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Fighting Racism in Travel and Transportation

Mia Bay’s fantastic new book, Traveling Black, is both a richly detailed history of travel and transportation from the late nineteenth century to the 1960s that centers the experiences of Black travelers, and a deeply researched history of resistance to discrimination that brings to light those travelers’ active and ongoing efforts to demand equal treatment.

Bay keeps the focus on Black travelers throughout, explaining in granular detail all of the ways in which one’s experience of travel depended on one’s race. The first several chapters each focus on a single form of travel—railroad, car, bus, and airline. In each chapter, Bay offers detailed descriptions of how formal and informal restrictions imposed by white lawmakers and business owners affected where and how Black travelers were able to ride, drive, wait, eat, drink and sleep. One notable strength of Traveling Black is Bay’s ability to tell a national story about multiple kinds of transportation while also directing readers’ attention to how the “complex pastiche of law and custom created racial rules that were too inconsistent to be easily followed—or endured.” (P. 8.) Practices differed by region, by state, and by city. Some of the discrimination, segregation, and exclusion she describes was a matter of individual discretion or business practice or local custom. Airlines, for example, created “a variety of unobtrusive approaches to discouraging Black passengers—which never ended up in court.” (P. 210.) In other areas these practices were supported by formal laws requiring segregation and empowering transportation workers as enforcement agents.

Throughout the book, Bay makes clear how much work white business owners and white government officials put into imposing racial hierarchies on each new travel experience. Allowing travelers to intermingle would have required little effort, but suggested a kind of racial equality that was anathema to white decision-makers. For businesses and officials committed to making racial hierarchies clear, each new form of transportation was its own challenge, as trains, cars, buses, and airplanes each had different seating configurations, technologies, economics, and regulatory regimes. Thus, for example, Black passengers were directed to separate railroad cars, to the rear seats in a bus, and to the front seats of an airplane—in all cases the least comfortable location, and one that assured white travelers of their own social position. Travelers also created demand for various related businesses—including railroad and bus depots, airports, gas stations, hotels, campgrounds, restaurants, and airport taxis—and here too local businesses and government officials sought to ensure that Black travelers were treated worse than white travelers, or refused service entirely.

Bay also highlights how class and wealth intersected with racial discrimination. Wealth couldn’t improve a Black traveler’s railroad experience (with the exception of Pullman cars) or bus trip; it could, however, allow that same traveler to purchase an automobile and avoid trains and buses altogether. This raised new complications, though. As Bay points out, “Cars, which were available to anyone who could afford to buy one, challenged the Jim Crow South’s carefully regulated social order.” (P. 124.) Black travelers whose cars were too nice drew additional scrutiny from police.

In every area of travel, Bay demonstrates, Black travelers resisted, protested, amplified complaints, called on businesses and governments to act, and sued to challenge the white supremacist laws and customs they encountered. Black travelers drew on a variety of legal arguments, including nondiscrimination language in the Interstate Commerce Act of 1887 and its amendments and the Federal Aviation Acts of 1938 and 1958, that the agencies in charge had failed to enforce. Bay urges us to rethink our histories of this era in order to acknowledge a much longer and more extensive pattern of resistance than previously known; these actions “document a sustained fight for mobility that falls largely outside the organizational history of the civil rights movement.” (P. 3.) This deeply researched book brings this fight to light, and in particular makes excellent use of Black newspapers to describe a lot more use of the courts than well-known court victories demonstrate.

These efforts, however, led to little practical change. Bay demonstrates the difficulties of legal challenges to these practices, given the confusing and often overlapping jurisdictional boundaries involved. Interstate and intrastate travel were constitutionally distinct, so railroad depots, restaurants, taxis, gas stations, and airports were legally different spaces than were railroad cars and airplanes. (And airports, mostly constructed with federal funds, were themselves not subject to the same rules as bus and railroad depots.) Railroads, buses, and airlines, as common carriers, were subject to different rules and laws than automobiles, and railroads and buses were subject to one federal agency (the ICC), while airlines were subject to others (the Civil Aeronautics Board and the Federal Aviation Administration). Bay deftly navigates these differences, always making clear to the reader what the legal status of each space was, how parties attempted legal challenges, and, as often happened, which nondiscrimination provision(s) those in charge of the space were choosing to ignore.

