Substantive Jurisprudence: Lochner to Plessy

Beginning with the Slaughterhouse Cases of 1873^[68] and moving with increasing speed and unanimity thereafter, the Supreme Court worked out a "substantive" interpretation of the Fourteenth Amendment, which in the succeeding decades would be regularly used to challenge federal and state regulations, subjecting them to judicial review. In Allgeyer v. Louisiana (1897), in the now notorious Lochner v. New York (1905), and in a host of other cases, including Adair v. United States (1908), Coppage v. Kansas (1915), and Adkins v. Children's Hospital (1923), the Court struck down laws that prohibited "yellow dog" contracts and laws that established minimum wages and maximum hours. Such laws were unconstitutional, the Court explained, because they were a "palpable invasion of rights secured by the fundamental law"—especially the "rights of private property" and the "right of free contract."^[69] It is this substantive jurisprudence—this insistence on substantive rights, especially the right to contract—which transformed the Fourteenth Amendment from a guarantee of civil rights into the centerpiece of laissez-faire constitutionalism.^[70]

The period between 1897 and 1937,^[71] known to legal historians as "the Lochner era," might also be called the era of the substantive, during which a particular set of rights would come to appear as solid, as self-evident, and as objective as things, as if they literally had materialized into moral furniture. Although this substantive jurisprudence might seem directly contrary to the weightlessness of moral subjectivism, we should not forget that the substantive is itself a judicial designation, itself a form of attribution, proceeding from an epistemology which, even as it names as "substantive" that which is accorded evidentiary weight, must consign to insubstantiality that which is not.

After all, when the Court struck down a New York statute setting a ten-hour daily maximum for bakers, on the ground that it violated the "right of free contract," it was discounting the bakers' demand for physical and mental well-being.^[72] And when it struck down a District of Columbia law setting minimum wages for women, on the similar ground that it violated "the right to contract about one's affairs [which] is a part of the liberty of the individual," it was discounting the women workers' demand for satisfactory pay.^[73]

Within the Court's epistemology—not only adjudicating but also affixing reality—the distinction between the "substantive" and the "subjective" was nothing if not self-evident. Dissenting from that epistemology, however, we might point out that the distinction here was only a kind of semantic effect, the effect, that is, of a particular evidentiary grammar, a particular form of judicial designation, which as the very basis for its verdict must assign to the winning and losing sides two discretely opposing names: solid facts versus shaky perceptions, utter validity versus utter groundlessness. Like the language of rights which is its natural language, substantive jurisprudence selectively endorses the world, selectively credits and discredits, emptying out the claim of its opponent in order to give itself full validity, conceding to its opponent no shred of evidence in order to equate itself with the sum total of Truth. In its epistemological absolutism, its impulse always to spell its name as the name of Reason, substantive jurisprudence must stand as one of the most troubling episodes in the history of moral subjectivism. It is certainly one of the most troubling episodes in the history of rights, a history marked not only by moral certitudes but equally by moral erasures.^[74] With Roberto Unger, then, we might say that "substantive justice is the political equivalent of the morality of desire,"^[75] the former being not so much a check to the latter as a mirror of it; for within the adversarial language of rights, the substantive is the requisite name for the triumphantly subjective, the requisite name for the claim that has won out, that has beaten its opponent into insubstantiality.

The intense subjectivism in such a novel as The Awakening , then, is not so much an isolated phenomenon as a cultural disposition, not so much a challenge to substantive jurisprudence as a dramatization of its epistemology. Of course, within the pages of the novel, the embodiment of subjectivism is eventually destroyed—surely a nontrivial detail when we ponder the relation between law and literature, their

concurrence as well as their dissonance. In any case, it is perhaps unavoidable that the novel should share with the law a common language, the language of rights, which, in the novel no less than in the law, must make and unmake the world, crystallize and nullify reality. It is within this context that we might take stock of the "groundless" claims of a figure like Mr. Pontellier. Also within this context, we should perhaps take stock as well of another character, whose claims are still more groundless than Edna's husband's. This is the children's quadroon nurse: "a huge encumbrance, only good to button up waists and panties and to brush and part hair; since it seemed to be a law of society that hair must be parted and brushed" (10).

Here the quadroon is not so much an actual person as an abstract device, seen strictly from the standpoint of the children, the targets of that device. She is "a huge encumbrance," a fixture and a nuisance, though also grudgingly a utility of sorts, good for tidying up one's appearance. In that capacity, as the mechanism by which hair is parted and brushed, she is presented, moreover, as an agent of the "law of society." It is inconceivable that any antebellum quadroon would have been portrayed in such a light or within such a cluster of associations. The quadroon is, after all, the quintessential (as well as most glamorous) victim of slavery, and, through the popularizing efforts of authors like Lydia Maria Child, Henry Wadsworth Longfellow, and, of course, Harriet Beecher Stowe, this tragic figure has long been seen not as an agent of the "law of society" but as a human challenge to that "law."

