Symposium Response Part 2: Centering and de-centering race

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

Looking at the Symposium overall, I think these posts have drawn out what I hope is a creative tension in the book’s approach to race. On the one hand, the book invites law scholars to move race and race relations toward the center of the curriculum and the profession. But then it asks historians, and especially African American historians, in essence to de-center race relations. There were both conceptual and pragmatic reasons behind this dual approach. Conceptually, I felt that the history of race had too often been conflated with the history of Black people, and that this conflation inadvertently wound up treating African Americans instrumentally—as something more like a window into the soul of America than as people worth studying in themselves. From a purely pragmatic point of view, using local court records practically compelled me to think hard about centering race: the overwhelming majority of the cases involving Black people were between Black people. Obviously, white supremacy produced these skewed proportions, and yet it seemed important to take seriously what Black-Black cases had to say, especially when I saw other kinds of sources saying similar things. It is by now axiomatic that Black people fought for “independence in their working lives,” autonomy for “their families and communities,” and “equal citizenship” in the body politic.[1] But what did autonomy mean to a Black tenant farmer like Nate Shaw (Ned Cobb) who said that his own father treated him “just like slavery”? What did equal citizenship mean to Black women who were treated as second-class citizens in their churches and fraternal orders, the citizenship that mattered most (or at least most immediately) to Black people before the movement?

Here again, as with enslaved people’s property, the rights/privileges dynamic intersects with the law/not-law question. The privileges of church membership, for example, had legal meaning in that they were spelled out in church constitutions and books of religious doctrine, and might be enforceable, in certain limited circumstances, by a court. Indeed, religious bodies sometimes used the words “rights” and “privileges” interchangeably. When I joined my hometown church as a teenager, Rev. Smith called the question, the congregation murmured “aye,” and he extended me the right hand of fellowship and announced that I was now a member of First Baptist Princeton and entitled to “all the rights and privileges pertaining thereto.” But privileges were not rights. The church officers owned the property and signed the contracts and spoke for me and the other members. And whatever privileges came with membership, they were local to this particular religious association, and in the 1980s, associational citizenship governed less of people’s lives than it had in the 1880s. The story of African American history is, in no small part, about how Black people struggled with one another over what a Black family, a Black corporation, or a “Black community” really was—and what its members owed each other. Barely visible through the veil of race relations, those struggles gleam from the shelves of the county courthouse, in cases that were not (primarily) “about race”: inheritance, partition, contract, divorce, and more.

So, it’s a book that tries to get at civil rights through the realm of privileges, plural legalities, and Black interiority. And I tried to draw readers into this analytic emphasis on Black interiority through expository choices. For example, by only mentioning the race of the white characters, while referring to Black characters simply by their names, I invited readers to imagine a world whose default, unmarked category was Blackness—and to see how easy it is to assume that the only areas of law where race matters are the ones that are explicitly “about race.” For similar reasons (and also just because it was fun) I tried to spark an emotional connection to past Black worlds through allusive chapter titles like The Preacher’s Wife and the classic jam “Do for Love,” recklessly outing myself as a child of the 70s.[2]

When should law and legal institutions recognize race?[3] Several of the contributors to this Symposium weigh in helpfully on this question. Only when “race itself is at issue,” Professor Rose offers. When there is evidence that race has “distorted” the leading case for a rule, Professor Ayres suggests. For Professor Graber, recognizing race makes sense “within the legal regime of the civil rights movement,” which recognized race in order to remedy inequalities, but not within the Jim Crow legal regime, which formalistically ignored race to legitimate inequalities. I agree with these admonitions for caution. We should be careful about when, where, and why we recognize race. And yet these prescriptions seem to me to present some difficulties of their own.