A key theme of the book is the ineffectiveness of legal and policy wins untethered to strong enforcement. Bay describes the legal victories along the way, but also how they did little to change Black travelers’ experiences. Some businesses responded to complaints with concern and promises of improvement, but did nothing. Hard fought victories in court or before the Interstate Commerce Commission (ICC) were not enforced. The final two chapters tell the somewhat more familiar story (to legal historians, anyway) of more successful efforts to fight transportation segregation. Black passengers begin winning in federal court (in cases like Morgan v. Virginia (1946), Gayle v. Browder (1956), and Boynton v. Virginia (1960)) and before the ICC (in Keys v. Carolina Coach Co. (1955)). Direct action efforts like the Montgomery bus boycott and the Freedom Rides brought additional public attention to the issue of racial discrimination in transportation. However, even these widely touted victories were not enough to change the experience of travelers. Businesses continued to simply decline to comply with laws and rulings and administrative orders, and not until the 1960s, when the Department of Justice and the ICC finally began aggressively enforcing judicial decisions and statutory bans on discrimination, was there real change in businesses’ behavior.

The book concludes with the Civil Rights Act of 1964, Title II of which stated a broad national rule against racial discrimination in public accommodations affecting interstate commerce. As Bay describes, “Enforced by the Department of Justice and supported in the courts, Title II of the 1964 Civil Rights Act worked in tandem with the ICC’s 1961 ruling barring racial segregation in interstate transportation and put a decisive end to many of the most galling indignities that Blacks had long suffered. While racism is far from dead, the desegregation of public accommodations was, and still is, one of the civil rights movement’s most important achievements. Its impact in the field of transportation was nothing short of transformative.” (Pp. 304-05.)

Bay’s epilogue, however, warns the reader that, as effective as the Civil Rights Act was in stopping most discriminatory practices that bedeviled Black travelers for most of the twentieth century, white supremacy finds a way. Bay briefly sketches some ways transportation discrimination has manifested since 1964, noting the demise of and defunding of public transportation in urban areas; the construction of highways through historically Black neighborhoods; suburbanization, white flight, and Americans’ increasing dependence on cars; and discrimination by “private” AirBnB hosts. In addition, Title II did nothing to address the risk police traffic stops pose to Black drivers—a problem that has grown substantially worse with the vast expansion of policing since the 1970s. “Black Lives Matter, like many of the earlier civil rights initiatives chronicled in this book, has taken shape at least in part around the dangers of traveling Black.” (P. 318.) Bay ties all of this into a broader point about the limits of formal law; “Many of the forms of racial discrimination encountered by African American travelers were informal rather than required by law, and many of them have not been eradicated. Today, as in the past, civil rights laws are not always successful in protecting Black travelers.” (P. 307.)

Cite as: Joanna Grisinger, Fighting Racism in Travel and Transportation, JOTWELL (October 18, 2021) (reviewing Mia Bay, Traveling Black: A Story of Race and Resistance (2021)), https://legalhist.jotwell.com/fighting-racism-in-travel-and-transportation/.

What Does Civil-Rights History Have to Say About Abortion?

Jennifer Holland’s well-researched, captivating history will open a new chapter in historiographic debates about the pro-life movement’s roots—and about the racial politics of abortion. Focusing on antiabortion organizing in the Four Corners region of the United States (an area encompassing all or part of Colorado, Utah, Arizona, and New Mexico), Tiny You explores how abortion became (and remained) the defining political issue for social conservatives. Holland offers a provocative look at the long shadow cast by civil rights law on so many of our debates, exploring how conservative social movements have laid claim to those traditions in profoundly consequential ways.

In recent years, historians of the 1960s and 1970s have documented how abortion foes redefined their cause as a quintessentially legal, rather than religious, cause. The movement successfully leveraged the strategies of the civil rights movement to justify restrictions and outright bans on abortion. Pro-lifers relied on the rhetoric of civil rights in the political and legal arena. In court, pro-life attorneys invoked race-discrimination jurisprudence, pointing to the Equal Protection Clause to establish unborn children as a protected minority. Some scholars suggest that pro-lifers’ turn to civil rights was both sincere and transformative. What had been a Catholic movement won allies with different political perspectives and religious backgrounds. In the late 1960s and early 1970s, some secular activists, Mormons, Orthodox Jews, and mainline Protestants had joined the movement. By the 1980s, evangelical Protestants, even those opposed to busing and key planks of the civil-rights agenda, joined the movement in increasing numbers. By moving away from explicitly Catholic arguments—and by playing down opposition to contraception—abortion foes built a more religiously diverse movement. All the while, as pro-lifers painted their struggle as a fight for civil rights, the movement remained predominantly white.

