Counterstorytelling

Even as a small-scale story of slavery in the antebellum United States, Invention of a Slave provides a poignant example of the contradictions between humanity and property that challenged and distorted American law in a slave society.16 It forces us to acknowledge that the ideology of slavery reached into the technical bureaucracy of the patent office, an area of law and of the administrative state frequently considered outside politics.17 The dry lines of the opinion expose the breathtaking claim by an enslaver to the mental labor of another person—an ultimate claim of whiteness as intellectual property—and another frontier in the “myriad and nefarious uses of slave property.”18 These features make Invention of a Slave a story worth remembering. One of history’s projects is the recovery of missing stories. This goal has always been urgently foregrounded in African American history as a corrective to the whitewashed narrative that dominated professionalized history in the United States from its late-nineteenth-century inception.19 Invention of a Slave, however, has never been a “forgotten” or missing story.20 For over 150 years, African American activists have remembered and written about the opinion in many venues excluded from our collective legal memory.21 Their remembering was not casual storytelling but rather deliberate, strategic, and political. Understanding the purpose of their efforts reveals the opinion’s continuing relevance to our collective effort to understand what the law is, how it is working, and how it might be changed in the service of justice.22 I offer Invention of a Slave as a case study of race and selective legal memory, tracing the color line that demarcates legal memory and the costs of that line.23 I begin with my first encounters with Invention of a Slave and its backstory as told in African American “sites of memory.”24 I then foreground the nineteenth- and twentieth-century storytellers to understand by whom and in what places the opinion was remembered. With an appreciation of the opinion as a remembered story, I can then ask, why? What were the stakes that drove African American activists and leaders to tell and retell the story of the enslaved inventor and his exclusion from the patent system? I argue that this memory work was performed in support of fights for the “rights of belonging,” the various civil rights that signal and accompany inclusion.25 Between the formal lines of the opinion, these activists read an unintended message that patents could be political tools used to oppose anti-black racism and racist laws. They mobilized patents as government certifications that their recipients had a prized mental ability, inventiveness, in order to undercut the logic of racism in its shifting guises, including scientific racism, white supremacy, and the pernicious bigotry of low expectations. This labor resulted in publications that remained on the other side of a color line, excluded from the acknowledged repositories of legal memory. This exclusion has carried costs, as we in law have failed to appreciate and participate in what was always in part a legal effort, even though it occurred outside formal legal publications. These storytellers, by telling one of law’s stories, were seeking legal change. Our legal erasure of both the opinion and storytellers has allowed us to encounter a wellremembered story as “forgotten” and remain blind to its relevance. Acquiring a new perspective transforms Invention of a Slave from an oftoverlooked piece in the vast mosaic of law and slavery in the antebellum United States into part of the post-Emancipation history of race and law— a history characterized by never-ending and always-changing campaigns to fulfill the formal promises of the Reconstruction Amendments to bring African Americans into law and society as citizens. This history has not ended, but rather remains “something that is happening,”26 as we continue to debate what Barbara Welke has memorably called the “borders of belonging,” that is, the contours of citizenship and Americanness as shaped in law and society.27