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!
[1]
With apologies to C. Vann Woodward.
[2]
These challenges are memorably described in Kimberly M. Welch, Black
Litigants in the Antebellum American South (Chapel Hill, 2018), 6-8.
[3]
Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36,
no. 1-2 (1984), 120.
[4]
The Encyclopaedia of the African Methodist Episcopal Church, comp. Richard
R. Wright (Philadelphia, 1947). Bishop Wright had a PhD in Sociology from Penn.
He was editor of The Christian Recorder, the newspaper of the A.M.E.
Church, president of Wilberforce University.
[5]
Thomas C. Walker, The Honey-Pod Tree: The Life Story of Thomas Calhoun
Walker (New York, 1958).
[6]
Luther Porter Jackson, “Free Negroes of Petersburg, Virginia,” Journal of
Negro History 12 (1927), 368.
[7]
Jackson, “Free Negroes of Petersburg,” 382.
[8]
Rebecca J. Scott, “Public Rights, Social Equality, and the Conceptual Roots of
the Plessy Challenge,” Michigan Law Review 106, 5 (2008), 781.
[9]
Martin Luther King Jr., “The Rising Tide of Racial Consciousness” (1960), in
A Testament of Hope, 148 (“first-class citizenship”); Walker, The
Honey-Pod Tree, 182-83 (“full citizenship rights”).
[10]
That is how these works are characterized in David W. Blight, Race and
Reunion: The Civil War in American Memory (Cambridge, Mass., 2001), 333
[11] Luther Porter Jackson, Free Negro Labor and
Property Holding in Virginia, 1830–1860 (Appleton-Century, 1942), 31–32.
[12]
Professor Rose’s comments about monitoring and supervision costs remind me just
how much my thinking about these issues has been informed, often
half-consciously and indirectly, by economic historians. In the 1990s, when I
was in graduate school, questions about the origins and logic of property-owning
by slaves were aimed at illuminating the organization of enslaved labor (task
versus gang systems) and its impact on the economics of slavery. For example,
supervision costs (or “policing,” as Barzel terms it), are key to Philip D.
Morgan, “Work and Culture: The Task System and the World of Lowcountry Blacks,
1700-1880,” William and Mary Quarterly 39, no. October (1982): 563-99.
[13]
Dylan C. Penningroth, The Claims of Kinfolk: African American Property and
Community in the Nineteenth-Century South (Chapel Hill, 2003).
[14]
The intellectual lineages are helpfully distinguished in the article Professor
Tushnet flagged in his post: Michael McCann and Filiz Kahraman, “On the
Interdependence of Liberal and Illiberal/Authoritarian Legal Forms in Racial
Capitalist Regimes…the Case of the United States,” Annual Review of Law and
Social Science 17 (2021), 485. I was in graduate school puzzling my way
through Africanist literatures on slavery and colonial rule when I encountered Hendrik
Hartog, “Pigs and Positivism,” Wisconsin Law Review, no. 4 (1985),
899-935.
[15]
Arthur Linton Corbin, Corbin on Contracts: A Comprehensive Treatise on the
Working Rules of Contract Law, vol. 1A (St. Paul, 1963), § 230.
[16]
Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules
or Canons About How Statutes Are to Be Construed,” Vand. L. Rev., vol. 3
(1950), 397.
[17]
Max Radin, “The Theory of Judicial Decision: Or How Judges Think,” A. B. A.
J. 11, no. 6 (1925), 362.
[18] Laura F. Edwards, The People and Their Peace:
Legal Culture and the Transformation of Inequality in the Post-Revolutionary
South (Chapel Hill, 2009).
[19]
Kate Masur, An Example for All the Land: Emancipation and the Struggle over
Equality in Washington, D.C. (Chapel Hill, 2010), 6-7 (“the focus on
federal legislation and constitutional change has kept our range of vision
narrow, drawing attention to individual rights and away from older but still
important convictions about group identities and the privileges of local
citizenship”).
[20]
Jack M. Balkin and Sanford Levinson, “The Dangerous Thirteenth Amendment,” Colum.
L. Rev. 112, no. 7 (2012), 1462, 1482-84.
[21] Laura F. Edwards, A
Legal History of the Civil War and Reconstruction: A Nation of Rights (New
York, 2015), 124.
[22] In 1988, Foner was refuting a once-dominant scholarly
tradition that emphasized “how essentially nonrevolutionary and conservative
Reconstruction really was.” C. Vann Woodward (1979), quoted in Eric Foner, Reconstruction:
America's Unfinished Revolution, 1863-1877 (1988; New York, 2002), xxi. I
am far from the first person to question how useful it is to center revolution
and freedom as the key conceptual paradigms for interpreting Reconstruction. For
example, see Gregory P. Downs, “Eric Foner’s ‘Reconstruction’ at Twenty-Five,” Journal
of the Gilded Age and Progressive Era 14, no. 1 (2015), 18.
[23]
Eric Foner, “Rights and the Constitution in Black Life during the Civil War and
Reconstruction,” Journal of American
History 74, no. 3 (1987), 863-83.
[24]
William E. Nelson, The Fourteenth Amendment: From Political Principle to
Judicial Doctrine (Cambridge, Mass., 1988), 114-24.
[25]
For example, see Abbye Atkinson, “Borrowing Equality,” Colum. L. Rev. 120,
no. 6 (2020), 1403-69; Erik Encarnacion, “Section 1981 as Contract Law,” 111 Va.
L. Rev. __ (forthcoming 2025).
[26] Frank
B. Wilderson III, Afropessimism (New York, 2020) (“the narrative arc of the slave who is Black
(unlike Orlando Patterson’s generic Slave, who may be of any race) is not an arc
at all, but a flat line”).
[27]
See Stephen M. Griffin, “Optimistic Originalism and the Reconstruction
Amendments,” Tulane L. Rev. 95, no. 2 (2020), 281-357 (describing and
critiquing the idea that the Fourteenth Amendment’s original meaning supports
the canonical decisions of the post-1945 Supreme Court and that the
Reconstruction amendments were “a binding promise” left unfulfilled until the
Second Reconstruction).