T IMOTHY D EINES Interrogating the Moral Contract in Ruiz de Burton’s The Squatter and the Don In his reading of William Dean Howells’s A Modern Instance (1883), Brook Thomas describes a certain transition and dilemma in American history. Discussing the town of Equity, in which much of Howells’s novel takes place, Thomas writes: If, on the one hand, the town of Equity evokes the image of an agrarian republic intent on establishing a reign of classical virtue, on the other, it evokes the image of a static, hierarchical society in which the “right reason” of a governing elite gives it access to higher laws of justice unavailable to the people at large. The breakdown of Equity’s order … is thus double edged. Promising freedom from an aristocratic paternalism that blocks democratic development, equity’s breakdown also threatens the moral foundation on which the United States promised to construct a more equitable and virtuous society. (27) With the possibility of equity’s collapse arises the dilemma of how to preserve republican virtue together with democratic development. Republican equity and liberal contract thus represent the two halves of a moral capitalist society, in a normative sense. In contrast to equity, Thomas tells us, contract “implies a universal standard in which everyone has the same duties as everyone else - even strangers” (28). In the quintessentially liberal, if not democratic, economic climate of contract, aristocratic hierarchy is threatened, but so is equity, which is to say justice itself. Defined by Aristotle as “the sort of justice which goes beyond the written law,” equity is guaranteed by “unspoken agreements sanctified by tradition…” (qtd in Thomas 26; Thomas 29). Contract threatens to negate equity’s corrective antidote altogether. In contract, people are held “responsible only for actions considered legally binding.” If custom and tradition are the guarantees of justice in an aristocratic world of status, law is the guarantee of justice in a liberal world of contract. But as a result of the latter, “people could violate unspoken codes of behavior without legal reprisal.” In a world of contract without equity, the question is whence justice? But Thomas’s quotation also implies that in a hierarchical world of equity without the universal standard implied in contract, the question remains the same: whence justice? Published only two years after Howells’s realist classic, María Amparo Ruiz de Burton’s The Squatter and the Don (1885) represents yet another “modern instance” in its far less ambiguous attempt to reconcile equity and 270 T IMOTHY D EINES contract, aristocracy and democracy, republicanism and liberalism. 1 Ruiz de Burton wants her novel, in contrast to Howells’s, to end in marriage and not divorce. The trouble is that the literal marriage between children of the principle families in Squatter is not reflected in the “marriage” of equity and contract. Instead, contract, particularly in corporate form, threatens to obliterate equity, and the novel’s narrator is left to ponder alternative forms of justice to equity. In these alternatives, another justice emerges that is not the customary justice of equity. Rather, it is the justice of democracy, and it appears at and as the very limit of the law, in the form of the moral contract. I. Squatter perfectly reflects the dilemma between republican equity and liberal contract that Thomas describes. In 1872, overlapping the time in which Howells’s fiction is set, the agrarian, aristocratic Alamar family finds its means of subsistence, cattle ranching, threatened by squatters who care nothing for equity but only for the law. Don Mariano Alamar, the family’s genteel head, is the virtual poster-boy for republican virtue. He does not rule his 45,000-acre ranch so much as he moves with the noble comportment of an ancient Greek citizen among its well-ordered relations. To the Darrell family, Anglo settlers from New England, the Mexican Alamar men appear as “Englishmen” and “gentlemen” (Ruiz de Burton 85). Such classical and feudal associations affirm that a certain aristocratic handsomeness, in men and women, is the natural accompaniment of moral virtue in Squatter. The same cannot be said of the squatters themselves, whom the supposed evils of pure contract have reduced to ugly, mean, desperate figures. In an early scene, John Gasbang, one particularly despicable squatter, as he prepares to “claim” what he regards as his legally sanctioned piece of land on Don Mariano’s rancho, gleefully exclaims, “This is what I call business … and all inside the law. That is the beauty of it - all perfectly lawful” (Ruiz de Burton 73). But Don Mariano, in equitable fashion, takes an enlightened attitude toward Gasbang’s and the other squatters’ actions: No, I don’t blame the squatters; they are at times like ourselves, victims of a wrong legislation, which unintentionally cuts both ways. They were set loose upon us, but a law without equity recoils upon them more cruelly. Then we are all sufferers, all victims of defective legislation and subverted moral principles. (Ruiz de Burton 74) 1 Future references to this text will be cited as Squatter. While these terms are not intended as a series of strict equivalencies or analogies, their alignment offers a suggestive framework, to be developed throughout this essay, for thinking about the political in Ruiz de Burton’s novel and in our own time. Interrogating the Moral Contract … 271 Law without equity rules political economy in Squatter. Don Mariano, whose very name recalls the aristocratic virtue supposed to check contract, knows that in a world of contract without equity no one is safe, ultimately, from anyone else, marking a return to a kind of Hobbesian state of nature. The complexity of customary relations are leveled to the point where individuals become mere economic units in a highly dynamic but extremely insecure environment (Thomas 29). In this world, justice becomes subject to a marketplace rationality where one day the law protects individual property and the next day abandons it to contingent forces. Thus, when the Don’s son, Victoriano, tired of being preyed upon by squatters, remarks, “I wish we were squatters,” the Don wisely replies, “During litigation, yes; but there have been cases where honest men have, in good faith, taken lands as squatters, and after all, had to give them up” (Ruiz de Burton 74). Don Mariano knows that where legal contract alone rules, justice is purely arbitrary and catch-as-catch-can. Squatter’s discrimination between equity and contract is most felt in what separates the Alamars, the Darrells, and the double figure of the squatters, on the one hand, and the railroad monopolies, on the other. 2 Sometimes Ruiz de Burton’s depiction of the Alamars borders the modern nostalgia in American literature one finds, for example, in Cooper’s historical positioning of Amerindians in the Leatherstocking novels as a people whose time has come. Landed aristocrats with “Spanish” origins, the Alamars “never will be business men” in a political modernity increasingly ruled by capitalist interests (Ruiz de Burton 83). Like the Amerindians in Cooper, the Mexican Alamars are sometimes made to appear as the “vanquished, who no longer had rights in their patrimony, and must henceforth wander off disinherited, despoiled, forgotten” and “sadly fade and pass away” (81, 164). If the Alamars belong to a residual Mexican aristocratic class, the Darrells, by contrast, belong to a middle-class Anglo ascendancy. This is perhaps best exemplified by the way in which the Darrells’ son, Clarence, and Mrs. Darrell complement one another. Clarence is the proverbial “self-made man” who, from “the sum of $2,000 bequeathed to him by Mrs. Darrell’s Aunt Newton, when he was five years old,” has accumulated a massive fortune from speculations in silver mines and other interests (102). He inherited his wisdom for investment from his mother, apparently, who, in the novel’s opening pages, speaks much of the “wisdom” of being “guided by … past 2 For considerations of space, I cannot adequately deal with the “complicated alliance between corporate and contractual capitalism” (Thomas 4). Thomas’s borrowing of the term “corporate liberalism” suggests, however, that even as collectivities of human individuals, corporations, by being considered “persons,” affirm the liberal conception of the person as a reasonable being capable of being a citizen and owning property, among other things. 