Holland makes sense of the complex racial politics of abortion. She argues that the struggle over abortion allowed conservative white Christians “a new type of racial identity, one based on […] claims to morality and common sense.” (P. 28.) In her view, abortion foes appropriated civil rights rhetoric all while changing what it meant, neglecting questions of racial justice, repositioning (often white) fetuses as victims, and reclaiming the moral high ground for white activists opposed to abortion.

Starting in the 1960s and 1970s, Tiny You begins by examining how conservative Catholics mobilized to oppose pornography and contraception. These fights created conservative Catholic networks that would later field prominent activists in the abortion conflict. Central to this mobilization was the circulation of powerful fetal images. From the beginning, these images had everything to say about race and racism in America. Holland chronicles how antiabortion leaders like Dr. John Willke and his wife, Barbara, courted support in Utah by stressing images of white fetuses, all the while pitching their cause as a fight to protect embattled minorities. Antiabortion leaders insisted that by denying the personhood of human beings, abortion resembled slavery and the Holocaust. Abortion opponents Denying fetal personhood would create a slippery slope, abortion foes maintained. Soon, the United States might deny the personhood of the elderly, the disabled, or other vulnerable groups.

Tiny You challenges leading historical accounts of why and how the antiabortion movement turned to civil rights arguments. Holland, like historian Daniel K. Williams, recognizes that the antiabortion movement relied heavily on the history of civil rights. The adoption of civil rights rhetoric unquestionably had a strategic dimension. The antiabortion movement faced headwinds as long as many believed it was a front for the Catholic Church. Williams, however, asserts that this shift reflected deeply held beliefs about “the feminism of difference” and “the social welfare politics of New Deal liberalism.” (Williams, Pp. 6-7.) New Dealers embraced programs intended to protect the vulnerable, especially the poor. Pro-lifers believed that protection for the unborn (as well as for low-income mothers) would fit well in this kind of New Deal vision. Williams highlights the work of antiabortion Democrats who supported workers’ rights, a living wage, and employment protections for minorities and women. In his view, the fight over abortion pitted two visions of liberalism against one another, at least before the Supreme Court decided Roe v. Wade and abortion foes aligned with the Republican Party. Holland’s rich narrative complicates this account and forces us to revisit the complex racial politics of abortion.

These arguments had a legal as well as political dimension. Invoking the Thirteenth Amendment, abortion opponents insisted that Roe v. Wade denied fetal personhood just as slavery had denied the personhood of Black Americans. After 1973, abortion foes demanded a constitutional amendment of their own. But Holland shrewdly notes that antiabortion activists in the Four Corners region rarely put direct effort into fights against racism or anti-Semitism. In New Mexico, for example, antiabortion leaders did not work with Chicano or American Indian activists concerned about sterilization abuse. Holland reasons that members of a predominantly white antiabortion movement meant something very different by human rights and civil rights than did their nonwhite neighbors. Indeed, antiabortion advocates often insisted that abortion was worse than the Holocaust or slavery because “fetuses were the only innocents, the truly helpless.” (Pp. 88-89.)

Holland meticulously documents how the racial politics of abortion shifted in the 1980s and 1990s, as the movement began to focus on woman-protective arguments. Tiny You offers an inside look at crisis pregnancy centers (CPCs) that helped to spread these arguments. These organizations set out to mobilize what they called post-abortive women, contending that the procedure denied them civil rights. CPCs primarily identified white activists but provided services to a diverse clientele. But while ministering to women of color, CPC leaders played down any role played by race or class in the struggles their clients faced. Instead, CPCs pressed the claim that abortion alone was to blame for what women faced. Tiny You offers a different perspective on the rise of the conservative movement in the West in the period, showing how abortion foes grappled with racial politics in complex, sometimes surprising ways.

