Law and Slavery

“Are we MEN!!—I ask you, O my brethren! . . . Are they not dying worms as well as we?” — David Walker.[footnote]David Walker, Walker’s Appeal, in Four Articles 21 (Univ. of N.C. Press 2011) (1830) [hereinafter Walker’s Appeal].[/footnote] Introduction The Stono Rebellion of 1739, one of the largest revolts in colonial America,[footnote]See Daniel C. Littlefield, Echoes of Liberty: Historians, the Stono Rebellion, and the Atlantic World, S.C. Hist. Mag., July 2019, at 186, 186 (“In the twenty-first century, historians regard the Stono Rebellion as the largest, deadliest servile insurrection to have taken place on the mainland of British North America prior to the American Revolution.”).[/footnote] exemplifies the subversive nature of Black protest. Sparked by the brutal conditions faced by enslaved Africans in South Carolina, the revolt temporarily liberated its participants and directly confronted the authority of the slavocracy.[footnote]See id. (noting that the historical treatment of the Stono Rebellion has “shift[ed] away from the effect of imperial influences on the rebels and towards [participants’] own agency”).[/footnote] By asserting their agency against systemic dehumanization, the revolutionaries expanded the boundaries of protest, proving that resistance need not conform to the legal norms of an oppressive order. Their defiance called into question the legitimacy of liberty and democracy as framed by White supremacy, revealing the radical potential embedded in Black protest traditions.[footnote]Resistance is often framed as politically threatening unless it seeks to redeem dominant American values like individualism, limited government, and private property. See Alex Zamalin, Struggle on Their Minds: The Political Thought of African American Resistance 2 (2017) [hereinafter Zamalin, Struggle on Their Minds] (“[F]or many white Americans, black resistance often signifies not political agitation but an unwillingness to accept cultural norms of upstanding citizenship . . . .”). The Stono Rebellion threatened White enslavers’ liberty interests and private property rights, which were viewed as foundational principles of American democracy. See Littlefield, supra note 2, at 187–90 (noting late nineteenth- and early twentieth-century historians’ reduction of the “struggle for liberty among enslaved Africans . . . to a necessary action on the part of slaveholders for containing and controlling an unthinking labor force” as a way of undermining some Stono observers’ recognition of the “enslaved and their enslavers’ kindred humanity”).[/footnote]

The persistence of Black protest throughout the eighteenth century, driven by ongoing oppression, exposed the glaring hypocrisy of American democracy.[footnote]See infra section I.B.[/footnote] The American Revolution—heralded for its ideals of liberty and republican self-governance—was paradoxically built atop the enslavement and subjugation of African people racialized as Black.[footnote]See infra section I.B.[/footnote] This contradiction underscored the radical potential of Black protest traditions to destabilize dominant civic ideals and recast the distorted meaning of political participation. Though the Revolution proclaimed inalienable rights,[footnote]The Declaration of Independence para. 2 (U.S. 1776).[/footnote] the U.S. Constitution enshrined slavery.[footnote]U.S. Const. art. 1, § 2, cl. 3 (counting each enslaved person as three-fifths of a person for purposes of determining states’ congressional representation), repealed by U.S. Const. amend. XIV, § 2.[/footnote] Even more, the Three-Fifths Clause and slave codes denied Black Americans the most basic of freedoms, restricting their movement, assembly, speech, and education.[footnote]Id. For a discussion of slave codes across the United States, see infra text accompanying notes 72–80.[/footnote]