272 T IMOTHY D EINES history” or “experience” (55). Mrs. Darrell refers here to the Darrells’ first excursion out West in 1848, immediately following the Mexican-American War, when Mr. Darrell (called simply “Darrell”) mistakenly claims land belonging to a Californio and then loses that land, after having worked it, when a federal court affirms the Californo’s title. 3 Some twenty-five years later, Mrs. Darrell stipulates to her husband, “do not go on a Mexican grant unless you buy the land from the owner” (57). She further instructs: “If the rancho is still in litigation, don’t buy land in it, or if you do, buy title from the original grantee, on fair conditions and clear understanding.” The Darrells have thus already experienced the vicissitudes of a justice premised on judgments of a merely legal nature. In 1848, they gambled with such a system, and lost. To avoid this recurrence, Mrs. Darrell stresses equity-like principles of “fair conditions” and “clear understanding,” principles that add an interpersonal dimension to a merely legal economic transaction. But Darrell himself fears he possesses a “streak of perversity” that will not allow him to abide by the demands of fairness (Ruiz de Burton 56). The novel’s unfolding bears him out in this fear as he eventually forgets his wife’s advice, with disastrous consequences for both families. Darrell’s streak of perversity is a moral failing that ties him to the squatters and the corporations, who “legally” dispossess people of their land with no thought for fairness, equity, or the like. The difference between an equitable contract and an inequitable one is summed up in the novel’s definition between “squatter” and “settler,” between which Darrell is constantly shuttling. A squatter, Mrs. Darrell explains in the novel’s opening pages, locates a claim “on land belonging to anyone else” other than the government (Ruiz de Burton 56). In doing so they cause “much trouble to people who never harmed them.” A settler, on the other hand, Rosaura Sánchez and Beatrice Pita tell us, “is described in moral … and economic terms” (23). A settler is willing to pay the asking price for land, whether to the government or an individual owner. “[The settler] is thus an individual entrepreneur who can invest in land, cattle and seed crop. The squatter, by contrast, is landless, generally with no capital to buy the land, but at the same time a gambler of sorts who, landhungry, is willing to work land that he may eventually lose.” Settlers thus negotiate contracts (titles) for land with whomever they intend to by from; they do not simply make a claim on the foundation of dubious law, which may or may not finally recognize such a claim. Proper, moral contracting requires certain manners and protocols, the novel suggests, and without the supplemental fairness that such manners add to mere contract there is only an ongoing violent dispossession of one individual or group by another. 3 The term “Californio” refers to Mexicans, sometimes Mexican-Americans, living in Alta California, or present day California, prior to the Mexican-American War. Interrogating the Moral Contract … 273 Like the squatters, the railroad corporations are not willing to enter such interpersonal negotiations. They simply ride roughshod over any interests that appear to contradict their own. Their attitude in the novel conforms to the squatters’: they “do not aspire to anything more than taking care of … business,” in the words of Leland Stanford, one of the so-called “Big Four” magnates (295). When confronted with the fact that many will suffer as a result of his actions to stop a southern pacific route, he replies, “if I don’t cause distress, someone else will. Distress there must be, bound to be in this world … .” Together, the monopolists and squatters represent a moral impasse for the equity-minded classes, despite the fact that the squatters are as subject to corporate depredations as the Alamars and Darrells. 4 C. Loyal, the narrator, finally denounces the monopolists in the harshest terms she can muster: These monopolists are essentially dangerous citizens in the fullest acceptance of the word. They are dangerous citizens, not only in being guilty of violation of the law, in subverting the fundamental principles of public morality, they are dangerous citizens, because they lead others into the commission of the same crimes. Their example is deadly to honorable sentiments; it is poison to Californians, because it allures men with the glamour of success; it incites the unwary to imitate the conduct of men who have become immensely rich by such culpable means. (Ruiz de Burton 338) From C. Loyal’s point of view, “commercial honor, business morality, should be based on strict rectitude, on the purest equity” (294). The corporations and squatters, however, “defy the law and use their power to the injury of others.” “Law” here appears as natural law, as opposed to positive law. The corporations and squatters are not dangerous because they violate any actual statute. Indeed, their collusion with federal and state governments contributes to the very fashioning of positive law, guaranteeing, to the extent possible, that their actions conform with law. They are dangerous, rather, because they undermine what in the novel is called “fundamental morality” (200). This natural law underwrites, or ought to underwrite, all positive law, since it is the ground of natural social existence, what Thomas, following Maine and Tönnies, calls “Gemeinschaft” (Thomas 29). Quoting Spencer, one character says that “‘the inferences of political economy are true, only because they are discoveries by a roundabout process of what the moral law commands’” (Ruiz de Burton 200). “Law” thus means something different in the mouths of the aristocratic Alamars than it does 4 All of the characters share an essentially negative view of “human nature.” The contract-without-equity view, represented by Stanford, sees human beings as essentially evil. But so does the equity-in-contract crowd, and for the same reasons. Without equity, contract, which relies on a natural understanding of the individual, is liable to grow monstrous, like a monopoly. 274 T IMOTHY D EINES in the mouths of the squatters and corporations. It is the difference between equity and contract, to be sure, but it is also the difference between a justice rooted in the timelessness of natural law (thus its basis in “sentiments” or feelings) and a justice commensurate with market dynamics. If equity corresponds, generally, to a form of civic republicanism, in which the political good depends upon a certain civic comportment or manner, and contract corresponds to a liberal logic of personhood, in which such persons vie with one another in a free marketplace, what can be said to ground this distinction itself? One answer, of course, is capitalism. Here, republicanism and liberalism become alternative means of harnessing the productive potential of capitalism for the benefit of the State, which is to say “the people,” or at least for particular interests that use the State as a means to their own ends. From this perspective, typically associated with a thinker like Marx, republicanism and liberalism name ideologies of bourgeois political community, i.e., the State, and provide sets of norms, or laws, for mediating between the State form and its capitalist base. But Squatter does not take such a position. It argues, rather, that the State should supply the equity that contract alone lacks, and that such regulation will suitably tame contract for society’s general well-being - a circumstance symbolized by the marriage between the republican-minded Mercedes and the liberal-minded Clarence. A serious critique of capitalism is not to be found here. Operating wholly within the horizon of capitalism, Squatter presumes that contract without equity will ruin society, since no moral ground exists in contract itself to tie its function to the general welfare of the political community, or the State. Equity, beyond