The effects of abortion’s racial politics were legal as well as political. CPC leaders helped to pass informed-consent laws and overhaul the allocation of federal family planning dollars. The movement also made its impact felt in sex education policy. After Congress passed the Adolescent Family Life Act in the early 1980s, antiabortion activists used federal money to pitch their own sex education programs, including Sex Respect, an abstinence-centered approach that framed both premarital sex and abortion as “deadly.” (Pp. 171-73.)

Holland explores how this campaign, like so many, contested the meaning of civil rights in modern America. By often foregrounding the abortion of white children, abortion opponents claimed that whites too were victims. And by arguing that abortion was at once “the root of racism” and “the source of women’s oppression,” the activists in Holland’s story found ways to claim the mantle of the civil rights movement without embracing measures to eliminate discrimination on the basis of race or sex.

The pro-life movement’s complexity makes it even more important to have compelling histories like this one. Readers need not accept every dimension of Holland’s story to recognize its importance. Those most likely to have abortions, or to feel the effects of abortion restrictions, are not white. Yet as Holland convincingly shows, white conservative activists have worked to redefine our civil rights tradition, with consequences that we still just beginning to understand.

Cite as: Mary Ziegler, What Does Civil-Rights History Have to Say About Abortion?, JOTWELL (September 16, 2021) (reviewing Jennifer Holland, Tiny You: A Western History of the Anti-Abortion Movement (2020)), https://legalhist.jotwell.com/what-does-civil-rights-history-have-to-say-about-abortion/.

The Civil Rights Movement You Haven’t Heard Of

I have no doubt that most Jotwell readers—particularly readers of its legal history section—remember sitting in their U.S. History class, learning the accepted narrative of “The Coming of the Civil War.” The Missouri Compromise. Check. The Mexican War. Check. The Wilmot Proviso. Check. The Compromise of 1850. Check. The Kansas-Nebraska Act. Check. The Dred Scott case. Double check for the audience of this review, I’d bet. The Lincoln-Douglas debates, Harpers Ferry, Lincoln’s election, Fort Sumter. Check, check, check, and check. Many of us enjoyed this story of the political and legal maneuvering that shaped the conflict between freedom and slavery. What our eighteen-year-old selves probably didn’t notice was that the story focused primarily on the federal government. We also probably assumed that freedom and slavery were the only two statuses available to Americans in the years leading up to the Civil War.

Kate Masur’s marvelous Until Justice Be Done shows us otherwise. Indeed, she recounts a very different series of events—stories of the fight for the rights of free Black Americans at the state and local level for the hundred years between the Revolutionary War and the end of Reconstruction. This “first civil rights movement” runs alongside the traditional story of sectionalism and slavery, intersecting with it and explaining it in ways that a myopic focus on the federal government and political conflict over slavery do not. Indeed, after reading Until Justice Be Done, the standard narrative seems thinner and less substantial than it once was. Knowing what was left out, you can’t look at the sectional conflict, the Civil War, and Reconstruction in the same way again.

Until Justice Be Done is a book of many accomplishments. Most obviously, it tells a compelling narrative of the fight to overturn the racist laws and policies that, along with the law of slavery, constituted the legal framework of white supremacy in antebellum America. In the first decades of the nineteenth century, many northern states stripped Black men of the right to vote and prohibited African Americans from testifying against white people in court. Politicians in some northern states–particularly those carved out of the Northwest Territories—restricted the migration of African Americans into their states, banning it outright or imposing special requirements on Black migrants. They had to carry certificates of freedom that functioned as work permits. They had to find current residents of the state to post surety bonds guaranteeing that they would not become public charges. Southern states and the District of Columbia also regulated the mobility of free African Americans. They incarcerated free African Americans who had the audacity to travel without written proof of their free status. Similarly, Black sailors were required to report to jail for confinement while their ships were docked in southern ports. In certain circumstances, these temporary confinements became permanent, as Black travelers who could not prove their freedom were sold into slavery to cover the cost of their incarceration.

