The Washington PostDemocracy Dies in Darkness

The right to joy and pleasure is a crucial element of racial justice

Addressing systemic racism and state violence is not enough.

Clockwise from rear left: Nipsey Russell, Harry Belafonte, the Rev. Martin Luther King Jr. and Coretta Scott King at an Alabama airport in 1963. (Ivan Massar/Take Stock/The Image Works/HBO)

Questions of justice for Black Americans have understandably focused on major issues such as systemic racism or state violence. But another dimension to racial justice is perhaps too frequently overlooked: the right to pleasure. While Black abolitionist David Walker was already invoking the Declaration of Independence’s claim to the “pursuit of happiness” in the late 1820s, a formal centering of Black people’s legal right to pleasure became even more explicit at the Civil War’s end. The champions of Black people’s rights understood that the right to literally make themselves feel good was — and remains — critical to the quest for freedom and equality as full people. Today, champions of justice and equality cannot afford to ignore that right’s robust historical and legal roots, especially as laws continue to be interpreted in ways that suggest otherwise.

An appreciation for the legal codification of Black people’s pleasure requires a fuller understanding of the first major constitutional step toward ensuring their personhood: the 13th Amendment. The amendment was to abolish not only slavery itself, but also all of that institution’s sprawling vestiges. The amendment, moreover, explicitly empowered Congress to ensure as much.

Framed differently, the amendment conferred freedom to Black people, and it was intended to do so in the most expansive sense.

Black people themselves understood this freedom bestowed by the 13th Amendment to include the pursuit of pleasure. After its passage, Black people loved, played, worshiped and rested, all with special zeal. Well beyond a life without forced physical bondage, this was the kind of free and pleasure-seeking life they imagined the amendment had formally granted.

The amendment’s architects agreed. The purpose, according to the amendment’s co-author, Sen. Lyman Trumbull, was not “simply to take away the power of the master over the slave.” Trumbull asked outright: “Did we not mean something more?”

The legislative steps Congress urgently took under the new powers granted to it by the amendment reinforced that, in fact, lawmakers did mean something more. Congressional leaders spoke of such legislation in ways that envisioned a freedom that generously encompassed a concern for Black people’s security of pleasure. One senator, for example, lamented the fact that one of the “necessary incidents and peculiar characteristics of slavery” had been the “abrogat[ion]” of married Black couples’ sexual liberty. He was, of course, alluding to the fact that one of slavery’s common features was that those enslaved were forced to procreate or otherwise subjected to unfathomable sexual violence.

The amendment’s authors were clear that these “badges of servitude” — many of which similarly dictated the terms under which Black people could experience pleasure — had to be “purge[d].” The legislative aim to illuminate the 13th Amendment’s overall goal was clear: “[W]e must see to it that the man made free … is a freeman indeed,” in all aspects of daily life, including, but certainly not limited to, a Black person “work[ing] when and for whom he pleases.”

The Civil Rights Act of 1866 attempted to begin doing just that. Grounded in the 13th Amendment and designed to outline free Black people’s rights with respect to contract, property and security of the person, it was the nation’s first civil rights legislation and intended to safeguard for Black people what Trumbull called a “practical freedom.”

“But this is not enough,” remarked another antislavery senator, Charles Sumner. He and others wanted even more legislative guarantees that expressly centered a right to pleasure for Black people, ultimately culminating in the supplementary Civil Rights Act of 1875. It was also partly grounded in Congress’s 13th Amendment power and was the nation’s first affirmative grant of what scholars have dubbed “pleasurable liberties” and rights. The act granted “full and equal enjoyment” to places like theaters and “other places of public amusement” that legislators described as promoting the “pursuit of happiness.”

The members of Congress responsible for such legislation explained that as “important as it is to testify and to vote,” Black people were “called to travel for business, for health, or for pleasure” and “long[ed], perhaps, for respite and relaxation at some place of public amusement.” Historian Amy Dru Stanley notes that such views represented a shift to a “pleasure economy” for Black people, ultimately enshrining the “fundamental right to be an amusement seeker.”

Of course, legislative intent does not determine a law’s constitutionality. Indeed, eight years after the 1875 act, the Supreme Court struck down the legislation as unconstitutional. The court characterized the right to amusement as a “social right” and therefore outside of Congress’s legislative purview. For the Supreme Court, a right to pleasure simply did not go to the “essence of citizenship” for Black people. That decision enabled the rise of the Jim Crow era, wherein entertainment and leisure options for Black people suffered under a regime of racial segregation.

The Civil Rights Act of 1964 would pick up the mantle nearly a century later, albeit under Congress’s “commerce power” this time. That act would ensure entitlement to the full and equal enjoyment of places of public amusement: theaters, concert halls, stadiums and other such venues.

Soon after the Civil Rights Act of 1964, the Supreme Court endorsed a more expansive understanding of the 13th Amendment. In the 1968 Supreme Court case, Jones v. Alfred H. Mayer, which concerned housing discrimination, the court channeled the spirit of the amendment’s original goals and emphasized Congress’s power to legislate in order to eradicate “all badges and incidents of slavery.” The court explained, for example, that “when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.” The Jones case thus reinforced the same capacious understanding of freedom under the 13th Amendment that its drafters intended: a vehicle by which all of slavery’s various remnants, including the deprivation of pleasurable liberties, would be remedied.

No Supreme Court ruling has significantly disrupted Jones or the heart of the 1964 Civil Rights Act since.

And yet there remains a tendency to cast a focus on the Black pursuit of leisure as lacking in purchase — as not only without legal grounding, but also unimportant, or even counter to other, more noble racial justice causes.

Pleasure and Black personhood, however, have historically been linked, and remain so today. What feminist scholar Brittney Cooper proclaims for Black women — that “there is no justice … without pleasure” — is, on some level, true for all Black people. Ending police brutality and systemic racism are obviously the kinds of important goals that demand a relentless commitment. But that is not enough. Antislavery political leaders knew, and we would do well to be reminded, that fully recognizing Black people’s humanity includes placing value on their inherent right to fun, to be delighted.

A full realization of that long sought-after right is still owed to Black people.