Across generations, Black protest in America has been a continuous assertion of individual and collective agency.[footnote]For stories of Black protest in response to American slavery during and immediately after the Revolution, see Gary B. Nash, Race and Revolution 69–72 (Rowman & Littlefield ed., 2001) (1990) (describing African Americans’ “quest for place and self-definition” after the Revolution and the attempt to create a sense of peoplehood by reconciling “their consciousness of being African and their consciousness of being American”).[/footnote] Enslaved Africans resisted not only through open revolts and flight via the Underground Railroad, but also through intimate acts of defiance—preserving ancestral traditions, practicing forbidden religions, and cultivating cultural memory.[footnote]See id. at 72 (arguing that African Americans maintained their identities by creating “a culture of alternative institutions,” such as independent churches, where they could create a sense of peoplehood beyond the White vision of America (internal quotation marks omitted)); see also John Hope Franklin & Loren Schweninger, Runaway Slaves: Rebels on the Plantation 1, 2–6 (1999) (noting that, in some instances, enslaved persons “demanded concessions, rejected orders, threatened whites, and sometimes reacted with violence”).[/footnote] These acts offered alternative visions of freedom, challenging legal and political structures that silenced Black voices and upheld a liberal republicanism rooted in White supremacy. As Black protest traditions emerged, they directly contested the narrow legal concept of protest inherited from English common law, a tradition that recognized only limited rights to petition the government for grievances.[footnote]See Katherine Hessler, Early Efforts to Suppress Protest: Unwanted Abolitionist Speech, 7 B.U. Pub. Int. L.J. 185, 186 (1998) (noting that in 1836, Congress attempted to “quiet abolitionist dissention and limit their use of petition by passing a gag rule . . . forbidding legislators from discussing or receiving petitions from citizens regarding the issues of slavery and abolition”); see also A Necessary Evil? Slavery and the Debate Over the Constitution 11–12 (John P. Kaminski ed., 1995) (discussing a 1777 petition by a group of Black Americans to the Massachusetts legislature, requesting “the same rights that the colonists were fighting for in their conflict with Great Britain” (emphasis omitted)).[/footnote] Though the right to protest gained prominence during the American colonists’ resistance to British rule and was later enshrined in the Declaration of Independence and the First Amendment,[footnote]See The Declaration of Independence para. 2 (“Governments are instituted among Men, deriving their just powers from the consent of the governed . . . . [W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it . . . .”); see also U.S. Const. amend. I.[/footnote] these protections were unevenly applied, especially in cases involving slavery, abolitionism, and Black protest.[footnote]See, e.g., Nash, supra note 10, at 27 (noting James Madison’s belief that slavery made the Union fragile, particularly in light of South Carolina delegate John Lynch’s alleged ultimatum—given twenty-six days after the Declaration of Independence—that any debate over the issue of enslaved persons as property would be an end of the Confederation).[/footnote]

For example, the Supreme Court’s 1857 decision in Dred Scott v. Sandford denied citizenship to Black people and, with it, the protections of free speech and assembly.[footnote]See 60 U.S. (19 How.) 393, 454 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.[/footnote] Even after emancipation, rulings like United States v. Cruikshank in 1876 eroded federal protections of Black citizens’ rights to assemble, leaving them exposed to racial terrorism and the machinery of White supremacy.[footnote]See United States v. Cruikshank, 92 U.S. 542, 552, 557–59 (1876) (holding that the right of assembly under the First Amendment applies only to the federal government and that the Fourteenth Amendment’s Due Process and Equal Protection Clauses, while offering protection against state governments, did not bind private actors), abrogated in part by De Jonge v. Oregon, 299 U.S. 353 (1937).[/footnote] Thus, while early American law professed to enshrine the right to protest and assemble, it often did so selectively, restricting those rights for non-White Americans to preserve the racial hierarchy. The tensions laid the groundwork for future advocacy, from the civil rights movement to today’s social justice struggles, as Black communities and their allies have labored to reclaim, expand, and redefine the constitutional promise.

Throughout these shifting landscapes, Black protest has remained dynamic, continually evolving in response to both legal reforms and their absence. Resistance has taken many forms, not only through direct action—such as the open defiance of rebellions during the antebellum era[footnote]See Stephanie M.H. Camp, Closer to Freedom: Enslaved Women & Everyday Resistance in the Plantation South 33–116 (2004) (discussing how enslaved women would resist slaveowners’ control by temporarily escaping, attending secret parties, and displaying abolitionist materials); Steven Hahn, A Nation Under Our Feet: Black Political Struggles in the Rural South From Slavery to the Great Migration 57–61, 64–65 (2003) (considering different forms of slave rebellion, including the power of running away, spreading rumors that scared enslavers or energized fellow enslaved people, and joining the Union’s fight against the Confederacy’s rebellion). For a broader history of enslaved people’s manifestations of rebellion, see generally Eugene D. Genovese, From Rebellion to Revolution: Afro-American Slave Revolts in the Making of the New World (Vintage Books ed. 1981) (1979).[/footnote]—but also through the beauty of cultural expressions like music, dance, and storytelling that subverted dominant norms and conjured new worlds.[footnote]See, e.g., Robin D.G. Kelley, Race Rebels: Culture, Politics, and the Black Working Class 168–82 (paperback ed. 1996) (describing “the capacity of cultural politics, particularly for African American urban working-class youth, to both contest dominant meanings ascribed to their experiences and seize spaces for leisure, pleasure, and recuperation”).[/footnote] In the twentieth century, Afrofuturism emerged as a powerful intellectual and artistic tradition, seizing upon the contradictions of American protest to envision alternative Black futures beyond the margins of the law.[footnote]See Mark Bould, The Ships Landed Long Ago: Afrofuturism and Black SF, 34 Sci. Fiction Stud. 177, 178–80 (2007) (critiquing early science fiction works as “avoid[ing] direct engagement with the realities of racialized hierarchies and oppressions” and discussing Afrofuturism’s impact on twentieth-century science fiction).[/footnote] Though the term “Afrofuturism” was not coined until 1993 by Mark Dery,[footnote]See Mark Dery, Black to the Future: Interviews With Samuel R. Delany, Greg Tate, and Tricia Rose, in Flame Wars: The Discourse of Cyberculture 179, 180 (Mark Dery ed., 1994) (“The notion of Afrofuturism gives rise to a troubling antinomy: Can a community whose past has been deliberately rubbed out, and whose energies have subsequently been consumed by the search for legible traces of its history, imagine possible futures?”).[/footnote] its roots stretch far earlier to the prophetic works of David Walker’s 1829 Appeal to the Coloured Citizens of the World , Martin R. Delany’s 1859–1862 serialized novel Blake; or the Huts of America , and Frederick Douglass’s stirring oratory and writings.[footnote]See infra section II.B.[/footnote] These thinkers did more than critique slavery and racism: They also imagined futures for Black Americans anchored in alternative legal and political theories of liberty, dignity, and self-determination—laying the intellectual groundwork for modern Afrofuturism.

