of servitude.” For now, I continue in the tracks of the bondsman as vanishing mediator. Historians are right to remark upon the absence of “black,” “color,” and “race” in the catalogue of this clause’s accounting. The letter of the law, in its calculations for the purposes of representation and taxation, refers to only two types of “persons”: “free persons” and “other persons.”43 While such arguments provide an important critical corrective, they forget another category of persons that adds significantly to our understanding of the relation between the unspoken terms of “race,” “slavery,” and “labor.” Article I, Section 2 attempts a comprehensive survey of the persons then present in the states, even as it resists referring explicitly to racially marked freedom or unfreedom. Supplementing its description of “whole free persons,” the clause adds: “including those bound to service for a term of years”—that is, indentured servants. In the context of the later mobilizations of the concepts of free and unfree labor, indentured servitude and its ambiguous position here between “free persons” and those “other persons” (slaves) become particularly important. While we might agree with David Brion Davis on a structural identity between indentured servant and slave, we should also recognize the difference between them, one important enough to be included as a supplement to the Constitution’s calculus of representation. While indentured servants may be just like slaves in their material living conditions, their social standing, and the experience of corporal punishment, they are also legally different: for the purposes of political representation and direct taxation, indentured servants will be counted as whole persons; those “other persons” will not.44 This third term adds productive problems to familiar critical narratives of slavery, and its various loose synonyms, such as bondage and involuntary servitude. One immediate question, for example, is: Why should they count as whole numbers? Yet this, too, is a misleading construction of the clause. It reads: “the whole number of free persons, including those bound to service for a term of years.”45 The supplementary “including” describes free persons. Which is to say that according to the original Constitution, one could be bound, in a state of labor bondage, and also be “free.” If in the fugitive labor rendition clause the bondsman’s ambiguous legal form of appearance “codified and masked” the history of indentured servitude, here in the apportionment clause the bondsman foregrounds that history, in order to distinguish the nominally “free” personhood of the indentured servant from the unnamed slavery of those “other persons.” The figure of the bondsman thus displaces that binary opposition between “free labor” and the unfreedom of black chattel slavery, one regularly assumed in readings of the Constitution and in histories of citizenship, racial formation, and class formation.
Finally, suppose the “man from another country” were to read the last of the “slavery clauses,” the “migration and importation” clause? At first glance, this clause seems unequivocal in authorizing the continuation of the slave trade until (at least) 1808: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”46 According to The Federalist Papers and other contemporary accounts, the clause was widely recognized as a “compromise” over the foreign slave trade.47 Yet even those who recognized its slavery-sanctioning “original intent” remarked upon the ambiguity of its language and the unintended effects of such ambiguity. Arguing against ratification of the federal constitution, Luther Martin, delegate from Maryland, declared:
The design of this clause is to prevent the general government from prohibiting the importation of slaves; but the same reasons which caused them to