Patent law cements white supremacy shown through historical examples such as Jim Crow laws and limitation of Black citizenship. The plan engages in a legal system dependent on re-affirming Black inferiority by creating a legal class of citizenship.

A. Tracing the Costs In 1913, Baker noted that although his list of nearly 400 African American patentees sat in a book on the shelves of theLibrary of Congress (referencing his essay in Culp’s volume), a candidate for Congress in Maryland, fighting a “hotly contested” election, had recently asserted “that the colored race should be denied the right to vote because . . . ‘no one of the race had ever yet reached the dignity of an inventor.’”190 This syllogism that African Americans could not invent and therefore should not be permitted to vote rested on two pillars: white forgetting and the political meaning of patents. It was only by forgetting Ned and the uncounted others who invented and patented that the Maryland politician and his white audiences could believe there was no such person as a black inventor. That forgetting permitted white leaders seeking to maintain, expand, and justify white supremacy in American law and society to make the repeated assertion that African Americans could not invent as proof of black inferiority. That assertion had political power because of the political higher circulations and more prestige did not publish African American authors or African American history. See supra notes 108, 135–141 and accompanying text. 187. Cf. Anderson, supra note 159, at 63 (analyzing print media as a way of creating “imagined communities”). 188. Taylor, supra note 66, at 334–39. 189. See supra note 11 and accompanying text. 190. Baker, The Colored Inventor, supra note 29, at 3 (quoting one of the candidate’s speeches). 1112 COLUMBIA LAW REVIEW [Vol. 120:1077 meaning of patents as certification of inventive ability, that is, the ability to originate and not just imitate. This claim became a favorite of politicians seeking to limit or nullify the Reconstruction Amendments and construct a Jim Crow society, com- plete with race-based franchise exclusions, because the ability to think independently had long been identified as a crucial ability in a democratic republic that required its citizens to self-govern through the franchise and other civic acts, like jury service and elected office. In American political thought, espoused by many of the Founders, those who only imitated were dangerous to the polity, because they merely copied opinions and actions. Such persons would be too easily swayed by demagogues, the argument ran. Democratic republicanism required independent thinkers. In the early republic, states sought to create an independent electorate by limit- ing suffrage to the propertied.191 By the mid-nineteenth-century, however, many states had loosened property limits on white male suffrage.192 Instead, identity became the means of distinguishing those able to exercise the franchise based on presumed innate ability.193 Even after the Reconstruction Amendments guaranteed citizenship and black male suf- frage, free African Americans joined women, Native Americans, children, and the insane as those excluded from full legal personhood as presump- tively disabled.194 Patents as certification of inventive ability and a proxy for independ- ent thought were thus facts relevant to the boundaries of citizenship as established in law and society. By the time the newly formed NAACP used its resources to publish The Colored Inventor, the assertion that African Americans had never received patents or invented had become persuasive evidence that the tightening legal strictures constraining black citizenship in Jim Crow America were justified. In 1886, one of the first African American activists to publish Baker’s list, the Reverend Richard W. Wright, warned that it was neither “prudent [n]or sagacious” to ignore the re- peated claims he saw in Southern newspapers of black inventive inability.195 Wright claimed that “six out of every seven men” believe it is scientifically provable “that Negros have no faculty for invention.”196 191. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 9–12 (2000) (describing justifications for retaining colonial property requirements). 192. Id. at 52. 193. Laura E. Free, Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era 11–17 (2015). 194. Welke, supra note 27, at 6–13 (describing how “ability, no less than race and gen- der, was fundamental to personhood and citizenship,” from “the nation’s founding . . . throughout the long nineteenth century,” as “[f]undamental rights of personhood . . . were limited to ‘the able’”). 195. Wright, supra note 81, at 398. 196. Id. at 398–99. Richard R. Wright, Sr., born enslaved in Georgia, was an educator and banker and active in Republican politics. Kevin F. Modesto, “Won’t Be Weighted Down:” 2020] RACE AND SELECTIVE LEGAL MEMORY 1113 If, as six out of seven white Americans believed, African Americans could not invent and were limited to imitation, they lacked this ability cru- cial to democratic self-governance. That belief rested on forgetting the les- sons of Invention of a Slave. The costs of that forgetting were and are legal costs that reach far beyond the patent office. The costs are paid in the continuing strength of legal and social racial hierarchies. It is noteworthy that during the decades when federal courts and leg- islators permitted states to pass and enforce Jim Crow laws, the patent office was a rare locus where rights could be asserted and secured in ways that were both formally and practically race-blind. States control many of the “rights of belonging,” such as the right to vote, to serve on juries, to attend public schools, and to get business permits and gun licenses, but they do not control any aspect of the federal patent system. While Baker noted that “it rarely leaves anything to the imagination” when an African American inventor comes “to the Patent Office to look after his invention,” such appearances are not required by the law.197 There was no legal requirement for black inventors to submit themselves to the racial catego- rization of white America in order to receive a patent.198 African Americans could (and did) originate and invent—and despite persistent and serious social, financial, and educational hurdles to patenting, some did so. Those patents represented not only the innovation and ambitions of each patentee to commercialize an invention, but a collective political resource to combat the costs of de jure and de facto racial inequality. Even as legal changes dismantled the first Jim Crow regime in the second half of the twentieth century, African Americans such as Burt, Diggs, Yancy, Sluby, and James continued to recognize and use the political power of patents, knowing that their community was continuing to pay these costs.199 The arguments of “pro-slavery traducers”200 did not disap- pear with the surrender of the Confederacy, nor with the passage of the Civil Rights Act of 1964, but continue as part of the ideology of white supremacy.