For one thing, while I agree with Professor Graber that there were real differences over time in people’s motivations for recognizing race, these differences don’t seem (at least to me) to draw a bright line between the Jim Crow legal regime and the legal regime of the civil rights movement. In my view, the Jim Crow legal regime was not colorblind; it was opportunistic. Legal professionals started from the presumption that, in contract law, race had no legal meaning of its own. They treated race as a kind of “doctrinal catalyst of opportunity.” (My father, a biochemist, spent a couple of memorable hours patiently helping me fashion this somewhat awkward metaphor.[4]) Race was always there, of course; it’s just that most of the time it sat inert until someone made it a material fact by binding it to a particular rule or category, catalyzing, so to speak, the argument they wanted to advance. One byproduct of treating race as a doctrinal catalyst is that it discouraged lawyers and judges from considering it as a matter of structural inequality, and instead tempted them to invoke race opportunistically, depending on which position suited their goals in the case. I think of this as a more pointed version of what Justin Driver is getting at when he describes judges’ “practice of racial recognition” as “mottled.”[5] My portrait of racial opportunism in law is also consistent with social and cultural histories of the Jim Crow South, where race relations were anything but rigid, and where fluidity meant opportunity, terror, and social control.[6]

Today, Jim Crow is gone but one could argue that the Roberts Court is continuing that pattern of opportunism. The Roberts Court insists that government recognition of race is equivalent to “discriminating on the basis of race,”[7] and yet, as Khiara Bridges has shown, the Court’s conservatives frequently do talk about race: equating abortion with genocide; claiming the Fourteenth Amendment was enacted partly to ensure freedpeople could arm themselves against the Klan; and, in affirmative-action jurisprudence, dwelling on “[t]he feelings of disappointed white applicants.”[8] The scope and stakes of racial opportunism are only growing now that the Trump administration is redirecting federal agencies to investigate discrimination against white people, for instance, and prioritizing Afrikaners for refugee resettlement. As momentous as these public law developments are, courts still treat race opportunistically in private law, too. Is race not at issue in Dalton v. Educational Testing Services of Princeton just because the appellate court decided to omit evidence the lower court considered relevant?^[9] Sydelle and Milton Wolf threatened to flip their house to a buyer “who would be so undesirable in our tract” that the Marlton Corporation would never build houses in New Jersey again. Was race no longer at issue once the Restatement Second edited the Wolfs’ words into a threat to resell to a buyer who intended an undesirable “industrial use”?[10]

Certainly casebook authors could just delete and replace these offending cases instead of editing them. But once we’ve looked under the hood of cases like Dalton and Marlton, how could we be confident that the new cases really have nothing to do with race, or slavery, or Black people? More worrisome is that deleting “‘colored’ cases” would extend the pattern of opportunism, not break it. The cases are there for a reason—probably several reasons. Sometimes it may be better to keep them, as another opportunity for students to think about how legal rules come to be—about the normative choices hidden in case selection and modes of reasoning.

In an unpublished lecture that Professor Ayres kindly sent me, Professor Stephen Carter contends that law is “deracialized” by default, that this default assumption harms law teaching, and that race should be “integrated as a central theme” of “the regular law school curriculum” by choosing a few cases where race is clearly relevant.[11] I agree with Professor Carter (and perhaps Professor Ayres) that “we can teach law better . . . if we render blackness visible,” and I would go further. Many of the most influential cases involving Black people—as well as many of the most pedagogically useful ones—are the cases that are not “about race” or that don’t even mention race. Rather than presume at the outset that race did not matter to the outcome of the case, we might, at least sometimes, consider starting from the presumption that it did. And even if we can’t determine whether race was material to the outcome, we may conclude that race helped shape the doctrinal meaning that has accrued around the case and what it might stand for in the future. A big-picture perspective could show how race has molded the very domain of contract, how it helped demarcate “contract” from “regulation” in ways that made certain contracts impermissible—like a contract for a “colored” person to ride in a “white” railcar (as in Plessy), or a marriage contract between a “white” and a “colored” person (as in State v. Gibson,[12])—while simultaneously steering politics away from forms of regulation that would have limited the domain of contract.[13]

