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.
[1]
Foner, Reconstruction, xxiii.
[2]
Note that Bobby Caldwell’s record label, in a gambit for Pop chart crossover,
carefully positioned him for Black radio, going so far as to conceal his racial
identity on the cover of the single that made him famous. Understanding and
attending to audiences’ racial assumptions is, of course, as important in
marketing as it is among legal professionals. For an excellent recent
discussion of this subject, see Brittany Farr, “The Race Case in Contracts,” 100
NYU Law Review __ (2025).
[3]
I am borrowing this helpful term from Justin Driver, “Recognizing Race,” Colum.
L. Rev. 112 (2012), 404-57.
[4]
He had to be patient. My scientific career peaked in Ms. Baum’s tenth-grade
biology class.
[5]
Justin Driver, “Recognizing Race,” Colum. L. Rev. 112 (2012), 404-57.
[6]
See, for example, Edward L. Ayers, The Promise of the New South: Life after
Reconstruction (1992; New York, 2007).
[7] Parents Involved in Community Schools v. Seattle
School Dist. No. 1, 551 U.S. 701, 748 (2007) (“Government action dividing
us by race is inherently suspect…The way to stop discrimination on the basis of
race is to stop discriminating on the basis of race”).
[8]
Khiara M. Bridges, “The Supreme Court 2021 Term: Foreword: Race in the Roberts
Court,” Harv. L. Rev. 136 (2022), 23-169. See also Driver, “Recognizing
Race,” 409 note 23, 417.
[9] 663 N.E.2d 289, 290-91 (N.Y. 1995). Brian Dalton sued
E.T.S. to release his SAT scores, which had been withheld on suspicion of having
had an imposter take the test for him; the lower court explicitly discussed the
plaintiff’s race in finding that E.T.S. had failed to evaluate probative
evidence, including the following: “One student [who identified Dalton as being
in the testing room]. . . specifically stated that Brian had stood out in the
classroom that day because he was fair-complexioned and blue-eyed and exhibited
‘an attitude,’ while the majority of the other test-takers were Asian,
African-American or Hispanic.” Dalton v. Educational Testing Service of Princeton, N.J., 588 N.Y.S.2d 741, 745 (1992). Both the New York Court of Appeals and the casebook
version omitted this evidence. E. Allan Farnsworth, Carol Sanger, Neil B.
Cohen, Richard R. W. Brooks and Larry T. Garvin, Contracts: Cases And
Materials (9th Ed. 2019), 672-76.
[10] Wolf v.
Marlton Corp., 57 N.J.
Super. 278 (1959). For a fuller discussion, see Penningroth, “Race in Contract
Law,” 1282-1290. At the time, commentators
inferred that “the threat was of a racial or religious nature.” “Contracts—Economic
Duress—Threat to Sell Property to an ‘Undesirable Party’ Held Sufficient to
Constitute Duress,” St. John’s L. Rev. 34 (1960), 321 note 18. The threat also tracked Article 34
of the Code of Ethics of the National Association of Real Estate Boards, which,
from 1924 to 1950, had read: “A Realtor should never be instrumental in
introducing into a neighborhood a character of property or occupancy, members
of any race or nationality, or any individuals whose presence will clearly be
detrimental to property values in that neighborhood.” I wonder whether the
Reporters of the Restatement Second may have modeled their Illustration 10,
§ 176 (“When a Threat Is Improper”) after NAREB’s 1950 code revision, which kept
Article 34’s core meaning but deleted the references to race, nationality, and
individuals, leaving only detrimental “character of property or use.” The NAR
has since acknowledged that Realtors continued to discriminate against Black
purchasers after 1950, although its members disagree about whether such
discrimination is a thing of the past. See Peter Robison and Noah Buhayar, “The National Association of Realtors Is Sorry About
All the Discrimination,” Bloomberg
Businessweek, Dec. 27, 2021.
[11]
“[W]e are trained to assume automatically that the characters we meet in the
stories the cases tell us are white, unless the fact of their non-whiteness is
relevant. Then and only then are we told about it.” I’m grateful to Professor
Carter for allowing me to discuss and quote from his manuscript in this
Response.
[12]
36 Ind. 389, 394, 402-403 (1871) (upholding a statute criminalizing interracial
marriage on the ground that marriage “is more than a mere civil contract”).
[13]
Many thanks to John Witt for this comment.
[14]
Bernard Bailyn, The Ideological Origins of the American Revolution (1967;
Cambridge, Mass., 2017), 119-20, 232.
[15]
Balkin and Levinson, “Dangerous Thirteenth Amendment,” 1483-84.
[16]
Robert L. Hale, “Coercion and Distribution in a Supposedly Non-Coercive State,”
Political Science Quarterly 38, no. 3 (1923), 481; Louis D. Brandeis, “Big
Business and Industrial Liberty,” in The Curse of Bigness (1935), 39.
[17] Evelyn Atkinson, “Frankenstein’s Baby: The Forgotten History of
Corporations, Race, and Equal Protection,” Va. L. Rev. 108, no. 3
(2022), 601.
[18]
I am paraphrasing Edwards, who is actually talking about nineteenth century historiography
more broadly. Laura F. Edwards, “Sarah Allingham’s Sheet and Other Lessons from
Legal History,” J. Early Rep. 38 (Spring 2018), 124.
[19]
Here I was inspired in part by scholarship on the role that the production of
historical narrative plays in struggles over political authority and access to
resources, especially Sara S. Berry, Chiefs Know Their Boundaries: Essays on
Property, Power, and the Past in Asante, 1896-1996 (Portsmouth, 2001); and Blight,
Race and Reunion.