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Mainstream culture — especially legal culture — hypes Black History Month with no little irony. After all, black history demands special commemoration largely because the legal and cultural mainstreams have been so successful at obliterating it. But there are even sharper ironies: first, that we owe much of what we know of slavery’s survivors to the most popular mainstream writer of his day; and second, that the sharpest critique of law’s hypocrisy toward race is the story of a lawyer. The writer, Mark Twain, presents his own ironies. Today his modes of expression are justifiably objectionable to the very readers — young people — most in need of the history he chronicled. Yet Twain’s contemporary champions are African-Americans — critics who recognize that Twain did what no other writer even imagined, by giving speech and stature to those who had been denied education precisely to ensure that their tales were not told. More important, Twain was a writer who recognized that race was the ultimate fiction. At first glance, Twain’s courtroom novel “Pudd’nhead Wilson” looks like a rehash of his earlier work transposed to a legal setting: In an antebellum river town, the slave Roxy substitutes her tiny son for her master’s newborn. The switch remains undiscovered for 20 years, until Twain’s protagonist exposes the truth during a dramatic murder trial. Yet “Pudd’nhead Wilson,” like so much else of Twain’s fiction, is not simple entertainment, but wicked satire. It’s an exposition of what is most ironic about American law: that in using the language of equality, we mean something else entirely. The Dawson’s Landing of “Pudd’nhead Wilson” is less Sam Clemens’ “Hannibal” than it is a microcosm of America, a community founded by the First Families of Virginia (“FFVs,” Twain calls them). These men of law see nothing amiss in simultaneously owning slaves and spouting the Declaration of Independence. And Twain’s usual preoccupation with the malleability of identity — producing twins and twists, doubles and disguises — is his theme here, not just his trademark. Indeed, while “Pudd’nhead Wilson” first saw print in 1893, the tale itself — which begins in 1830 and ends in 1853 — is not reminiscence at all, but an evocation of the past used to comment on an appalling present: the last decade of the 19th century and the legal environment that produced Plessy v. Ferguson (1896). FALLACY BEFORE THE COURT The extent to which race defines us, even now, may be the single greatest failure of American law. Law might have wiped out our reliance on racial difference 130 years ago, exposing race as a social construct of no value in assessing intellect or ascribing character or affording status. But it didn’t. Mired in controversy with angry conservatives, the draftsmen of the 14th Amendment removed language that would have barred all distinctions based on race, opting instead for the compromise of “equal protection.” Fifteen years later, in another surrender to conservatives, the U.S. Supreme Court found that American law might protect equally, but that it would not affirmatively equalize — or, at least, not to the extent of barring racial discrimination. By 1892, when Homer Plessy refused to move to the Negro section of a Louisiana train, America was a place where every aspect of identity — where one drank or dined, sat or shopped — depended on the arbitrary assessment of race. Designed by progressive lawyers as a test case, Plessy v. Ferguson placed the fallacy of race-based distinctions directly before the Supreme Court. And Homer Plessy — educated, employed, and visibly white (state law having relegated him to black facilities because his great-grandmother had been a slave) — was an ideal plaintiff. Plessy urged the justices to recognize that race was a social concept, not a legal one, and that all citizens were in fact the same — subject to individual differences, but not classifiable by group attributes that made them more or less deserving of clean facilities and good service. Infamously, the Court’s majority responded that race was a distinction in law because it was a distinction in fact. American law will support statutory distinctions between the two races so long as “white men are distinguishable from the other race by color,” Justice Henry Billings Brown told the fair-skinned plaintiff. A student of irony might have observed that law — not color — had rendered Plessy black. A FICTIONAL TRIAL If the test case that Plessy’s legal team devised in 1892 didn’t expose the fallacy of racial classification, the one that Twain began to craft during the same year did. Twain chose as his narrative device the courtroom drama. Not surprisingly, “Pudd’nhead Wilson” both advances and subverts that genre. The courtroom novel’s first convention is that its protagonist is a lawyer who has lost standing — invariably, for some reason related to the story’s thesis. Appropriately, Twain’s hero, David Wilson, is an Easterner who has worked to become a lawyer, but who has neither the perspectives nor the pedigree of the FFVs. Wilson is even more at odds with his community’s law because he recognizes irony — that is, he sees neither issues nor individuals in terms of black and white. Within hours of arriving in Dawson’s Landing, he offers a whimsical comment that is lost on the town’s literalists. The quip costs him his law practice and earns him the nickname “Pudd’nhead.” For 20 years, Wilson suffers ignominiously outside the law. In the interim, Roxy’s look-alike babies grow to manhood. And Wilson becomes an expert on classification, identifying fellow citizens through their fingerprints. Then, as the genre’s formula decrees, Wilson accepts a case that forces him to confront the values most antithetical to his own: His brilliant antagonist represents a community grounded in distinctions based on race. That is, “Pudd’nhead Wilson” pits Wilson against the remarkable Roxy — like Plessy, one-sixteenth black and circumscribed by the race-based designation that makes her a slave. Roxy doesn’t endorse racial classification, of course. To the contrary, Twain depicts her as its truest victim. But like Christine Vole — the magnificent antagonist of another courtroom drama, Billy Wilder’s “Witness for the Prosecution” — Roxy understands exactly how her culture sees her. Then she shrewdly turns that discrimination to advantage. Twain puts America’s race-based legal system on trial — as Plessy did — when the town’s foremost FFV is murdered. Then Twain uses his characters to skewer the idea that inferences based on race have any worth whatsoever. The defendants, Italian twins who become Wilson’s clients, are racially — and in every other way — identical; yet Twain shows them to have very distinguishable personality traits. Roxy’s look-alikes, her spoiled son and the heir whose place he took, are arguably — albeit not visibly — racially distinct; but Twain makes it clear that they are temperamentally unlike because of the treatment their assigned status has afforded them. JUSTICE ENDS In the end, Wilson triumphs by showing that identity is based on individual, not group, characteristics. In the conventional trial story, that resolution — with the guilty exposed, the innocent freed, the truth revealed — would signify that legal policy has been realigned with justice. Pudd’nhead Wilson’s detractors complain that, instead, the novel reinstates a system predicated upon slavery. But Twain recognizes that any legal system that extols equality while endorsing racial distinction offers no more than irony. Thus, “Pudd’nhead Wilson’s” ending depicts law at its worst: Roxy’s son is arbitrarily designated a slave and — denied even a murderer’s status — sold “down the river.” The rightful heir is emancipated, but left without the skills and socialization that would make him truly free. “We cannot follow his curious fate further,” Twain writes. “That would be a long story.” A long story and the chronicle of every American who — freed by Lincoln’s Emancipation Proclamation — remained in servitude to poverty and despair. Ultimately, “Pudd’nhead Wilson” dismays us — but no more than Plessy v. Ferguson offends us, no more than white superiority’s longevity as our most potent national myth shames us, no more than our continuing denial that we bear no responsibility for the ongoing effects of discrimination disgraces us. Twain’s tale provokes us with its splendid irony — but no more than Black History Month, a reminder that the erasures permitted by racism inscribe the story of us all. Terry Diggs teaches courses on law and film at Hastings and Golden Gate University law schools. Her e-mail address is [email protected]

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