Scott Yenor responds to Tyler Syck's and Mark Tooley's criticism of national conservativism.
When Florida’s Department of Education put forward a curricular plan that would require teachers to discuss not only the horrors of American slavery, but also the skills that blacks often acquired while enslaved, it was mocked and represented as a bigoted attempt to whitewash a great historical evil.
To vindicate Florida’s approach, though, one might cite the two greatest black leaders of the nineteenth century, the escaped slave, abolitionist, and civil-rights champion Frederick Douglass and the founder of the Tuskegee Institute and pioneer of postwar black education, Booker T. Washington. In an 1849 essay published in his newspaper The North Star titled “The Destiny of Colored Americans,” Douglass challenged those who thought the “solution” to the slavery problem lay in emancipation followed by immediate colonization in Africa. Douglass insisted that America “must continue to be the home of the colored man so long as it remains the home of civilization and religion.” Unlike native Americans, who scorned and rejected Western civilization, Douglass emphasized, the black man, though “called to endure greater hardships, injuries and insults to which the Indians have been subjected, … yet lives and prospers under every disadvantage,” making himself essential to the nation’s future greatness.
Washington, similarly, wrote in his autobiography of slavery as a “school” through which American blacks and their descendants had passed, leaving them “in a stronger and more hopeful condition, materially, intellectually, morally, and religiously, than is true of an equal number of black people in any other portion of the globe.” Without minimizing either the horrors of slavery or the many subsequent injustices that blacks endured, Washington nonetheless acknowledged the benefits that ultimately accrued to black people from having become enmeshed in American civilization.
These reflections form a backdrop to appreciating Stanford law professor Dylan C. Penningroth’s Before the Movement. The central theme of Penningroth’s meticulously researched book is how black people came to know, and benefit from, the American legal system even during their centuries of enslavement, and much more so in the decades between Emancipation and the birth of the civil rights movement. Penningroth aims to show “how ordinary Black people,” dating as far back as his great-great-great uncle and aunt, far from being only passive objects awaiting emancipation by others, “used law in their everyday lives.” The law that concerns him in this history isn’t Constitutional or even (chiefly) statute law, but the “everyday” law governing issues like property and contracts that were based on customary “privileges” rather than inherent rights.
Even under slavery, Penningroth notes, relations between masters and slaves typically allowed the latter to enjoy certain recognized privileges—for instance, allowing them to till small garden plots in their “off” hours for the benefit of their family, or even to sell their labor or products to others. Masters allowed such privileges not necessarily out of beneficence, but from recognition that it was to their advantage to permit them, so as to keep the slaves (relatively) contented, and sometimes to offload the burden of caring for sick or elderly family members onto the slaves themselves.
Moreover, southern whites recognized that “life’s ordinary business could not go on if whites could not make contracts and convey property to Black people.” Exchanges of property among slaves, and sometimes even with white storeowners, gave slaves the incentive and opportunity to become learned in areas of law that immediately affected them. And although unable to enforce their property interests in the lawcourts, slaves created “notice” of their ownership through informal means, “displaying their possessions and securing acknowledgment” of them “from their masters and fellow slaves.” Thus, Penningroth argues, “slaves owned property in every sense of the word except that no court would protect their ownership as a right.” Meanwhile, free blacks in both North and South developed an understanding of corporate law by forming corporations for the purpose of promoting abolition, providing mutual assistance, and establishing churches.
Following emancipation, Penningroth observes, blacks took ample advantage of the court system for the purpose of civil litigation—so that “Black civil rights were forged within southern law, not against it” (Penningroth’s emphasis). He laments that this story has been forgotten because “almost none” of the 805 cases he studied while going through southern courthouse records “identified anybody’s race.” Since the four decades after emancipation “were the formative era of modern contract law,” with “Black people’s cases” being “cited as precedents across a wide range of areas” such as fraud and the rules of evidence, this means that their lawsuits “helped make American law.”