its existence in sheer custom, requires, in Don Mariano’s words, “that the legislators of a nation [be] the guardians of public morality, the teachers of what is right and just” (Ruiz de Burton 161). The idea and practice of equity - “the sort of justice that goes beyond the written law” - implies, as Aristotle also says, “a correction of legal justice,” and thus moral and ethical dimensions (1020). In Squatter, the State is supposed to provide such corrections to law. But can we be so certain that contract, and liberalism generally, lacks a properly moral dimension, or does its socio-economic expression simply amount to, as one corporate type says, “business principles,” according to which “everyone is for himself,” and money becomes “the sole requisite upon which to base social claims” (Ruiz de Burton 292, 324)? This notion of “business principles” can arguably be considered a “morality” in its own right, even though its basis is the dynamic, ever-changing, and thus insecure, law itself. But there may be a stronger way of grasping liberal contract’s moral dimension. To get at it we must switch from a discussion of historical contract, as in “the Age of Contract,” to contract as a liberal philosophical idea, or social contractarianism (Thomas; Friedman). Interrogating the Moral Contract … 275 II. To cut through the enormity of the literature on contract, I will focus explicitly on Scott Michaelsen’s rebuttal of Charles Mills’s understanding of the “racial contract.” Michaelsen’s view of the more fundamental “moral contract” will assist us, in turn, in articulating the common reference point that civil republicanism and liberal individualism share in common. The point here will be that the fiction that is the moral contract constitutes the basis of State identity, or citizenship, whatever its balance between republican and liberal ideals happens to be. In this context, the question of justice does not end at the limit of equity, since the latter is enfolded within the moral contract. Rather, justice becomes a question of thinking the limit of the moral contract itself. In his attempt to purge a certain contractarian tradition of its potential complicity in racism, Mills constructs the notion of the “racial contract” as a special, non-fungible contingency in an otherwise “useful” contractarianism (Mills 137). “For me,” Mills writes, “it is not the case that a Racial Contract had to underpin the social contract … . I believe contract theory can be put to positive use once this hidden history is acknowledged …” (136-7 n9). But, from another point of view, the question is not what “positive use” can come from a racism-free social contract; rather, the question is whether the writing of “this hidden history” of the racial contract, which is to say its exposure as a non-essential contingency within the social contract, can indeed free the social contract from the kind of structural exclusivity that racism exemplifies. In other words, is social contractarianism capable, theoretically, of non-exclusivity? In “Between Japanese American Internment and the USA PATRIOT ACT: The Borderlands and the Permanent State of Racial Exception,” Scott Michaelsen answers this question negatively. Michaelsen locates the basis of Mills’s racial contract in the moral substratum of classical contractarianism itself, particularly in Hobbes and Rousseau. If Mills understands the white racial contract as the contingent basis of liberal political exclusivity, Michaelsen sees it as epiphenomenal to a more radical fiction called the “moral contract.” Michaelsen writes: the problem that Mills does not acknowledge, and apparently cannot see, is that the crucial discrimination for comprehending the racial contract is in fact the same discrimination that undergirds the totality of the moral contract. The moral contract, through and through, turns upon the divide between those who are fully human and those who are less so. The moral contract is guaranteed only by the labor or elevation of the citizen. (101) 276 T IMOTHY D EINES In other words, what is at stake in Mills’s study of the racial contract (a political exception beneficial to whites) is the moral criteria that determines who is to be consider a fully human person, in the liberal sense, and who is not. The moral contract thus represents the political measure for who shall be considered a candidate for citizenship and who shall not. As such, the moral contract serves to draw a line between person (fully human) and nonor sub-person (less human): “no matter how universalized [whether within the State or beyond, in a version of liberal cosmopolitanism, for example] the granting of personhood, the figure of the ‘subperson’ continues to lurk as an available, and necessary, related category” (Michaelsen 102). The necessary availability of the subperson, at the beginning and end of liberal polity, “necessarily provides the purchase for the categories of race, ethnicity, nation, and the like.” The overlap between personhood and citizenship is considerable here, as is that between personhood and human being. Indeed, as communitarian philosopher Adrian Oldfield has said, in the clearest possible terms, “to remain a citizen one cannot always treat everyone as a human being” (81). 5 Oldfield speaks from a republican perspective, to be sure, but it is undoubtedly a logic that belongs to liberalism as well. For the liberal construct of the individual and its liberties is entirely dependent on the State for the recognition and protection of those liberties. Thus, for both republicanism and liberalism a clear line must be drawn between those who meet the minimal requirements of membership and those who do not. At the limit of the subject-citizen there is the moral difference between the subject-citizen, or person, and its other, the subperson. 6 This is a first requirement for the State, liberal, republican, or otherwise. 7 A second requirement is that this moral difference manifests itself for the State. The subhuman, the being that does not meet the requirements of being a liberal person, must appear to the State, so as to be identified, but its appearance need not take a particular form - as non-white skin, for example. The marks of the subhuman, theoretically, can take whatever form. These marks con- 5 The term “citizen” is more appropriate to republican political philosophies than liberal ones, to be sure, but to the extent that the moral contract is fundamental to the liberal State (i.e., a State constitution whose premise is “universal” equality), theories about the rights and duties of citizens also fall within its orbit. 6 The reader should keep in mind throughout that I am trying to perform a descriptive critique of the moral contract, that is I want to describe how such an amorphous political fiction can and must work to found the State. From another point of view, however, nothing is less certain than the relative “humanity” of those occupying either side of the moral contract’s border. What is beyond doubt is that the figure of the human is itself a political fiction. 7 Unless noted otherwise, when the term “State” is used, it should be understood as referring to the U.S. liberal-republican polity. This does not mean, however, that this analysis is exceptional to the American State. Interrogating the Moral Contract … 277 form to what Etienne Balibar defines as “neo-racism”: “the phantasm of prophylaxis or segregation … articulated around stigmata of otherness” (17-8). 8 In this sense, the State may put to use whatever “stigmata of otherness” it finds convenient for the constitutive work of the moral contract, which is to say the singling out and excluding of the “subhuman.” 9 III. Since Rosaura Sánchez and Beatrice Pita reintroduced Squatter to the American academy and public over a decade ago, most critics have tried to situate it and Ruiz de Burton’s first novel, Who Would Have Thought It? (1872), within a historical narrative of Mexican-American resistance to U.S. 8 The “racial exception,” as I am trying to conceive it, cannot therefore be reduced to historical particularity. This does not mean, however, that historiography is useless or redundant. On the contrary, the very structure of the moral contract under consideration here requires a heightened vigilance towards its historical manifestations. 