Symposium Response Part 1: The strange career of civil rights

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Dylan C. Penningroth

Many thanks to Jack Balkin and Balkinization for hosting this symposium. I’m grateful to Carol Rose, Evelyn Atkinson, Ian Ayres, Mark Graber, Mark Tushnet, and Steve Griffin for taking the time to read and provide such probing comments on Before the Movement. It has taken me awhile to post my response, in part because it has been so much fun to absorb and learn from their comments.

The contributors beautifully bring out several of the book’s main themes, and space allows me to touch on only some of their constructive critiques. The first, as Professor Griffin notes, is how Black people used and thought about law from the 1830s to the 1970s, how a subset of nineteenth-century rights and privileges came to be understood as “civil rights,” and how that term, over the next century or so, slowly came to stand for the principles of nondiscrimination and anti-humiliation that animate much of modern civil rights law. If had been more daring and witty, I might have titled the book “The Strange Career of Civil Rights.”[1]

The second theme is the sources I used to tell this story. Of course, I am far from the first historian to go asking big questions of small courts. Since the early 2000s, a number of legal historians have made the trek to the courthouse door, including Laura Edwards, Melvin Ely, Sarah Barringer Gordon, Martha Jones, Anne Twitty, Kimberly Welch and, more recently, Sarah L. H. Gronningsater. Aside from the physical and logistical challenges of researching in under-funded facilities that are not really “archives,”[2] all of us have confronted the analytic and conceptual challenges of taking the legalities latent in local court records and relating them to the “mandarin materials,” as Robert Gordon termed them, of appellate case law, statutes, and treatises.[3] But increasingly, on days when I walked past the inevitable Confederate statue to beg another circuit clerk’s permission to rummage around in the courthouse attic, I felt the presence of a different intellectual tradition than perhaps the ones we had been trained in; that we were actually following in the footsteps of earlier generations of Black historians, who had to negotiate with the gatekeepers of official records in the unfathomably harsher environment of the 1930s and 40s. Only a few of those earlier historians were professional scholars, like Luther Porter Jackson. Mostly they were lay historians—church officers, like A.M.E. Bishop Richard R. Wright,[4] or lawyer-memoirists, like Thomas Calhoun Walker,[5] or keepers of family history, like my great-great-uncle Thomas Holcomb. What they wanted to demonstrate was that, right in the maw of a nation dedicated to white supremacy, “free Negroes” and their descendants had “made a record” of achievement in education, landownership, and trade.[6] And they believed that record entitled them to “the good will and respect of [their] neighbors and fellow citizens,”[7] as Jackson put it—or what activists called “public rights”[8] or “first-class citizenship.”[9] These earlier Black historians’ linking of common-law rights to “classes” of citizenship eventually helped inform my argument about how the idea of civil rights changed. Often stuffed with thumbnail sketches and hopeful statistics about Black churches and property ownership and literacy, these works were more than mere “encyclopedic pep talks” or “storehouses of uplift ideology” in the mold of Booker T. Washington.[10] Whatever else they were, they also hinted at a history of Black legal thought, one that seemed to me to be in dialogue with questions of racial justice but not contained by them. More immediately, those early Black historians seemed to suggest that there were certain continuities across the gulf of the Civil War: that white people more or less took it for granted that Black people could own and trade things.[11] That, at least in the realm of civil rights, the transformation came gradually, raggedly, and perhaps rife with irony.

We might explain this continuity in terms of ideology—specifically, white people’s investment in the belief that law was not (just) an instrument of class power. More frequently, as Professor Graber points out, I look to Derrick Bell’s interest-convergence theory. This was a “triumph of informal property over formal law,” Professor Rose writes, where wide swaths of white southerners—including huge numbers of non-slaveowning whites—enjoyed easy access to cheap, convenient goods and services from enslaved Black people, an enjoyment procured not (just) through “brute compulsion” but through legal marginality and indeterminacy.[12] White southerners benefited precisely from the law’s refusal to speak clearly and consistently about slaves’ property and contracts. (To which I would add that there are uncomfortable resonances with the benefits American citizens enjoy from the work of undocumented immigrants today.)