Twentieth-century figures like Sun Ra, Octavia Butler, and Samuel R. Delany expanded this lineage through speculative fiction and sonic experimentation, challenging the rigid legal and social systems that have long sought to constrain Black cultural expression and the right to peaceful assembly.[footnote]See Dery, supra note 20, at 736, 738.[/footnote] Their works envisioned worlds where systemic oppression had been dismantled, creating stark contrasts to prevailing realities.[footnote]See, e.g., Octavia E. Butler, Kindred (Beacon Press 2003) (1979) (narrating the story of an African American woman who is transported in time from 1976 Los Angeles to a nineteenth-century plantation in Maryland, where she meets her ancestors).[/footnote] In so doing, these Afrofuturist visions illuminated the chasm between the ideal of American freedom and the lived experiences of Black Americans,[footnote]See, e.g., I. Bennett Capers, Afrofuturism and the Law: A Manifesto 112 Geo. L.J. 1361, 1369–72 (2024) (arguing that legal scholars often “fall short of imagining the ideal” and that the Afrofuturist legal scholar should imagine the ideal, “just as they should imagine how future technologies might contribute to a more egalitarian world,” while also recognizing that “current inequities are only fully intelligible through past inequities”); Jon-Christian Suggs, African American Literature and the Law, 43 Stud. L., Pol. & Soc’y 153, 154 (2008) (“[Afrofuturist literature] has as its central concern matters of American law . . . . [U]sing lenses ground of African American narrative[,] a reader can begin to see the outlines of an alternative text of American legal history.”).[/footnote] often turning the very constitutional tools once denied to them into instruments of radical critique and social transformation. In his searing reflections, James Baldwin framed Black rage as a profoundly human response to racial violence and systemic betrayal—a moral force capable of exposing the nation’s contradictions and demanding accountability for its unfulfilled democratic promises. Through literature, music, and visual art, Afrofuturists crafted intellectual sanctuaries and insurgent platforms for Black political thought, transcending traditional frameworks and leveraging the power of free speech to summon futures unbounded by oppression.[footnote]See Alex Zamalin, Black Utopia: The History of an Idea From Black Nationalism to Afrofuturism 10–12 (2019) (“[B]lack utopians needed to seize a space of imagination from which they were barred and imagine a new humanity from which they were excluded.”).[/footnote]

Through an exploration of the Afrofuturist literary tradition, this Symposium Piece argues that Black protest movements are not merely expressions of civil unrest—they are critical sites of political theory and legal imagination, challenging and enriching the very concept of democracy. While mid-twentieth-century historians like Louis Hartz and Richard Hofstadter posited a liberal consensus as the foundation of American political life,[footnote]See Louis Hartz, The Liberal Tradition in America 58 (2d ed. 1991) (arguing that, from its founding, the United States has been a society in which the liberal tradition has been “one of the most powerful absolutisms in the world”); see also Richard Hofstadter, The American Political Tradition and the Men Who Made It, at vii (1948) (referring to “the rudderless and demoralized state of American liberalism” following Franklin D. Roosevelt’s death).[/footnote] Black thinkers were revising core American principles, exposing how White supremacy subverted both Black dignity and freedom.[footnote]See, e.g., Danielle S. Allen, Talking to Strangers: Anxieties of Citizenship Since Brown v. Board of Education , at xx (2004) (“The forms of citizenship I advocate here tend to support some forms of liberalism more than others[,] . . . but in general these forms straightforwardly complement institutional politics based on equal human dignity and the protection of the liberty of citizens.”); James Baldwin, Many Thousands Gone, in James Baldwin: Collected Essays 19, 33–34 (1998) (noting that, at the end of Native Son , those in the courtroom do not want to forgive Bigger and he does not want to forgive them because “[i]t is . . . only death which will allow him a kind of dignity or even . . . a kind of beauty”); Eddie S. Glaude Jr., In a Shade of Blue: Pragmatism and the Politics of Black America 120 (2007) (“Demands for recognition in light of state-sanctioned apartheid might take the form of broad-based claims to American citizenship or they may take the form of racial pride, insofar as that pride affirms the dignity and humanity of an otherwise degraded people.”); Tommie Shelby, We Who Are Dark: The Philosophical Foundations of Black Solidarity 111 (paperback ed. 2007) (“Black Power was meant to be a direct challenge to white privilege, to white paternalism, to white power.”); Jack Turner, Awakening to Race: Individualism and Social Consciousness in America 1–13 (2012) (reconstructing democratic individualism in America, arguing that Ralph Waldo Emerson, Henry David Thoreau, Frederick Douglass, Ralph Ellison, and James Baldwin show that personal responsibility entails rejecting complicity in injustice and actively opposing its conditions); infra sections III.C.1–.2.[/footnote] In this way, Black protest traditions not only reflect the centrality of individual agency to freedom, they also clarify the necessity of direct actions—whether whispered in spirituals or shouted in the streets—in fostering a robust practice of democratic citizenship.