9 Liberal historian Rogers M. Smith, an important voice in American critical legal studies, takes an ambiguous view of diagnoses like Michaelsen’s of the moral contract. While Smith affirms that “features of liberal thought … were used to support patriarchy,” for example, he also thinks that “these elements … made earlier versions of liberalism … logically inconsistent with their own human rights arguments” (517 n44). Finally disagreeing with Carol Pateman’s important criticism of the “sexual contract” at the heart of the moral contract, Smith writes, “If the assumptions and endorsements of patriarchy are eliminated, liberal theories lose nothing essential and instead become internally coherent.” Thus, Smith appears to endorse a version of liberalism that can expunge the necessary appearance of the “subhuman.” But there is evidence that Smith ultimately sees “ascription” as an indelible, even desirable, feature of liberalism, as when he identifies, on the last page of his impressive study, “human dignity” as the telos of liberal politics, or when he invokes the criteria of “minimally rationally [sic] individuals” as the proper subjects of “universal rights” (506, 517 n44). Both of these examples support Michaelsen’s contention that the moral contract necessarily produces the criteria for discriminating between those who meet the moral criteria of liberal political belonging and those who do not. How else can one explain Smith’s surprising call to accommodate “some of the appeal of ascriptive Americanism for a liberal democratic conception of U.S. citizenship” (504)? One further note: of crucial importance to Smith’s study is the distinction between “Lockean liberalism,” republicanism, and the aforementioned “inegalitarian ascriptive traditions of Americanism” (2, 3). While space does not allow me to critique the logic behind such discrimination, what I suspect is that the distinction itself obscures what is common to both the liberal view of the moral individual and the republican view of the duties of citizenship: a minimum threshold of “moral” identity must always be met if one is to be considered a viable political being. The question is whether or not there must always be “human” beings adjudged not to conform to such a threshold in order that there be those that do. This essay attempts to answer this question in the affirmative, with an eye towards, in Derrida’s words, a justice to come. 278 T IMOTHY D EINES imperialism, including the Chicano Movimiento of the late 1960s forward. 10 One exception is Kate McCullough’s reading of Squatter, which interprets gender roles in the novel as structuring the public and private spaces of the novel’s political imaginary. But whether critics have focused on the legally sanctioned subordination of Mexican-Americans (race) or women (gender), none have argued that these particular manifestations, important as they may be, are symptomatic of the moral contract itself. In Michaelsen’s terms, they have attended to the “racial contract,” in one guise or another, but they have left the moral contract undisturbed. José F. Aranda Jr.’s reading of Who Would Have Thought It? is instructive on this point. Aranda Jr. has tried to complicate the literary heritage that reads Ruiz de Burton as a prototype for today’s “resistance theory” by reading the text of her first novel against, on the one hand, biographical data and, on the other, “the cultural moment that reproduced her work,” namely the series “Recovering the U.S. Hispanic Literary Heritage,” under whose auspices Ruiz de Burton’s novels were reissued (Aranda Jr. 553). A reading that discovers “who [Ruiz de Burton] actually was,” Aranda Jr. argues, “compensates us” for the “loss” engendered by those biographical and textual moments that render Ruiz de Burton not so much as a figure who resisted U.S. imperialism as one who was complicit with it (555). Aranda Jr.’s own traditionalist view of biography leads to conclusions consistent with a strongly historico-culturalist methodology. Late in the piece, for example, after he has assembled his biographical data, Aranda Jr. concludes that “Ruiz de Burton’s perspective … is different from those of Anglos and African Americans because she brings to her writing a different colonial tradition” (571). Aranda Jr.’s contrast of Ruiz de Burton the individual with the sets “Anglos” and “African Americans” reveals that this critic sees in Ruiz de Burton’s biography the biography of Mexican-Americans themselves; the latter are uncritically reduced to the former. Positioning himself, again without critical comment, within this group, he is thus able to ignore throughout his piece any examination of those structures, like the moral contract, that 10 See in particular the following: Rosaura Sánchez and Beatrice Pita, “Introduction to The Squatter and the Don.” The Squatter and the Don. Eds. R. Sánchez and B. Pita (Houston: Arte Público Press, 1997): 7-49; José David Saldívar, Border Matters: Remapping American Cultural Studies (Berkeley: University of California Press, 1997); John M. González, “The Whiteness of Romance: The Cultural Politics of Racial Formation in María Amparo Ruiz de Burton’s The Squatter and the Don. In the Wake of Reconstruction: National Allegory and Narrative Form: 1877-1907. Dissertation (Stanford University, 1997): 131-73; Kate McCullough, Regions of Identity: The Construction of America in Women’s Fiction, 1885-1914 (Stanford: Stanford University Press, 1999); Amelia María de la Luz Montes and Anne Elizabeth Goldman, Maria Amparo Ruiz de Burton: Critical and Pedagogical Perspectives (Lincoln: University of Nebraska Press, 2004). Interrogating the Moral Contract … 279 make all colonial differences the same, as well as different. One result is that no matter how many “complexities and idiosyncracies” Aranda Jr. is able to draw out of Ruiz de Burton’s texts and life, she will continue to serve a critical agenda premised on assumptions of discrete cultural belonging, just as she did when she was twisted into a figure of mere dissent. Aranda Jr. thus misses the opportunity to imagine what all political subjects share in common, which is to say the moral contract, the very ideological and fictive ground of every possible Statist inclusion and exclusion. In my view, John González’s “The Whiteness of Romance,” published one year before Aranda Jr.’s essay, takes a more critically challenging approach to Ruiz de Burton’s work, particularly Squatter, because its energies are more directly invested in critiquing political ideologies and institutions such as liberalism. But here too there are problems. Drawing on José David Saldívar’s seminal work Border Matters, González at first appears to invite a reading along the lines of the moral contract. For example, he argues that Squatter reveals American liberalism as “only operative on the ‘white’ side of the color line” and, citing David Roediger, “not able to suggest alternatives to a reinscription of the national wages of whiteness” (González 164, 173). González has in mind here C. Loyal’s attempt to yoke the fate of the Californios to a nascent Anglo volk republicanism and the violent rejection of such efforts at solidarity by the Anglo squatters. 