At the core of Until Justice Be Done is the story of the fight against these laws. Abolitionism, Masur shows us, was not merely a movement against slavery. It also sought to protect and promote the civil and political rights of free Black people. At its very center was the demand that African Americans be treated as citizens, both of the state where they resided and of the United States as a whole. As such, their privileges and immunities were protected by the Constitution. Their movement between states, and their right to work and hold property in any state could not be abridged. The government had the obligation to protect them from violence and unjust incarceration. It was also forbidden from denying them the franchise or the right to participate in judicial proceedings.

Unsurprisingly, the political and legal battles to secure these rights were uphill struggles. Racial egalitarianism was hardly a popular political position in antebellum America, and the fact that a large percentage of Black Americans living in the north were disfranchised did not make the task any easier. Nor did antiblack violence, threatened and actual. Masur also describes less obvious obstacles to legal and political equality. She demonstrates that the widely accepted constitutional and legal structures of nineteenth-century America – federalism and each state’s unquestioned police powers – were potent barriers to racial reform. Nonetheless, one of Until Justice Be Done’s signal contributions is to surprise its readers with the number of successes in this fight: Pennsylvania’s rejection of antiblack laws, Ohio’s stunning overturning of these laws in the 1840s, and Massachusetts’s bold defense of Black sailors, for example.

Indeed, what makes Masur’s narrative a page-turner is her ability to compellingly tell these stories of political and legal maneuvering and explain how civil rights advocates achieved successes, some pyrrhic and others genuine. In the process, readers learn the backstories of many familiar characters who would shape the legal and constitutional structures of Reconstruction-era America: Salmon Chase, Fredrick Douglass, Charles Sumner, and Lyman Trumbull, for example. More significantly, Masur exposes her readers to the Black abolitionists who led the antebellum civil rights movement, people often missing from the traditional narrative of abolitionism and the causes of the Civil War. These people – Samuel Cornish, William Howard Day, John Jones, and Theodore Wright, to name just a few—shaped the meaning of citizenship in a manner that would define antiracist law and politics in the years following the Civil War.

Masur’s deft telling of this narrative makes Until Justice Be Done an easy, rewarding read. The narrative, however, is only one facet of this fantastic book. She also makes a number of compelling analytical points. The first of these is to place the emergence of antiblack laws in the context of an increasingly robust literature about the state in early nineteenth-century America. As Masur notes, antiblack legislation was not sui generis. It was not a locus of intense regulation in an otherwise free society. To the contrary, the legal mechanisms of early nineteenth-century white supremacy sat comfortably within “a variety of interlocking and widely accepted structures of inequality.” (P. 317.) Combating these laws was difficult not simply because of the pervasive racism of antebellum America. The fundamental regulatory presumption that states had broad power to maintain what they viewed as a peaceful, “well-ordered” society inhibited reform impulses. The idea that the state could limit the rights of individuals – their right to move in and out of a community, to work, to hold property, or to vote – was uncontroversial. Women, children, the sick, the poor, “vagrants” and “vagabonds,” and the mentally ill all had their liberties profoundly circumscribed by the power of the state. Thus, the participants in the first civil rights movement had to overcome not simply a legal and political order suffused with white supremacy, but also a presumption that a state could routinely exercise its power to limit the fundamental rights of most of its inhabitants.

Until Justice Be Done also casts a new light on the history of Reconstruction and the meaning of the Fourteenth Amendment. By connecting the politics of Reconstruction to antebellum ideas about citizenship and civil rights, Masur helps her readers fully contextualize the amendment’s limitations. Most obviously, she demonstrates how far astray the Supreme Court wandered in the Slaughterhouse Cases. Until Justice Be Done shows that an expansive definition of “privileges and immunities” was central to antebellum civil rights advocacy. For half a century prior to Reconstruction, the opponents of antiblack laws argued that the privileges and immunities clause of Article IV required the states to recognize specific rights stemming from national citizenship. This was the basis of their argument that laws preventing Black Americans from moving between states or denying them the right to work or hold property on the same terms as others were unconstitutional. This was a debate they lost prior to the Civil War. It was also the basis for the definition of privileges and immunities the Republican Party placed in the Fourteenth Amendment. Put in this context, Masur shows us just how far the Slaughterhouse opinion deviated from the definition of privileges and immunities that had been nurtured for decades prior to its incorporation into the amendment.