Even in postbellum literature, especially in literature about Creole life, the quadroon remains a significant presence: at once fascinating, enigmatic, and treacherous. Lafcadio Hearn, for example, devotes one of his "Creole Sketches" to quadroon servants, who, according to him, are "absolutely heartless, without a particle of affection or real respect for an employer or his children, yet simulating love and respect so well that no possible fault can be found with them." Such servants "see everything, and hear everything, and say nothing." "They can tell a lie with the prettiest grace imaginable, or tell a truth in such a manner that it appears to be a lie." Not surprisingly, they are "dangerous enemies—and there is no denying that their enmity is to be dreaded."^[76] George Washington Cable similarly dwells on two quadroon characters in his 1879 novel, The Grandissimes . One of these is the black Honoré Grandissime, who bears the same name as the

white hero of the story, and the other one is the slave woman Palmyre, whose "concealed cunning" and "noiseless but visible strength of will" sometimes "startled the beholder like an unexpected drawing out of a jewelled sword."^[77]

Clearly, what intrigues both Hearn and Cable is the opaque subjectivity of the quadroons: not so much their proven capacity for mischief as their unknown potential. At once highly developed and highly illegible, their fascination is simultaneously their threat. The quadroon in The Awakening , by contrast, is neither fascinating nor threatening.^[78] Indeed, in being so unremarkable and so much taken for granted, she might even be said to have inaugurated an entirely new chapter in the career of this well-worn literary type. She is still advertised as a quadroon, of course, and in fact is never referred to by any other term. The repetition of the word, however, inscribes her not as a racial but as a textual phenomenon: she enters the scene routinely only as part of a compositional tableau. She is either heard as background noise (a "pursuing voice . . . lifted in mild protest and entreaty" [66]) or seen as background commotion ("little quick steps" following the children [70]). And in both cases, the spatial mapping of her person is such as to put her at once in sight but out of focus, within earshot but out of our range of attention. Like the lady in black and the pair of young lovers, who are not so much characters as a kind of human stage prop, the quadroon too seems to have no life other than what we might call a compositional life.^[79] It is almost as if her center of gravity were somewhere else, as if her natural habitat were a different sort of narrative, whose ghostly lineaments here mark both its separateness and its irrelevance. Unlike Mr. Pontellier, whose subjectivity is accommodated but discredited, the quadroon's subjectivity is unaccommodated and immaterial.^[80]

An uneven mapping—a deliberate play of light and shadows—makes subjectivity in The Awakening a highly composed phenomenon, which is to say, highly centralized, highly circumscribed, and highly differentiated. The quadroon's "off-centeredness" complements the centered subjectivity that is Edna's. She complements Mr. Pontellier as well, whose subjectivity, though admitted into the narrative, is nonetheless not accorded any evidentiary weight. The fate of these two characters bespeaks the fate of humanity itself in a world organized into substantive claims and groundless claims, a world in which each and every one, living by the light of his or her reason,

must try to blot out the light of others. And so Mr. Pontellier turns out not to be the only one (and certainly not the best-known one) whose subjectivity is rendered shadowy after a due weighing of evidence. Indeed, on May 18, 1896, just three years before his fictive case in The Awakening was thrown out of court, so to speak, a real case was thrown out of a real court—and on the same ground, that of fallible subjectivity.

I am being coy here, so let me hasten to add that the case I have in mind is Plessy v. Ferguson , a case that, as we know, has to do with racial accommodation and discrimination in railroad cars. I would like to argue, however, that it also has to do with the crediting and discrediting of evidentiary authority, the making and unmaking of moral subjects, and thus the granting and withholding of the title of "reason." Not altogether accidentally, Plessy v. Ferguson , like The Awakening , also unfolded in New Orleans, a city with a prosperous black middle class as well as a long history of racial discrimination.^[81] In 1860, for example, a segregated streetcar system was established in New Orleans, blacks being allowed only in cars marked with a star. After the Civil War, white supremacy was maintained by the Black Codes, the 1866 New Orleans riot, and the 1876 Battle of Liberty Place (in which Oscar Chopin, Kate's husband, took part as a member of the White League).^[82] In 1890 the Louisiana legislature passed a Jim Crow railroad car bill. It was this segregation law that Homer Plessy set out to challenge when, on June 7, 1892, he took a seat in a white coach. He was arrested and bound over to the Criminal District Court for the Parish of Orleans, where Judge John H. Ferguson ruled against him. That decision was upheld by the state supreme court, and, upon appeal to the United States Supreme Court, it was similarly upheld on May 18, 1896, with a single dissenting vote from Justice John Marshall Harlan.

The Plessy case, long considered pivotal (and infamous) by legal historians, has recently also attracted the attention of literary critics, who see it as a dramatic example of the binary construction of race.^[83] Enlarging upon these readings, I want to suggest that Plessy has to do, still more broadly, with the binary construction of moral subjects—labeling them as either "reasonable" or "subjective," "having rights" or "not having rights"—in one of the most extreme attempts to make the language of rights commensurate with the world, and commensurate with a putatively discrete, putatively unified canon of reason.