11 González argues, further, that “Communities marginalized by national hegemonies but nonetheless incorporated into racialized regimes of labor have actively contested the methodological and narrative legitimation of the nation” (173). Following Saldívar and Homi Bhabha, González recognizes beyond the outskirts of “national allegory’s hegemonizing project” a “persistent agency in contesting the establishment of national hegemony.” Without ascribing an attitude of resistance to Ruiz de Burton herself, as if in anticipation of Aranda Jr.’s critique, González recognizes in marginalized communities a willful refusal of “national hegemony,” or, in this case, white volk republicanism. For González, the Indian Chapo’s racial exclusion from the white nation, which in Squatter potentially includes the Alamars, “demonstrates the ideological necessity of excluding racialized labor within the narrative of national hegemony and simultaneously acknowledging the foundation of nationalism upon the labor of subordinated communities” (176). Racialized labor, González shows us, is at once excluded from and included in 11 I repeatedly make the point that the Anglo characters represent a certain liberal strain in contract. The individualism of liberalism and the tendency for group identity in republicanism are not mutually exclusive. Volk republicanism, for example, could affirm the liberal individual even while it proclaimed the superiority of the white race. 280 T IMOTHY D EINES the construction of white national hegemony. The ground is thus prepared to recognize in Chapo the figure of the always-already-excluded that is the essence of the moral contract. But things go in a different direction once González affirms Paul Gilroy’s double political strategy of national hegemonic resistance outlined in The Black Atlantic (1993): first, claim “participation within modern democracies and their Enlightenment claims of liberty, equality and fraternity”; second, keep “visible the historical limits of the politics of fulfillment and thus those of modernity itself” (González 179-80). In this way, the double inclusion/ exclusion of the “subaltern” is kept in play. Gilroy’s “historical limits” are “manifested in the groans and cries of … vernacular politics,” claims González (180). 12 Because González wants to think both sides of the limit of the State, he requires a concept that will allow him to do this. Hybridity, however undefined by Gonzalez, is that concept. 13 On the near side of hybridity lies the liberal State itself: “modern democracies and their Enlightenment claims.” On the far side of hybridity, the side of agency, González names, somewhat contradictorily, the “heterogenous, conflicted, hybrid” as the site for national hegemonic resistance (177). Hybridity thus really only stands for the “vernacular” (i.e., cultural/ racial), which is to say for “subordinated communities” themselves, whose politics are born “in the experiences of diaspora”; hybridity represents “forms of consciousness” of “transnational community” that are irreducible to “the juridical confines of the nation” (178). With this last phrase, “juridical confines,” González appears to name the State, but again conflates that concept with “nation.” The result is a two-fold confusion: first, as González’s reading of Chapo indicates, he cannot neglect the role of the State without ascribing particular cultural traits to subordinated populations, as when he claims, for example, that “Living on ‘Indian’ time isn’t living on nation time”; second, ironically, he cannot imagine a form of justice that does not fall within the orbit of the 12 It is interesting that González stresses the “groans and cries” of African-American and transatlantic histories instead of, say, anger and insurrection. After all, the danger that the excluded pose to “civilization” is the danger born of radical exclusion from the polis. In terms of literary characters, I am thinking more of Delaney’s Blake rather than Stowe’s Tom. Gilroy does not fail to make the connection. See Martin R. Delaney, Blake; Or, the Huts of America (Boston: Beacon Press, 1970), and Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (Cambridge: Harvard UP, 1993). For a fundamental reading as to why those legally excluded from the polis pose a fatal threat to it, see Hannah Arendt, Imperialism: Part Two of the Origins of Totalitarianism (New York: Harcourt, Brace & World, Inc., 1951: 170-182. 13 For a scathing denunciation of the logic of hybridity, see Scott Michaelsen, “Hybrid Bound,” rev. of Border Matters: Remapping American Cultural Studies, by José Saldívar, Postmodern Culture 8.3 (May 1998). <http: / / www3.iath.virginia.edu/ pmc/ textonly/ issue.598/ 8.3.r_michaelsen.txt>. Interrogating the Moral Contract … 281 State itself. Cultural identity is not about justice, for González, it is about political domination and resistance. And since cultural identity is the only basis for political activity for González, it is also the basis for the other, properly political dimension of Gilroy’s double strategy - affirmation of and inclusion within modern democracy and its Enlightenment claims. In short, subaltern cultural identity is viewed as absolute Other of the State and absolutely beholden to it for its political possibilities. IV. But what happens if we try to think about Squatter, in particular, and the State, in general, from the perspective of the State itself, through the fiction of the moral contract? Such an exercise may enable us to take stock of what is truly exceptional, quite literally, about the State form, and what this (moral) exceptionalism might mean for the problem of justice. Toward this end, this essay remarks two instances in Squatter in which State law institutes, or appears on its way towards instituting, a moral exception distinguishing the person from the nonor sub-person. The first instance is fairly conventional, and it involves a reading of key sections of The Treaty of Guadalupe Hidalgo. The second instance is, frankly, unorthodox, in that it tries to read the rise of monopolies in Squatter as the emergence of a kind of “race” that eventually finds State affirmation in the Fourteenth-Amendment. These examples serve a two-fold purpose: first, to show that the moral contract can manifest itself in whatever form; in other words, the stigmata of otherness can appear as fictional entities, like corporations, as well as “human” bodies (fictions in their own way). Second, the subor non-person can appear as a “positive” construction to be protected by the State; it need not only manifest itself as a being to be excluded and denied rights and liberties. In this way, the moral contract structures the interiority of the State as much as its exteriority. The first exception under consideration here takes a racial form, in the anthropological sense, and it refers us back to the figure of the Indian Chapo. Chapo’s scarce appearance in Squatter itself signifies, in part, his symptomatic status as an excluded figure of labor, everywhere working for the benefit of the Alamars and others but kept resolutely “off screen,” as it were, suppressed beyond recognition in the novel. In this sense, Chapo clearly serves as a metonym for the constitutive laboring subject of capital, as González might agree. But Chapo’s description by C. Loyal as a “lazy Indian” need not be read as a sign of subaltern resistance taking the form of “Indian time,” as González says, as if all Indians possess this sense as a result of the experience of oppression (258). Alternatively, the terms of 282 T IMOTHY D EINES Indian and Californio exclusion and their difference appear in the text of Guadalupe Hidalgo as the contingent epiphenomenal possibilities of the moral contract itself. We can thus recognize examples of the State’s means of moral exclusion and provide an account of the mechanism behind such exclusions, yet avoid a descriptive account of cultural belonging. Indeed, what this strategy seeks to avoid above all else is the reduction of being to the terms of the moral contract. 