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Race, the Rule of Law, and the Merchant of Venice: From Slavery to Citizenship

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Notre Dame Journal of Law, Ethics & Public Policy Volume 11 Issue 1 Symposium on Race and the Law Article 13 April 2014 Race, the Rule of Law, and the Merchant of Venice: From Slavery to Citizenship Ken
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Notre Dame Journal of Law, Ethics & Public Policy Volume 11 Issue 1 Symposium on Race and the Law Article 13 April 2014 Race, the Rule of Law, and the Merchant of Venice: From Slavery to Citizenship Ken Masugi Follow this and additional works at: Recommended Citation Ken Masugi, Race, the Rule of Law, and the Merchant of Venice: From Slavery to Citizenship, 11 Notre Dame J.L. Ethics & Pub. Pol'y 197 (1997). Available at: This Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact RACE, THE RULE OF LAW, AND THE MERCHANT OF VENICE FROM SLAVERY TO CITIZENSHIP KEN MASUGI* From the first appearance of man upon the earth, down to very recent times, the words strange and enemy were quite or almos, synonymous. Long after civilized nations had defined robbery and murder as high crimes, and had affixed severe punishments to them, when practiced among and upon their own people respectively, it was deemed no offence, but even meritorious, to rob, and murder, and enslave strangers, whether as nations or as individuals. Even yet, this has not totally disappeared. The man of the highest moral cultivation, in spite of all which abstract principle can do, likes him whom he does know, much better than him whom he does not know. To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals is one of the highest functions of civilization. 1 After seeing Booth as Shylock, [Lincoln] commended the performance, but said that he would rather read it at home. A farce, or a comedy is best played; but a tragedy is best read at home. It didn't make any difference to him, he added, how Shakespeare was played as with him the thought suffices. 2 Abraham Lincoln's career is an almost eerie display of Shakespearean grandeur and pathos. Following numerous other * Visiting Professor of Political Science, United States Air Force Academy ( ). Senior -Fellow, John M. Ashbrook Center, Ashland University, Ashland, Ohio. Senior Fellow, The Claremont Institute. Former special assistant to Chairman Clarence Thomas, U.S. Equal Employment Opportunity Commission, I greatly appreciate the opportunity to present an earlier version of this paper at a talk at Notre Dame Law School sponsored by the ThomasJ. White Center. I also thank the Departments of Political Science, and Philosophy and Fine Arts of the U.S. Air Force Academy for allowing me to present drafts to colloquia they organized. Finally, I thank the Editors of the Journal for their valuable comments on earlier versions of this paper. 1. Abraham Lincoln, Address before the Wisconsin State Agricultural Society (Sept. 30,1859), in 3 Tm COLLECTED WORKS OF ABRAHAM LINooLN 471, (Roy G. Basler ed., 1953) [hereinafter CoLI cred WORKS OF LINCOLN]. 2. ALFRED VAN RENSSELAER WESTFALL, AMERICAN SHAmEAREAN CamrciM: (1939). 198 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 11 observers on this theme, historian Don Fehrenbacher observes: To some indeterminable extent and in some intuitive way, Lincoln seems to have assimilated the substance of the plays into his own experience and deepening sense of tragedy. ' Lincoln's odd characterization of a popular comedy, The Merchant of Venice, as a tragedy is particularly telling. For the Merchant is a happy tale that, however, conceals an horrific conclusion intended, as I will argue here, to educate the audience to the terrifying potential of the new, emerging cosmopolitan world. 4 To use the imagery of the play, the Merchant is a golden casket which conceals a death's head.' Lincoln saw too that America might continue on in a seemingly happy way yet contain within itself the seeds of its downfall by legitimizing slavery. Lincoln's struggle against slavery was very much an attempt, perhaps a tragic one, to make America the earthly comedy it promised to be at its founding, the first nation based on universal premises, the self-evident truth of human equality. The American comedy might be as near to perfection as any human institution ever approximated 6 -that is, America might be judged by the ancient standards of the best regime. These were the standards of Lincoln, of Shakespeare, and of classical political philosophers such as Aristotle: Human equality requires the rule of law, which is necessarily (and incidentally) color-blind. The success of the American experiment, necessarily involving this most vexing question, requires citizens' continuing appreciation of its theory and practice. And that understanding calls for those highest standards of the teachers of the West, which we seek to bring forth here. But our immediate subject is race and the law. How should the two be related? My argument here will be that the emphasis American law has given to race has obscured the origins and enduring significance of the American dilemma-namely in the nature of republican, constitutional government, which in turn rests on natural rights.' 