Masur’s narrative also allows readers to better understand the state action requirement of the Fourteenth Amendment. Since 1883, civil right advocates have condemned this limitation, suggesting either that the Supreme Court irresponsibly read it into the amendment, or that the framers of the amendment should have anticipated the need for the federal government to directly police the private violence and discrimination that became a central part of Jim Crow. Yet, Masur’s narrative frames the Fourteenth Amendment’s focus on state action in a different light. Until Justice Be Done demonstrates that civil rights activists in antebellum America directed their energies at state action—racist  laws in both the north and the south. Prior to the Civil War, this fight was carried out on a state by state basis with limited success. Accordingly, the framers of the Fourteenth Amendment had a transformative opportunity. They could remake the Constitution in a manner that created a uniform, explicit prohibition on the racist laws of every state. This was the goal that antebellum racial egalitarians had been seeking for decades. Thus, the state action requirement was not limitation. It was a radical, dramatic expansion of the power of the federal government to eliminate white supremacy.

While these analytic innovations sit at the center of Until Justice Be Done, the book is stuffed with other fascinating revelations. It is a treasure trove for readers interested in politics, race, and law in antebellum America. What was the legal and political significance of the right to petition? Where did the colonization movement fit in antiracism politics of the nineteenth century? How did Black Americans create powerful political institutions within a society that sought to subordinate them? How did the relationship between abolitionism and state-level politics cause the collapse of the Second Party System? Masur weaves the answers to these questions into her story of the first civil rights movement. In doing so, she grounds the events leading up to the Civil War and the contours of Reconstruction in a dramatically expanded narrative of nineteenth-century U.S. history and the history of race, pluralism, and democracy in America.

Cite as: Reuel Schiller, The Civil Rights Movement You Haven’t Heard Of, JOTWELL (August 3, 2021) (reviewing Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement (2021)), https://legalhist.jotwell.com/the-civil-rights-movement-you-havent-heard-of/.

The ‘Problem’ of Numbers

Gloria McCahon Whiting, Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, 77 Wm & Mary Q., 3d ser., 405 (2020).

In Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, Gloria McCahon Whiting makes significant contributions to the study of slavery in seventeenth- and eighteenth-century New England. She offers new insights into who made up that labor force, as well as into scholarly debates regarding the utility of quantitative analysis for historians of slavery.

Whiting examines volumes upon volumes of seventeenth- and eighteenth-century probate sources to better understand who lived and labored in Suffolk County, Massachusetts. In this, “the wealthiest and most populous county in New England,” Whiting argues that not only were indentured servants “supplanted early on by a near-complete reliance on African slavery,” but also that local Native populations “never provided a significant source of bound labor in the area.” (P. 407.) The first part of her argument is not one with which most scholars would take issue. Her assertion that local Native populations never made up a significant proportion of the enslaved labor force in the region, however, is more surprising. This argument challenges the scholarship of historians such as Margaret Newell, Wendy Warren, Jared Hardesty, and Linford Fisher, who have argued that large numbers of enslaved Natives played an important role in New England’s labor force well into the eighteenth century.

Whiting’s study is quantitative in nature and based on careful demographic calculations drawn from thousands of records. It required her to count. In the extant 110 volumes of Suffolk County Probate Court records, Whiting found that “wills, inventories, accounts, and other documents filed in the court mentioned 2,160 people in servitude” between 1639 and 1760. (P. 411.) Whiting traced the proportional decline of European indentured laborers over time and the increase in enslaved African laborers. Moreover, Whiting’s findings illustrate the difference in the ways that European indentured servants, enslaved Africans, and Native people, who were both enslaved and indentured by their masters, experienced bondage, and the early date at which New Englanders turned to enslaved labor.

Whiting takes a deep dive into legal documents in this essay, and focuses particularly on wills and the probate records that surround them. Because this is a case study, Whiting’s article speaks only for Suffolk County, “the commercial linchpin of the region,” and the county that “relied more heavily on the toil of people in bondage than … any other.” (P. 407.) If her findings differ from broader New England patterns, they emphasize the importance of considering regions—and in this case particular counties—on their own terms. Suffolk County, she asserts, is not and cannot be a proxy for the rest of New England. Other regions and towns developed different economies and most likely relied on different forms of labor.