14 The Treaty of Guadalupe Hidalgo (1848) performs a central role in C. Loyal’s argument for U.S. federal recognition of Californio land rights. It provides the legal foundation for her contention that the property rights of the Californios should be protected against theft by squatters and the railroads. But the federal passage of the Land Act of 1851, which forced Californios and others to prove to the State that their land titles were legitimate, appears to contradict the terms of the Guadalupe Hidalgo. In the chapter entitled “The Don’s View of the Treaty of Guadalupe Hidalgo,” Don Mariano expresses his displeasure in this clash between the Guadalupe Hidalgo and the stipulations of the Land Act. Referring to the latter, he says, “There are some enactments so obviously intended to favor one class of citizens against another class that to call them laws is an insult to law…” (Ruiz de Burton 64). In contrast, Don Mariano expresses unbridled optimism about the terms of peace in Guadalupe Hidalgo. In response to the comment by George Mechlin, a white eastern gentleman engaged to one of Don Alamar’s daughters, that “the rights of the Spanish people were protected by [the treaty]” the Don points to “the foundation of the relations between conqueror and conquered,” that is, “the spirit of peace and friendship” (65). Further, he notes: “The treaty said our rights would be the same as those enjoyed by all other American citizens.” While Don Mariano recognizes that laws can favor one class over another, he does not see this possibility as being intrinsic to law as such. Indeed, he does not even see this possibility as being intrinsic to a peace agreement concluding a war. In this old problematic that situates declarations of abstract rights against the discrepancies of practical politics and history, we see the Don taking a stance that attenuates the discrepancies of history without abdicating the promise of law’s universality. In other words, he wants laws that are equitable and that meet the requirements of universal principles. It is therefore possible to imagine Don Mariano embracing the “spirit” of “peace” and “friendship” as general philosophical principles of law capable of standing on their own. This is no doubt another example of the Don’s commitment to natural law. But if we 14 This is not a contradiction of previous claims. While the moral contract, I argue, is constitutive of citizenship, it is not constitutive of being itself. Unfortunately, I cannot pursue the implications of such an idea here. Interrogating the Moral Contract … 283 consider that Guadalupe Hidalgo was founded all along on the moral contract, not natural law, then its double inclusionary/ exclusionary language begins to make a strange kind of sense. Article XI of the treaty, for example, begins by identifying the “savage tribes” living in Alta California as subject to force and punishment by the U.S. government should “incursions” into Mexico by these tribes occur (Treaty 190). Specifically, this article seeks to establish the United States’s “true spirit and intent” in protecting any Mexican property, including slaves, from being bought and sold where it had been previously stolen by Indians. The document is careful to point out that the U.S. federal government will take the preemptive measure, “when providing for the removal of Indians from any portion of the said territories,” “not to place [these] occupants under the necessity of seeking new homes” (191). At best, this means that by removing Indians from federal territories the government intends effectively to quarantine [i.e., remove to reservations] them from any possibility of contact with Mexican properties. At worst, it means extermination. And the worst was what happened. According to Griswold del Castillo, after 1848, “The Indian population within the state [of California] declined by more than 100,000 in two decades” (Griswold del Castillo 69). Article XI is a clear example of the moral exclusion (of Indians) that makes political inclusion (of Mexicans) possible. Here, “Indian” simply represents the savage condition of possibility for the civilized political recognition of Mexicans as persons capable of owning property, among other rights and liberties. 15 This discrimination in Guadalupe Hidalgo between “Indians” and “Mexicans” is indicative, I am suggesting, of a simple structural exclusion constitutive of legal (i.e., State) identity. But this structural problem has its necessary temporal corollary. For González, this is where the subaltern’s cultural agency appears. But there is another way of approaching this problem. The moral contract, in addition to being exclusive as a matter of structure, also has a performative or agential dimension, but it is not the performance of “culture.” Rather, it is the performance of the decision against the fabric of law. Consider, for example, Article IX of the ratified version of Guadalupe Hidalgo: The Mexicans who … shall not conserve the character of citizens of the Mexican Republic … shall … be admitted, at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property … . [emphases added] (Treaty 190) 15 It is noteworthy that California Indians were Mexican citizens under the Mexican Constitution of 1824 (Griswold del Castillo 69). They were clearly denied this status in Guadalupe Hidalgo. 284 T IMOTHY D EINES In “Force of Law,” Jacques Derrida says that “every constative utterance relies, at least implicitly, on a performative structure” and that “the dimension of justesse or truth of theoretico-constative utterances … always thus presupposes the dimension of justice of the performative utterances … which never proceeds without a certain dissymmetry and some quality of violence” (256). This is true “particularly in the domain of the theory of law.” In Article IX, we see the temporal supplement to Article XI. First, citizenship is promised to Mexicans, and with it the full schedule of rights accorded by the Constitution. But this promise is not precisely constative, since the statement is not strictly illocutionary, that is, the statement does not itself effect the promise of citizenship - it simply registers a promise. Cutting across this promise are contradictions of time and decision: “at the proper time; “in the meantime”; “to be judged of by the Congress of the United States.” If Mexicans remaining in the United States will be extended citizenship at the proper time, what guarantees their protection in the mean time? In other words, if the full force of the Constitution is deferred for these potential citizens until the “proper time,” what force of law will protect them until that time? One might call this necessarily deferred promise of citizenship an example of mere law without the justesse of the performative utterance. Significantly, this notion of “proper time” is dependent on congressional decision, and this decision will in fact be dissymmetrical to the promise that it is intended to keep - which was that “The Mexicans” shall be admitted at the proper time. But decisions take time because information must be gathered, beings sorted out, criteria for membership created and met, protocols and procedures instituted. Who, for example, is “Mexican”? Who has voluntarily given up their Mexican citizenship in exchange for American citizenship? The difference between mere law and the force, or decision, of that law means that there can be no “horizon of expectation” with respect to the content of the actual decision (Derrida 256). The time it takes to make a decision - and the decision must take time - means that “some quality of violence” will emerge at the moment of decision. This is because no authentic or responsible decision is possible which does not in some shape or form distinguish itself from the legal norm upon which it decides. This act of distinction, or criticism really, is violent. And this violence is necessary for political progress itself: “each advance in politicization obliges one to reconsider, and so to reinterpret the very foundations of law such as they had previously been calculated or delimited” (257). Two points emerge from this discussion: the first is that the moral contract, in this case taking the epiphenomenal form of Articles XI and IX in Guadalupe Hidalgo, requires a structural exclusion for its internal consistency; the second point is that this structure itself depends upon a performative decision in time that reiterates and thus reaffirms the initial Interrogating the Moral Contract … 285 structural inclusion/ exclusion. Articles XI and IX represent a kind of literal performance of this two-fold necessity. In this way, we can recognize the philosophical significance of the Land Act of 1851 with respect to Guadalupe Hidalgo. The Land Act, rather than contradicting the terms of Guadalupe Hidalgo, actually represents the “truth” of the treaty, insofar as the latter is founded upon the moral contract. Michaelsen writes: “if [the moral contract] cannot be eliminated, and if a legal order always must think, first at the moment of its founding and incessantly thereafter, about the question of its own interiority/ exteriority, then the question of ‘race’ and its many analogues … remain in play” (103). The Land Act of 1851 is an example of this “incessantly thereafter.” The moral exception of the financial corporation in the law functions no differently, but this time the exception