3. DON E. FEHRENBACHER, LINcoLN IN TExT AND CoNTExT 157, 158 (1987). Other sources for Lincoln's fascination with Shakespeare-even during the Civil War--can be found in this essay. Id. at For a brief synopsis of the play, see infra text accompanying notes Barbara Tovey, The Golden Caske, in SHAKESPEARE As PoLmcAL THINxER 215 (John Alvis & Thomas G. West eds., 1981). The golden casket is one that deceives the suitors who must guess the container of Portia's image; it contains a death's head, a skull. 6. Letter from George Washington to James Madison (May 20, 1792), in GEORGE WASHINGTON: A COLLECTION 567, 569 (W.B. Allen ed., 1988). 7. As a correction of Alexis de Tocqueville's famous, pessimistic treatment of race in Democracy in America, one should consider his slighting of 1997] RACE, THE RULE OF LAW, AND THE MERCHANT OF VENICE 199 America is essentially a dream... The substance of the dream is expressed in these sublime words, words lifted to cosmic proportions: We hold these truths to be self-evident, that all men are created equal.... Ever since the Founding Fathers of our nation dreamed this noble dream, America has been something of a schizophrenic personality, tragically divided against herself. 8 As recently as Martin Luther King, black Americans were insistent on binding the civil rights cause to this Nation's founding principles and the political philosophers of the West from whom they were derived. 9 The American commitment to equality is to somehow make race, to some degree or other, against all previous political experience, irrelevant legally and politically. 10 The commitment to race-neutrality is reflected in the wording of the U.S. Constitution itself, which, until the Fifteenth Amendment, never made mention of race. 1 ' Moreover, the American proposition- all men are created equal -makes religion, military prowess, physinatural rights and hence principled statesmanship in dealing with this issue. ALEXIS DE TocQuEvIu.E, DFmoca Acy IN AMiERIcA (J.P. Mayer ed. & George Lawrence trans., Anchor Books 1969) (1835). Tocqueville thought that a race war was inevitable, and that the only way out of the racial divide was a third race formed through intermarriage. Tocqueville slights the natural rights origins of America; instead he sees America developing from a general historical movement toward equality. Hence he can omit any mention of the Declaration of Independence as a principled origin of this polity. See Ken Masugi, Citizens and Races: Natural Rights Versus Histwy, in TocQuEvnILE's DEFENSE OF HumAN Lmaari 321 (Peter Augustine Lawler & Joseph Alulis eds., 1993). 8. Martin Luther King, The American Dream, in A TsrAmrr OF HOPE 208 (James M. Washington ed., 1986) [hereinafter TESTAMENT OF HOPE]. 9. On the evening before his assassination, King spoke of seeing, in a dream, Plato, Aristotle, Socrates, Euripides, and Aristophanes assembled around the Parthenon as they discussed the great and eternal issues of reality. Martin Luther King, I See the Promised Land, in TESTAMErNT OF HOPE, supra note 8, at 279. In his famous Letter from Birmingham Jail, he cites Saint Thomas Aquinas tojustify civil disobedience. Martin Luther King, Letter from Birmingham Jail, in TEsTAmENT OF HOPE, supra note 8, at 293. Contrast this King natural rights view with the historicist understanding of Lani Guinier. See LANI GUINIER, THE TYRANNY OF TiHE MAJORrY (1994). 10. I do not dwell on the obvious fact that if blacks were not present in America, there would be no whites -who would instead identify themselves as Irish, Mexican, Jewish, German, etc. As emigre professor Ludmila Yevsukov noted, in a personal observation, the only Americans now spoken of as a color- african-american having replaced black -are whites. 11. SeeJohn Alvis, The Slavey Provions of the Gsatution, 17 POL. Sca. REv. 241 (1987). 200 NOTRE DAME JOURNAL OF LAW, ET CS PUBLIC POLICY [VoL 11 cal size, and, along with these, race, irrelevant for purposes of forming government by consent, which leads in turn to the rule of law. In other words, the more general case of how to establish the rule of law covers the specific instance of race. The themes of political theory such as government by consent, republicanism, and citizenship, should be brought to bear on the race question; a radical political problem deserves a radical treatment. The failure of political debate to reflect on the place of citizenship and republican character is one indication of our contemporary detachment of the most wrenching issues from founding principles. 