In my first book, I described enslaved people’s property as “extralegal.”[13] Researching Before the Movement changed my mind: enslaved people’s privileges had legal meaning, indeed were constituted through law, not in the absence of law or in spite of law. What law? As Professor Tushnet intuits, the book is deeply influenced by scholarship on legal pluralism, though more through studies of colonialism in Africa than literature in dialogue with Ernst Fraenkel’s conception of the dual state in Nazi Germany.[14] So, although I think African Americans did develop their own distinctive ideas about property, and I agree that “Black-specific legal concepts” like “the ignorant negro” surfaced more explicitly in the South than elsewhere, as Professor Tushnet’s modified version of Fraenkel’s “dual state” theory might predict, I am just as fascinated by the ways Black-owned property was rooted in something broader—in what Arthur Corbin called “community opinion,”[15] the “sense of the situation”[16] that was shared in common by all “members of the community,”[17] not just by Black people or enslaved people. And I am equally fascinated by the furtive struggle hidden beneath that sunny Realist conception of legality, where some “members of the community”—women, poor white men, free Black people, enslaved people, young people—had far less power to mold “community opinion” than others. If Laura Edwards is right that nineteenth-century law was not just for people with rights,[18] I think this was largely because rights themselves existed in a thick network of shared understandings and symbolic acts: recording, talking, using, and showing. But also because, as Kate Masur reminds us, privileges still carried legal weight in the nineteenth century.[19] Slaves held certain prerogatives that were typically referred to as privileges, not rights, but that were nevertheless legally meaningful to the extent they comported with “community opinion”—furtively contested and riven by hierarchies of sex, race, age, and class—both of specific practices and of general legal principles.

Antislavery Republicans “popularized the idea that the law was not present in the relationship between slaves and their masters,” as Professor Griffin nicely puts it. They drew a sharp line between slavery (a law-free zone of no-rights) and freedom (the world of rights). In doing so, they abandoned not only the eighteenth-century politician’s “broader, antirepublican concept of slavery” as “illegitimate domination, political subordination, and the absence of republican government,”[20] but also the ordinary American’s long experience with the world of privileges, a world in which slaves could participate. This abandonment is a key reason why the framers of the Reconstruction amendments could assume “that slavery could be removed from the legal order without changing much of anything else”[21]—and why it seems surprising today that slaves could have owned property.

As Professor Rose perceptively draws out, Before the Movement charts the rights/privilege distinction over the long durée, trying to show how, over and over, the world of privileges was renewed—not swept away—by the coming of Black rights. The book thus levels a challenge to Eric Foner’s reigning interpretation of Reconstruction as an “unfinished revolution”^[22] where millions of Black free and freedpeople asserted a grassroots constitutional vision of economic autonomy, political equality, and national protection for individual rights.[23] The “unfinished revolution” thesis, along with its close conceptual cousin ‘bottom-up constitutionalism,’ has been foundational for my thinking about political economy. But much of what I found in the county courthouses required different assumptions and concepts, ones better suited for thinking about legalities that were conceived in local, not national or constitutional terms, and about dimensions of Black life that were not primarily about race relations. I looked for inspiration from people like Jackson, Wright, and my own relatives—a Black intellectual tradition that complements but stands somewhat distinct from the Du Boisian approach that inspired Foner. As much as Reconstruction was about competing visions of freedom, and as much as the Fourteenth Amendment was shaped by grassroots constitutionalism, neither freedom nor the Fourteenth Amendment changed very much about the property law or contract law that people encountered in their daily lives. Indeed, its Republican proponents strenuously denied any intention to give Congress power to interfere with the states’ vast corpus of statutes and common-law rules, except those that arbitrarily discriminated between classes of citizens.[24] And although I did not stress it in Before the Movement, centering the world of the civil also raises questions about the revolutionary character of the Second Reconstruction. Such continuities may prove instructive as scholars bring these classic private-law domains into conversation with the nominally public-law domain of antidiscrimination.[25] This is also why, although the book avoids what Professor Graber dubs the “racial rule of thermodynamics,” I wouldn’t necessarily see it as a “largely uplifting story.” I may not be an Afropessimist[26] but I don’t think I am a constitutional optimist,[27] either!