is included with the polis and benefits from that inclusion. In Squatter, it is this exception, more broadly ruinous than the Land Act, that ultimately threatens C. Loyal’s future vision for the United States. Conversely, the Indian exception in Guadalupe Hidalgo is wholly forgotten in the text. If the Indian Chapo represents the excessive, forgotten remainder of the moral contract’s racial exception in Squatter, then the corporation proper represents the excessive remainder of the “racial” exception’s inclusion within the moral contract. Specifically, for Squatter, if Chapo figures as but one of an open set of moral exclusions necessary for the construction of the liberal State and is membership, then the corporation figures as the last inclusion that may spell the demise of the State’s economic viability. C. Loyal reserves some of her strongest invective for the “dangerous citizens,” the corporate monopolies. The corporation subverts “the fundamental principles of public morality,” she says, and their bad example “is deadly to honorable sentiments,” leading to other unfair economic practices. The corporation follows the code of “BUSINESS,” Doña Josefa, Don Mariano’s wife, tells us, which “justifies in the pursuit of riches everything mean, dishonest, rapacious, unfair, treacherous, unjust, and fraudulent” (335). This kind of “business” violates Doña Josefa’s “sense of justice and her ideas of moral adjustment of men’s actions with principle …” (335-6). 16 The corporation is bad because it practices, in Don Mariano’s words, contract without equity. It arrogates to itself the assumptions of possessive individualism, which is to say of liberalism, but it rejects the checking role of republican virtue, or equity, on the individual’s right to contract. Squatter 16 These anti-“business,” anti-corporate sentiments expressed by C. Loyal and Doña Josefa should not be interpreted as inimical to contract. Laissez-faire economic philosophy, which the Alamars and C. Loyal embody to some extent, could coexist quite easily with anti-corporate sentiment. I thank Brook Thomas for this reminder. 286 T IMOTHY D EINES argues this problem strictly on moral grounds, however. Therefore, at issue in the novel is not how the moral contract can supply the necessary terms for the legal conception of the corporation. Rather, Squatter concerns itself with an injured moral sensibility with respect to normative uses of labor and capital. Morality and law thus get conflated, and the result is that any capitalist practice injurious to a certain sense of fairness, a feeling of equity, is deemed illegal. But the very terms of the corporation’s legal empowerment do reflect liberal precepts of the individual. Such a phenomenon represents a rather strange example of how the moral contract can be used to create, in quasi- Frankensteinian fashion, “persons” that are not human but nevertheless count as citizens. Consider Mr. Mechlin’s, a friend of Don Mariano’s, (non)anthropocentric description of the corporation: These men - this deadly, soulless corporation, which, like a black cloud, has shut out the light from San Diego’s horizon - will evermore cast the shadow that will be our funeral pall. But let them look to it; they might yet carry their heartless rapacity beyond limit. The mighty monopoly, that has no soul to feel responsibility, no heart for human pity, no face for manly blush - that soulless, heartless, shameless monster - might yet fall of its own weight. (Ruiz de Burton 296) This is highly suggestive language. The plural “men” in apposition with the singular “corporation” reflects the deadening effect that the corporate absorption of the individual has on “real” individuals themselves. Precisely what makes the corporation what it is, in this passage, is its lack of sentiment, which was described earlier in terms of equity. The corporation cannot feel; it has no heart; nor can it blush. It is the corporation’s fundamental opposition to equitable contract that makes it monstrous. The corporation has always had a “monstrous” history, at least from the time of Dartmouth College v. Woodward (1819). In this decision, Marshall famously described the corporation as “an artificial being … existing only in contemplation of the law” (Dartmouth College 257). “[T]he mere creature of law,” the corporation may possess any quality that a state charter may decide to ascribe to it. Marshall says that “the most important of these are immortality, and, if the expression may be allowed, individuality.” Such attributes enable a corporation to practically “act as a single individual” in the face of the changing plurality of “real” individuals with it. In Santa Clara Co. v. South Pacific Railroad (1886), published one year after Squatter, the Supreme Court decided negatively that this immortal soul, however fictitious, was indeed a “person” and privy to due process and equal protection, just like actual human persons: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We Interrogating the Moral Contract … 287 are all of opinion that it does” (qtd in Horwitz 173-4). 17 Notwithstanding Morton Horwitz’s claim that this “decision” (Justice Waite’s statement actually precedes and introduces the ruling of Santa Clara) is “totally without precedent,” there does appear a rather remarkable relation between the law and personhood, specifically the law’s role in the creation of personhood. We have seen above how Guadalupe Hidalgo instituted certain terms of humanity itself. While Mexicans figured ambiguously in those terms, the same was not true for Indians. They were baldly excluded as savages. In the case of corporations and their legal history, the question is to what extent they participate in a similar moral process of inclusion and exclusion. The judges in Santa Clara could have decided, for example, that corporations are not legal persons and, therefore, do not share the same rights as flesh and blood citizens. After all, what we are dealing with is historical contingency, not necessity. Here, the significance of the State’s recognition of corporate personhood lies in the possibility that it may be but one more epiphenomenon of the moral contract. If the moral contract exists, then its sole purpose is to separate the legitimate members of political community from illegitimate members. In the context of corporate citizenship, Oldfield’s remark that “to remain a citizen one cannot always treat everyone as a human being” thus takes on an even greater significance. It not only suggests that citizens need not be “human beings,” as in the case of the corporation, it also implies that “human beings” themselves are constructs subject to the disciplinary apparatuses and functions of the State. These apparatuses and functions are part and parcel of the moral contract. V. In conclusion, I want to remark two astonishing moments in the novel, amplified by their arrival on the very final pages. To review, briefly: C. Loyal’s pleas for equity have gone unheeded by the railroad corporation, and both “squatter” and “don” are crushed by this newly emerging, monstrous form of corporate contract. Having exhausted her call for equity, C. Loyal does not know which way to turn. Perhaps her narrative strategies 17 Some of these points have been hotly contested in legal scholarship since the days of Santa Clara. Horwitz, for example, in a recent article, does not believe that Santa Clara marks any significant point of departure from Dartmouth College concerning the legal theory of the corporation. He also contests the often-voiced suspicion that the 14th Amendment was really passed on behalf of corporate enrichment, not African-American political equality. Long before Horwitz, Arthur W. Machen, Jr. and John Dewey took up the philosophical question of the corporation’s status as a personality. 