2 The crisis in civil rights mirrors an even deeper crisis concerning constitutionalism and modernity in general. Liberalism, with its emphasis on an abstract individual and limited government is not sufficient sustenance for the human soul. A strong sense of citizenship, an American political identity, trumps race, as we see in early Progressivism's attempts to assimilate non-anglo-saxons. But the fear of such identity and the political demands it might inflict-consider the debates over immigration-have led many to sympathize with Michael Walzer: America has no singular national destiny-and to be 'American' is, finally, to know that and to be more or less content with it. 1 4 Content with living in private spheres in a commercial republic, increasing numbers of citizens do not even exercise the minimal obligations of civic participation. But even the high degree of Tocquevillean civic activity-our ability to form voluntary associations 6 --does not fully reflect the political nature of man, as an examination of The Merchant of Venice will bear out. The theme of race and the law can be confronted only when we reach the political dimension that only the natural rights and citizenship issues bring forth. 12. Cf. MAIU MATSUDA ET AL., WoRDs THAT WouND: CRITICAL RACE THEoRY, ASSAULTIWE SmEcI AND Tm FmsT AMENDMEr 6 (1993) ( Critical race theory... ask[s] how... traditional interests and values serve as vessels of radal subordination. ). 13. WILSON CAREY McWiIAms, THE IDEA OF FRATERN ry IN AMERICA (1973). 14. MIhcHAEL WALzE, WHAT IT MEANS TO BE AN AMEmCAN 49 (1996). Cf. W.B. Allen, A New Birth of Fradom in SLAvERY AND ITs CONSEQUENCES: THE CONSTrrUTION, EQUALITY, AND RACE 64 (Robert A. Goldwin & Art Kaufman eds., 1988). 15. But see ROBERT D. PrrNAM, MAKNG DEMOCRACY WORKe CIVIC TRADITIONS IN MODERN ITALY (1993). 16. See TocQouxvuL, supra note 7. See also Thomas G. West, Misundertanding the American Founding in INTERmTING TocQUEvLLE's DEMOCRACY N AMERiCA 155 (Ken Masugi ed., 1991). 1997] RAC, THE RULE OF LAW, AND THE MERCHANT OF VENICE 201 I. A-MoRAL REPUBLICANISM: THE SLAVETRADERS OF VENICE Our contemporary racial situation indicates why Lincoln, that profound student of Shakespeare, would refer to the popular comedy of The Merchant of Venice as a tragedy. Lincoln declared, as we noted above, that [t]o correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals is one of the highest functions of civilization. Now Venice, both the historical one 8 and the one described by Shakespeare, provided the opportunity for strangers to become friends-indeed, in Shakespeare's Venice, Jessica, Shylock's daughter runs off with a local Venetian, signaling the transformation of the republic into a multi-ethnic city. 1 9 But the only equality the beautiful city recognizes is one of returning savagery for savagery. Thus, Venice, with all its potential for displaying the richness of human life (in more than the material sense but in arts, statesmanship, and faith) was a tragedy. In a sense, the Founders and Lincoln understood America as a perfected Venice, a worldly Belmont. By examining Shakespeare's The Merchant of Venice, that alluring anticipation of the modern world, we can learn about the virtues and requirements of our own republican form of government, especially as it relates to race. This dark comedy educates us Americans in the uniqueness of our political order. We are simultaneously dazzled, delighted, and perplexed by the explosion of pagan and biblical themes, of ancient and modern standards, of particular and cosmopolitan urges, and of erotic and commercial longings and empires. We learn from real ugliness what true beauty is CoLLEra WoiuS OF LINCOLN, supra note 1, at According to Federalist No. 39, Venice is where absolute power over the great body of the people, is exercised in the most absolute manner, by a small body of hereditary nobles -in other words, a tyranny. THE FEDERALIST No. 39, at (James Madison) (Jacob E. Cooke ed., 1961). Throughout his Discoures, Machiavelli contrasts Venice and Sparta unfavorably with Rome as models of republics. NiccoLO M mavelu, DIsCOURSES ON LrW (Harvey C. Mansfield, Jr. & Nathan Tarcov trans., University of Chicago Press 1996). 19. Cf.J.ms SHPIRo, SHAK PEARE AND THEJEws (1996) (arguing that the elevation ofjessica does not mitigate the English hatred of Shylock and of male Jews in general); and JomN GRoss, SHiiocK (1992). ForJessica as everyimmigrant, see RicHARD RODRIGUEZ, DAYS OF OBLIGATION (1992). 20. The most useful editions of The Merchant of Venice are the Arden edition (John Russell ed., Metheuen 1984), the New Cambridge Shakespeare edition, (M.M. Mahood ed., Cambridge University Press 1987), and the New Variorum Edition (Horace Howard Furness ed., Dover 1964). 21. See the extensive treatment of the Merchant in George Anastaplo, On Triak Explorations, 22 Loy. U. Cm. L.. 765, (1991). 