This is a roundabout way of saying how gratified I am that the contributors saw some value in the book’s efforts to weave together social and cultural history with an account of the development of legal doctrine and ideas. I fully agree with Professor Atkinson that we need to know more about when and why Black collectivities invoked the power of the state, how state involvement both empowered Black incorporators and invited interference in their affairs, and how Black corporations influenced corporate law. Before the Movement offered only tentative answers to these questions, building on Sally Gordon’s pathbreaking work on religious corporations. I agree that paying more attention to the distinction between corporations and unincorporated associations would help address these questions and clarify the role of incorporation in Black associational life. In addition, Professor Atkinson’s suggestions about the impact of Black corporations on the path of corporate law will greatly help me as I develop another idea that is important but somewhat nascent in Before the Movement: the duty of a Black corporation. I agree with Atkinson that Black people offered a vision of the corporation that challenged the prevailing view that it was a private, profit-making entity, but I am not sure that Black people’s corporate vision was equivalent to today’s benefit corporation. A benefit corporation seeks both profit and public good. The dilemma for Black incorporators was that, while shareholder profit was too narrow a purpose, “the public” was too broad a purpose. Many Black incorporators believed they had a duty to “the race,” not to “the public” at large, which was mostly white. And one of the things I hope to explore in future work is why Black corporations seem to have held onto this sense of duty to the race long after the 1860s, when white corporations brushed off any sense of duty to promote the public welfare, and what implications that had.

One of the book’s themes is the complex interrelationship between race and private law. In an intriguing exploration of an erstwhile casebook staple, Taft v. Hyatt, Professor Ayres contends that “race may have distorted the path of the common law of contract.” He suggests that race played a role in the Kansas court’s adoption of the narrow rule—that an uncommunicated offer cannot be accepted—and suggests that an “unbiased court” could have held for the Black claimants either by leaning on the equitable theory of quantum meruit or by adopting the Carlill v. Carbolic Smoke Co. rule that the offeror can waive the communication of acceptance. I am sure he is right that the Kansas court could have taken either of those options. What intrigues me here is the idea that race’s role in the development of legal doctrine was to distort. My own view is that the common law of contract over the past 150 years developed alongside and often through ideas about slavery, slaving, and race. And so it is difficult for me to imagine an alternate, non-racial path that contract law could have taken but for the distorting impact of race—at least one that we might still recognize as “contract law.” “‘Slavery’ was a central concept in eighteenth century political discourse,”[14] one that profoundly affected the Founders’ thinking about authority, governance, and freedom;[15] in the 1920s, Realists argued that freedom of contract was naturalizing contractual relations so unequal that they amounted to “industrial slavery”[16]; and well into the 1970s, leading theorists sometimes used Black people and slavery as thinking tools. Throughout the period, legal professionals routinely relied on what I call “‘colored’ cases”—cases involving African Americans, hypotheticals and cases deploying racial metaphors and analogies, and hypotheticals and cases using theories about slavery—to develop common-law rules and to think through major doctrinal and theoretical problems in contract. Professor Atkinson’s recent article suggests that corporate lawyers may have done the same thing in corporate law.^[17] My contention is that these analogies and hypos only worked if they were simultaneously real and not real. They needed race to establish their desired theoretical point, yet they had to efface race for that theory to reach beyond “race” cases. They needed B. L. Taft (the man) to be “colored” but Taft (the case) to be not “colored.”

And this brings me back to the theme I advanced near the beginning of this Response. If legal elites tended to use Black people as “tools to think with,” Black people had their own diverse array of ideas about law, a history of Black legal thought that paralleled and sometimes clashed with but more frequently overlapped with white people’s legal thought. It was driven more by tenant farmers and laundry workers than by lawyers and activists, and in some respects it doesn’t make sense to call it “Black” because so much of it stood in the same broad pool of legal assumptions and practices as those of non-professional white people. Over time, Black legal thought generated its own intellectual and political self-fashionings. One of those self-fashionings was, until quite recently, almost axiomatic in the field of American history, and is still taken for granted in legal scholarship: the idea that until the twentieth-century rights revolution Black people stood outside the law, unknowing and wholly subject to its disciplinary power.[18] As Professor Griffin notes, the civil rights activists who popularized that idea were just one of many groups that sought strategic advantage by rewriting or downplaying earlier traditions of Black legal thought in favor of a narrative of a struggle for freedom.[19] I leave it to others to judge whether I managed to capture the legal thought of non-literate Black farmers as well as that of Black lawyers, journalists, and activists.

I feel lucky to have had the chance to engage in this conversation with such a stellar group of scholars. Their generous comments have afforded me a valuable chance not only to reflect on a piece of scholarship that took me a long time to write, but also to catch glimpses of what might come next. I’m very grateful.