288 T IMOTHY D EINES have failed, as González and Kate McCullough suggest, and she is able to do nothing but recapitulate what may be the single most conservative narrative gesture in all of modern literature - the wedding. It is as if C. Loyal’s jeremiad fails to convince even her, as no legislation appears forthcoming that can right the wrongs of the Californios, and so she completes her fantasy-marriage of equity and contract in one form while abandoning it as a viable historical possibility. Despairing that the State possesses the will to stop the corporate takeover, she can only hope for a miracle: “If they do not [legislate accordingly], then we shall - as Channing said - ‘kiss the foot that tramples us! ’ and ‘in anguish of spirit’ must wait and pray for a Redeemer who will emancipate the white slaves of California” (Ruiz de Burton 344). The racial qualifier should not come as much of a surprise. Part of Squatter’s racial strategy all along has been to align Californios and Anglos along the axis of whiteness, since such a local majority might, on the one hand, have persuaded the Anglo squatters to quit squatting and, on the other hand, forced the corporations to respect this majority’s will. The call for a Redeemer is the real surprise. It is a call, in effect, for divine intervention in a legal domain that has driven nearly everyone in the novel to the wall by virtue of what has been repeatedly called the moral contract. The real irony here, as Guadalupe Hidalgo shows, is that C. Loyal pinned her hopes to the moral contract only to have it, in Don Mariano’s words, recoil upon her more cruelly. To complicate matters somewhat, there is a second call for intervention directed squarely against the immoral monopolists: “It seems now that unless the people of California take the law into their own hands, and seize the property of those men, and confiscate it, to reimburse the money due the people, the arrogant corporation will never pay” (Ruiz de Burton 338). For C. Loyal, “the people” means Anglos and Californios, as we have seen. The moral contract has meant the exclusion of Indians, for example, in the form of Guadalupe Hidalgo. 18 How might we think about the narrator’s call for a religious intervention, on the one hand, and a populist/ democratic intervention, on the other? Perhaps the first thing to say is that these are calls for justice. The question of equity - “the sort of justice that goes beyond the written law” - therefore returns at the end of Squatter as a kind of final appeal for justice. In this sense, C. Loyal simply repeats an argument she has made in other forms throughout the novel. But another question immediately emerges: what kind of equity is it that comes in religious and populist forms, if these are indeed calls for such justice, rather than in the form of a judge’s conscience, for example, or other traditional guises of equity? Strictly speaking, it is difficult to characterize these interventions as equity at all, since equity, 18 The moral contract was renewed once more in 1882 with the Chinese Exclusion Act. Interrogating the Moral Contract … 289 historically, has always played a recognizable role with respect to law, specifically common law. Something rather more drastic is being considered here. The first call for a Redeemer recalls Carl Schmitt’s insight that “All significant concepts of the modern theory of the state are secularized theological concepts,” and that, historically, “the omnipotent God became the omnipotent lawgiver” (Political Theology 36). C. Loyal’s call for a redeemer may therefore also be understood, in secular terms, as a call for the renewal of law by an omnipotent lawgiver. Such a desire would not be foreign to C. Loyal’s discourse, which repeatedly invokes the need for wise rulers. But can such renewal occur democratically, and what would democracy mean in this case? C. Loyal’s call for “the people” to take the law into its own hands certainly carries overtones of populist vigilantism. Would such a movement be undemocratic? It all depends on how one conceives democracy. The illiberal Schmitt, for example, characterizes democracy as resting “on the principle that not only are equals equal but unequals will not be treated equally” (The Crisis of Parliamentary Democracy 9). He continues: “Democracy requires, therefore, first homogeneity and second - if the need arises - elimination or eradication of heterogeneity.” Given Schmitt’s own historical circumstances, such a definition provokes a certain terror. But what if there is some truth to such a formula? What if democracy, in one form or another, has always only been possible as the result of a moral contract, for example, that supplies the terms for homogeneity, on the one hand, and heterogeneity, on the other? Such is the dilemma which caused Derrida, for example, to never stop thinking about a democracy, and a justice, to come. Such is the dilemma that Ruiz de Burton’s novel also gives us to think. 290 T IMOTHY D EINES Works Cited Arendt, Hannah. Imperialism: Part Two of the Origins of Totalitarianism. New York: Harcourt, Brace & World, Inc., 1951. Balibar, Etienne. “Is There a ‘Neo-Racism’? ” Race, Nation, Class: Ambiguous Identities. E. Balibar and E. Wallerstein. Trans. C. Turner. London: Verso, 1991. 17-28. “Dartmouth College v. Woodward.” American Democracy: A Documentary Record, Volume I: 1620-1865. Eds. J.R. Hollingsworth & B.I. Wiley. New York: Thomas Y. Crowell Company, 1961. 256-61. Delaney, Martin. Blake; Or, the Huts of America. 1861. Boston: Beacon Press, 1970. Derrida, Jacques. “Force of Law: The ‘Mystical Foundations of Authority’.” Acts of Religion. Ed. G. Anidjar. Trans. M. Quaintance. New York and London: Routledge, 2002. 228-298. Dewey, John. “The Historic Background of Corporate Legal Personality.” The Yale Law Journal 35.6 (1926): 655-73. Friedman, Lawrence M. A History of American Law. Third edition. New York: Simon & Schuster, 2005. Gilroy, Paul. The Black Atlantic: Modernity and Double Consciousness. Cambridge: Harvard UP, 1993. González, John M. “The Whiteness of Romance: The Cultural Politics of Racial Formation in María Amparo Ruiz de Burton’s The Squatter and the Don.” In the Wake of Reconstruction: National Allegory and Narrative Form: 1877-1907. Dissertation. Stanford University, 1997. 131-73. Griswold del Castillo, Richard. The Treat of Guadalupe Hidalgo: A Legacy of Conflict. Norman & London: University of Oklahoma Press, 1990. Horwitz, Morton J. “Santa Clara Revisited: The Development of Corporate Theory” 88 West Virginia Law Review 173 (1985-6): 173-224. Machen, Jr., Arthur W. “Corporate Personality.” Harvard Law Review 24.4 (1911): 253-67. McCullough, Kate. Regions of Identity: The Construction of America in Women’s Fiction, 1885-1914. Stanford: Stanford University Press, 1999. Michaelsen, Scott. “Hybrid Bound.” Rev. of Border Matters: Remapping American Cultural Studies, by José Saldívar, Postmodern Culture 8.3, May 1998 <http: / / www3. iath.virginia.edu/ pmc/ textonly/ issue.598/ 8.3.r_michaelsen.txt>. Mills, Charles W. The Racial Contract. Ithaca & London: Cornell UP, 1997. Oldfield, Adrian. “Citizenship and Community: Civic Republicanism and the Modern World.” The Citizenship Debates. Ed. Gershon Shafir. Minneapolis: University of Minnesota Press, 1998. 75-89. Ruiz de Burton, María Amparo. The Squatter and the Don: A Novel Descriptive of Contemporary Occurrences in California. 1885. Eds. R. Sánchez and B. Pita. Houston: Arte Público Press, 1997. Saldívar, José David. Border Matters: Remapping American Cultural Studies. Berkeley: University of California Press, 1997. Sánchez, Rosaura. Telling Identities: The Californio Testimonials. Minneapolis and London: University of Minnesota Press, 1995. Sánchez, Rosaura and Beatrice Pita. “Introduction to The Squatter and the Don.” The Squatter and the Don. Eds. R. Sánchez and B. Pita. Houston: Arte Público Press, 1997. 7-49. Schmitt, Carl. The Crisis of Parliamentary Democracy. 1923. Trans. E. Kennedy. Cambridge and London: The MIT Press, 2000. Interrogating the Moral Contract … 291 —. Political Theology: Four Chapters on the Concept of Sovereignty. 1922. Trans. G. Schwab. Cambridge and London: The MIT Press, 1988. Smith, Rogers M. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven and London: Yale University Press, 1997. Thomas, Brook. American Literary Realism and the Failed Promise of Contract. Berkeley: University of California Press, 1997. The Treaty of Guadalupe Hidalgo, as Ratified by the United States and Mexican Governments, 1848. Appendix 2. Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo: A Legacy of Conflict. Norman & London: University of Oklahoma Press, 1990. 183-99.