by Dennis Crouch
The Black Lives Matter movement, ongoing protests, and statements of alliance have given me new hope that our society and its institutions are ready to take another step toward equal justice.
In 1857, the US Supreme Court decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) and affirmed what various state courts had previously decided — that under the law, free (non-enslaved) black and brown people were not United States Citizens.
[A]s long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States; and the correctness of this decision is recognized, and the same doctrine affirmed, in 1 Meigs’s Tenn. Reports, 331.
Dred Scott. The following year, the US Patent Office with support of the US Attorney General took action to enforce the law in a memorandum entitled “Invention of a Slave.” The memo begins with its clear statement: “A new and useful machine invented by a slave cannot be patented.” Under Dred Scott, a non-enslaved people of color also lacked the requisite citizenship. Two recent articles walk through these events: Brian L. Frye, Invention of a Slave, 68 Syracuse L. Rev. 181, 194 (2018) (historical analysis); Kara W. Swanson, Race and Selective Legal Memory: Reflections on Invention of a Slave, 120 Columbia Law Review 1077 (2020) (reflection on historical and ongoing impact, inter alia). The decision actually frustrated slave owners and during the civil war, the patent laws of the Confederate States did allow for patenting of inventions by enslaved peoples – although all ownership rights would flow to their owners.
In many ways, the courts fit its slavery cases within the doctrines of property law. Enslaved people were identified as property. A third new article in this vein is not intellectual property focused but walks through many ways that these old slavery cases remain good law today. Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79 (2020).
Prof. Swanson reflected on her personal journey with Invention of a Slave — a journey that fits many of our own constructs:
As a former patent attorney turned legal scholar, I first encountered Invention of a Slave as an appropriately forgotten opinion. I saw no relevance to my former practice or to teaching patent law. I thought of it as a minor piece of patent lore, remaining firmly within my legal mindset of sorting precedents into “good” versus “bad” law. Nothing in my background as a white American, trained in science, law, and history in majority-white institutions, led me to see it differently.
Swanson. Although not originally relevant to her, Swanson began to wonder why the the document remained relevant to the African American community. She explains – “Invention of a Slave might be unread by lawyers, but the African American community and its white allies were encouraged to take a look if they needed further proof to understand why so few African Americans had patented inventions before Reconstruction.” Swanson. Reconstruction era Constitutional Amendments and the Civil Rights Act of 1866 ended the the prohibition on patenting by brown and black Americans. Still, Professor Swanson’s essay walks through a small sample of ongoing roadblocks and hurdles for patentees, patent examiners, and lawyers. Jim Crow of the patent system.
In my own state of Missouri, and at my home institution the University of Missouri School of Law, it took the US Supreme Court to order us to admit a qualified African American student, Lloyd Gaines. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). Even after that decision, the State determined that mixed race legal education would be so problematic that it opened a separate law school for non-white students. As for Lloyd Gaines, he disappeared in Chicago before starting law school. Here at the University of Missouri School of Law, we did not graduate an African American attorney until 1970.