Indeed, it is the appeal to this canon of reason that enabled the Court majority to interpret the establishment of Jim Crow cars not as a constitutional violation of the Fourteenth Amendment but as a local "police measure," the reasonableness of which was to be decided by the state legislature and the reasonableness of which the Court was quite ready to affirm:

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the races is unreasonable.^[84]

Such a claim of reason should alert us, if nothing else, to its constitutive abuse. It should remind us of the danger (as alive today as it was one hundred years ago) of any conception of reason that imagines its object to be integral and undivided, any conception of reason that takes self-evidence to be its predicate and "unreason" to be its partner.

In the immediate case of Plessy , since "reasonableness" was to be defined with reference to "established usages, customs and traditions"—and since the Court had also made it clear that no reasonable laws would "conflict with the general sentiment of the community"^[85] —it was not surprising that the community in question should lose no time in making its sentiment heard. The New Orleans Times-Democrat summed it up: "A man that would be horrified at the idea of his wife or daughter seated by the side of a burly negro in the parlor of a hotel or at a restaurant cannot see her occupying a crowded seat in a car next to a negro without the same feeling of disgust."^[86] It was this feeling of disgust that the Court deferred to. According moral authority to the private judgment of its citizens, it must also—by the very terms of its epistemology—generalize that judgment from a particular view into a universal view, generalizing it, in effect, into an objective reason, a judicial reason. Jim Crow laws were not unreasonable because the community had endowed them with the light of its own reason, a reason the Court adopted as its own.

In the semantic universe of Plessy v. Ferguson , "reason" turned out to be the judicial name for that "feeling of disgust" that had triumphed, a feeling that was no longer called a feeling now, no longer seen as subjective. But even as the Court sided with one feeling, giving it the dignified name of "reason" and giving it the legal right to keep segregated cars, it must turn the opposing claim into a non-claim, a "mere" sentiment with no objective ground beneath it. Here as elsewhere, selective discrediting is the necessary complement to the granting of an absolute right, the crediting of an absolute reason, and so in Plessy , too, we will find not only a subjectivity that is honored but also one that is dismissed, as we can see in the penultimate paragraph of the ruling:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.^[87]

In the opinion of Justice Henry Billings Brown (who wrote for the Court majority), Jim Crow cars are not really discriminatory. There is no good "reason" why one should feel discriminated against. But if one does, it is only because one chooses to put a subjective "construction" upon something that is actually quite neutral. Subjectivity, in this usage, is clearly not something one would want to confess to, but something one must try to uncover in others. Within this attributive grammar, subjectivity is not only itself stripped of any evidentiary weight, but in its newly acquired hollowness it would also become a highly serviceable, highly absorbent category, something like a cognitive black hole, by which another concept—the concept of "injury"—is further dissolved, further relieved of any substantive contents.

Injury here turns out to be a matter of one's private perception, not "anything found in the act" but existing only in the eye of the beholder. The eye of the beholder is a sphere surprisingly commodious, and indeed surprisingly accommodating, but what it accommodates it also discredits. What Plessy v. Ferguson upholds, then, is not just separate accommodations for blacks and whites in railroad cars, but also separate accommodations (and separate legal designations) for two versions of the subjective. In this landmark Supreme Court rul-

ing, the crisis of subjectivity that had afflicted the nation for over half a century was finally brought to an end, finally recomposed into a more perfect union, a union of subjects no longer subjective, just plain reasonable.

For those left out of that union, those who perversely clung to their own view of things, the Court also had a handy epithet. Still, in putting the subjective to such good use, in deriving from its alleged groundlessness an entire provision for dismissibility, Plessy v. Ferguson might be doing no more than putting a legal mandate on what had long been established as a social practice. It is worth noting that as early as 1867, thirty years before the Plessy decision, New Orleans newspaper editorials were already availing themselves of the category of the subjective, which they also used as the ground for dismissal, the ground on which to squelch any protest against the city's segregated "star cars":

Touching the question of conveyance in the city railroad cars, the negroes have no well grounded cause of complaint. A sufficient number of cars have been set apart for their accommodation, and between the star cars and the others there are no distinctions in make or general appearance. How is it then that they clamor for shadows when their substantial rights are already granted? Simply, because vindictive and avaricious adventurers have poured the leprous distilment of dissatisfaction into their ears, and they are ready to do what in their sober moments they would themselves condemn. What real difference can it make to a negro whether he rides in a car ornamented by a star, or one which is not thus ornamented?^[88]

In a language worthy of Lochner , the New Orleans Times also claimed to know something about "substantial rights" and "real difference." It knew, for a fact, that there were no objective distinctions between the regular cars and the star cars and that, if anything, the latter were somewhat better ornamented. Any black protest against the star cars must be a mere "clamor[ing] for shadows": utterly preposterous and utterly groundless, something no "sober" person would ever do. If this contrary designation of substance and shadow, reason and unreason, seemed almost ritualistic, perhaps it was also a necessary ritual, necessary to an epistemology that, ceaselessly trying to solidify its own claim, must ceaselessly trump the rest of the world into groundlessness.