202 NOTRE DAME JOURNAL OF LAW, ETHICS& PUBLC POLICY [VoL 11 As depicted by Shakespeare, Venice's flaws highlight our own potential virtues and our vices. No mere entertainer, William Shakespeare portrays the human soul in the same way as Plato did but with consideration of the political experiences of the Roman Empire and England, and, most importantly, the spiritual revolution of Christianity.' In Venice we see both the dregs of Rome and of Christianity, as a new social order of modernity begins to unfold: willfulness without faith, spiritedness and eros uninformed by reason. Shakespeare follows Plato in seeing the human and political problem as the tripartite soul's attempt to govern itself: Just as reason governs the passions in a well-ordered soul, so reason must gain consent within the political community. 2 An examination of the major characters' souls shows how The Merchant of Venice anticipates the political and spiritual disorders of modernity in general, and not just capitalism, as sometimes emphasized. 24 As we will explain in our treatment of American political principles, what Venice lacks is the natural rights foundation of the American polity. A comparison of the play with our principles illuminates how natural rights is the means by which America can attach its republicanism to classical virtue, its practical judgment to moral splendor-the focus of Aristotle's political science. Political education, citizen education, produces citizens who act 22. For readings of Shakespeare stressing the political themes, see ALLAN BLOOM, SHAKEPEARE's POLITICS (1964); Tovey, supra note 5; Cecilia Rodriguez, Religion in The Merchant of Venice, Paper presented at the American Political Science Association Annual Meeting (Chicago, Sept. 1994); Wi SHAKESPEARE'S MERCHANT OF VENICE, (Harold Bloom ed., 1986); Michael Zuckert, The New Medea, in SHAKESPEARE's POLmCAL PAGEANT 3-36 (Joseph Alulis & Vickie Sullivan eds., 1996); Martin Yaffe, The Statesmanlike Rehabilitation of Jzmsh and Christian Theology in Shakespeare's The Merchant of Venice, Paper presented at the American Political Science Association Annual Meeting (San Francisco, Sept. 1996). Yaffe has a book forthcoming on The Merchant of Venice from Johns Hopkins University Press. See also Harry V. Jaffa, The Unity of Tragedy, Comedy, and History: An Interpretation of the Shakespearean Unrverse, in SHAKESPEARE AS POLIrCA. THINKER 277 (John Alvis & Thomas G. West eds., 1981); JOHN ALvis, SHAKESPEARE'S UNDERSTANDING OF HONOR (1990). 23. As examples of Shakespeare following Plato, see The Tempest, where Prospero rules his daughter Miranda, his slave Caliban, and the spirit Ariel. WiujAm SHAKESPEARE, THE TEMPEST act 3, sc. 3, 5. See also Much Ado About Nothing, where Dogberry and the other bungling guardsmen in fact produce wisdom. WILLIAM SHAKESPEARE, MUCH ADO ABouT NOTHING act 4, sc. 2. Sometimes collective wisdom is equivalent to a single wise person's judgment. 24. For a provocative account on this theme, arguing that Locke is the successor to Shylock, see EDWARD ANDREW, SHYLOc's RIGHTS: A GRAMMAR OF LoGmAN CLAimS (1988). 1997] RACE, THE RULE OF LAW, AND THE MERCHANT OF VENICE 203 not only in their self-interest but also from their sense of duty. 25 Successful political action combines both realism and idealism. Thus the speakers in the Republic are dissatisfied with the attempt to reduce justice in a political community to the level of a gang of thieves, where it becomes a necessity: Such an indignity is morally and therefore politically unacceptable. 26 Even the vulgar modem, commercial world can foster classical virtue. 7 Indeed, our ability to think and act virtuously and humanely on our racial situation requires this perspective. Moreover, natural rights not only protects property rights, but it also teaches religious toleration, which the Venetians respect within limits readily reached, as we see in Shylock's forced conversion to Christianity.' The protection of property rights in America could not logically lead to the savagery of the bond Antonio and Shylock make.' What Venice finds wanting, America can offer. The modem, commercial world can not only tolerate diversity; it can foster classical virtue. Indeed, our ability to think and act virtuously and humanely on our racial situation requires the kalom a The natural rights teaching is part of a broader consideration, that of human equality. This equality is a recognition that men are neither beasts nor gods, but in-between beings, who share in both divinity and mere animal traits. The possibility of 25. SeeAbraham Lincoln, Speech at Springfield, i1l. (June 26, 1857), in 2 COLLECTED WORS OF LINCOLN, supra note 1, at 409 ( Will springs from the two elements of moral sense and self-interest. ). 26. See PLATO, REPuBIC bk. 1, 350c. 27. And we can thus appreciate, say, natural rights for the nobility it may contain. Modernity, as a creation of modem political philosophy seeking to create a new world on the basis of a lowest common denominator about how to think about man, is not simply low. We must learn to see beyond the leaden looks and discover the nobility of virtuous action on the part of men who en
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