This Piece explores the intersection of Black protest traditions, legal theories of speech and assembly across U.S. history, and the speculative insights of Afrofuturist thought to articulate a Black radical conception of the law of protest. By examining historical instances of Black resistance, from slavery revolts to contemporary movements, and analyzing them through an Afrofuturist lens, this Piece reveals three core dimensions of Black protest: It is (1) an act of subversion—the disruption of the authority of dominant legal and political systems—that is (2) triggered by perversion—the distortion of foundational principles undergirding the political system—and (3) oriented toward revolution—the imagining and creation of alternative social and political systems, shaped by a renewed vision of justice rooted in the lived experiences of the oppressed.

While this Piece is grounded in legal and political discourse, it adopts a broader lens. Black Americans have often resisted outside the formal spaces of electoral politics and legislative reform, precisely because the same structural inequities that degrade social and economic equality also erode political inclusion. Movements within the Black radical tradition have long reimagined central political concepts such as citizenship, liberalism, and civic republicanism, while also calling for the abolition of institutions born of slavery and sustained by racial domination. These ideas have often found their most powerful expression in art—through poetry, fiction, music, and film—demonstrating the critical utility of Afrofuturism in rethinking protest law.

This Piece proceeds as follows: Part I traces the historical terrain of Black protest and the contested boundaries of civility, beginning with slavery revolts and resistance movements and the legal architecture designed to suppress them. It lays bare the central paradox of the American Revolution—a fight for liberty built atop the edifice of bondage—and shows how this contradiction not only informed legal justifications for slavery but also sowed the seeds of rebellion. This Part concludes with the Reconstruction era, showing how Black Codes and newly erected legal barriers to freedom spurred new forms of protest and community solidarity.

Next, Part II turns to the philosophical foundations of Black protest, anchoring them in the revolutionary promise of the Declaration of Independence and its radical reinterpretation by Black activists. Drawing on Frederick Douglass’s vision of protest as a form of dignity, it introduces the intertwined concepts of the right to speak and the duty to resist. Through the lives and legacies of Sojourner Truth and Harriet Tubman—and through seminal texts like David Walker’s Appeal and Martin R. Delany’s Blake —this Part reveals how Black protest has always been a site of political theory, contesting dominant narratives and envisioning emancipatory futures.

Finally, Part III maps the evolution of the Black radical tradition, illuminating how the promises of the Reconstruction Amendments expanded the possibilities for resistance. It examines how Black communities responded to post-Reconstruction oppression through intellectual resistance, labor activism, and grassroots organizing. Figures like James Baldwin, Martin Luther King, Jr., and Malcolm X take center stage, alongside movements such as the Black Panther Party and the urban uprisings of the 1960s. This Part also considers how these protest traditions continue to reverberate in contemporary activism—from Black Lives Matter to student-led mobilizations—and how they intersect with global justice movements, including protests responding to the Israeli–Palestinian conflict. Together, they reveal the enduring moral imperative of Black protest traditions.

Through its interdisciplinary approach—blending legal analysis, historical research, and literary criticism—this Piece illuminates the rich interplay between Black protest traditions, Afrofuturist imagination, and the evolving contours of U.S. law. It shows how Black activists have persistently challenged and reimagined the scaffolding of American democracy, offering alternative visions of law and political economy shaped by the lived experiences of the oppressed. Revisiting the history of Black protest enriches contemporary debates about speech, assembly, and civic resistance. Even more, by uncovering a distinctly Black radical conception of the law of protest, this Piece affirms protest not simply as a constitutional right but as a duty—a moral imperative to transform the present and claim a future grounded in justice, dignity, and collective liberation.

Law and Slavery

AFROFUTURISM IN PROTEST: DISSENT AND REVOLUTION

RACE AND SELECTIVE LEGAL MEMORY: REFLECTIONS ON INVENTION OF A SLAVE