In subsequent chapters, Penningroth surveys blacks’ rapidly growing postwar application of the law to matters of the heart such as divorce (“Do for Love”) and issues of church governance, as well as their formation of associations such as fraternal orders (which early in the twentieth century started lobbying on behalf of the NAACP’s campaign against lynching and discrimination)—thus laying “professional and conceptual groundwork for modern civil rights.” He examines how blacks, especially Southern tenant farmers, came to use “goat sense”—the “rough-and-ready” legal knowledge they needed to defend their rights, to the extent possible, in the Jim Crow era. Civil rights, he observes, “were forged not just in courtrooms and lawyers’ offices, but through everyday use,” especially in the case of wills and contracts, “which nonlawyers can write for themselves.” When black people did hire lawyers, Penningroth adds, the attorneys simply “translated laypeople’s ideas of law” based on goat sense, ideas that scholars have sometimes mistaken for ignorance.
In the early twentieth century, Penningroth points out, while black home- and farm-ownership rose rapidly, the rate of lynchings reached a peak at the same time—evidently because black landowning constituted “a threat to white supremacy.” Meanwhile, blacks were using their legal knowledge to persuade judges to overturn the most abusive sort of landowning contracts (in which, for instance, a buyer’s entire investment could be canceled if he missed a single payment). To avoid being deceived, blacks with goat sense didn’t even need to be literate. Meanwhile, as whites attempted to enforce residential segregation through restrictive covenants, black landowners sometimes adopted the same devices, either to keep out occupants they regarded as undesirable or to ensure that a piece of land remained in the family’s hands through the generations.
In the last part of his book, “The Movement Era,” Penningroth addresses the intersection between the black legal tradition and the civil rights movement of the mid-twentieth century, contrasting the newcomers’ appeal to rights that transcended established laws with an earlier generation’s faith in the “civil rights of everyday use.” For blacks who adhered to the latter, challenges to legal property rights (for instance, by the sit-ins of the 1960s) threatened the common-law rights that they regarded as “the best strategy for African Americans to win respect and ‘economic independence’” (a strategy, I note, reminiscent of Booker T. Washington’s policies).
By contrast, Martin Luther King, representing “the public face of the civil rights movement,” had an authoritarian streak to his supralegal posture, telling his congregation at Atlanta’s Ebenezer Baptist Church that he wouldn’t “’pay any attention’” to criticism from congregants who complained that he devoted too much of his sermons to politics, since his “‘guidelines and … anointment [came] from God Almighty.’” And while Penningroth expresses gratitude for the way that the new movement “lifted civil rights up from the house porch and the county courthouse into the universal values of freedom, justice, and dignity,” he laments that “something … got lost in that transfiguration: the long, rich history of Black people’s legal experiences and ideas about rights.”
This is an impressively researched, interesting book. Its one weakness is that the author cannot resist the temptation, especially in his concluding chapter, to toss in a series of ungrounded, partisan potshots. He claims that the Democratic arch-segregationist Mississippi Senator James Eastland—who in his younger days as a lawyer had “won a $7,000 settlement for three Black workers who had been killed or injured” by an electric company—“went on to write the playbook for today’s Republican Party, blockading civil rights legislation and cynically attacking ‘big government’ while milking huge federal [farm] subsidies.” But Eastland wasn’t a Republican; the 1964 Civil Rights Act passed with a larger percentage of Republican than Democratic votes in both houses of Congress; and only two pages earlier, Penningroth hailed Franklin Roosevelt’s New Deal, which by “vastly expand[ing] the power of the federal government,” showed “that true freedom could come through government,” not in spite of it (author’s emphasis). Here Penningroth curiously disregards FDR’s refusal to back anti-lynching legislation—the price of preserving segregationist votes for his policies.
In his conclusion, Penningroth laments that “right-wing politicians and judges [who] insist” today “that racism is history, and that the only way to sweep away its remnants is to be color-blind” (as the Supreme Court endeavored to do, I note, in its recent Fair Admissions decision) will find support for their position in “the long history of Black people’s engagement with property and contract, rights that even Jim Crow laws did not deny.” Well, why shouldn’t they? Then he lets loose by denouncing “mass incarceration” (which protects considerably more black than white people from being killed), “murderous policemen [who are the direct descendants of the slave patrollers and lynchers],” and “Republicans’ attack on democracy [which] are ‘downstream’ from the feverish pro-slavery politicians of the 1850s.”
I commend this book to readers interested in both legal history and the history of black-white relations in this country. I just wish that Penningroth hadn’t felt compelled to exhibit his bona fides by ending in a fit of intemperate, partisan rage. Perhaps a bit more goat sense would have helped.