But Whiting does more than quantify data. She also discusses the racial categorizations New Englanders used to identify their unfree laborers as a way to trace the racialization of Suffolk County’s labor force during the seventeenth and eighteenth centuries. Here, too, Whiting challenges previous understandings, arguing that the fluidity of “racial terminology” that might have erased Native people from the records in post-revolutionary New England did not exist in pre-revolutionary Suffolk County. Instead, Whiting claims that seventeenth- and eighteenth-century New Englanders identified their bound laborers consistently as “Negro” or “Indian” from entry to entry and did not shift back and forth between terms, and in so doing misidentify their laborers, or use them inconsistently, as was the case in later years. She concludes by providing insight into the ways that probate records can “enable us to trace the contours of Black families by revealing ties of blood and marriage recorded nowhere else.” (P. 429.) Probate records, then, offer more than quantifiable data and can allow scholars to access the lives of those who left little, if any, documentary evidence behind.

The so-called problem of numbers Whiting refers to in the title, then, is not a problem with her numbers, per se, but with the perceived problem of quantitative histories of slavery and the ways in which numbers erase—or fail to provide—information regarding the lived experiences of enslaved laborers. Critiques of quantification, Whiting discusses, arose around the creation of the Trans-Atlantic Slave Trade Database, which provides significant amounts of quantitative data on hundreds of thousands of nameless enslaved Africans. (P. 408 n.9.) And those critiques have continued. Scholars have rightly alerted us to all that “the archive” cannot tell us and the violence it reinscribes on those who experienced enslavement first-hand. Aggregation and the counting of bodies, they argue, tell us nothing about the brutality and horror that defined the institution and, instead, dehumanize the enslaved all over again. But even as Whiting makes plain that this study requires her to count, and is, indeed, about counting, she also acknowledges that the Suffolk County archive allows her to do more than just that. Her work is both quantitative and qualitative and, when possible, Whiting moves beyond the numbers.

Cite as: Allison Madar, The ‘Problem’ of Numbers, JOTWELL (July 5, 2021) (reviewing Gloria McCahon Whiting, Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, 77 Wm & Mary Q., 3d ser., 405 (2020)), https://legalhist.jotwell.com/the-problem-of-numbers/.

Update of Jotwell Mailing Lists

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For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Legal History section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

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There Is No International Legal Order Beyond Capitalism

Ntina Tzouvala, Capitalism as Civilisation (2020).

In recent decades, a new wave of critical literature highlighted how the concept of “civilization” emerged in the 19thcentury as a rubric to judge countries as worthy (or not) of admission to the European order of international law. Today this scholarship is commonly referred to as the “historical turn” in international legal scholarship. Much of this literature explored the problematic racialized origins of the term “civilized,” as well as its persistent impact on international law today. In this context, Ntina Tzouvala’s Capitalism as Civilisation presents a next-generation interpretation of the legacy of “civilization” of international law today.

Tzouvala’s book is ambitious on a number of fronts. She approaches “civilization” not as a singular term but as an argumentative pattern driven by an oscillation between what she calls the “logic of improvement” and the “logic of biology.” “Improvement” here refers to international law’s embrace of progressive universalism, and “biology” refers to assertions of immutable cultural difference. While these ideas are seemingly at odds, Tzouvala emphasizes how these dual logics exist in productive tension. Together, they kept those once deemed “uncivilized” as perpetual objects of needed reform and irresolvable incompatibility.

But Capitalism as Civilisation is even more ambitious than simply providing this new framing of the now well-established “historical turn.” The book can be read as a generational statement about what critical scholarship on international law should and can be. Within a single volume it attempts to provide a convincing synthesis of core tensions in the field, if not in critical scholarship more generally. With care and confidence, Tzouvala’s aims to integrate material analysis into the predominately discursive and deconstructive focus of her critical predecessors on the indeterminacy of international law.

Like many today working under the frame of “law and political economy,” Tzouvala wants to avoid Marxist scholars’ dismissal of discursive approaches while still arguing for the necessity of a “materialist framework for understanding legal indeterminacy.” (P. 38.) In what could be called nothing less than the holy grail of critical scholarship, the book seeks to fuse both “epistemological relativism and ontological realism.” (P. 13.) To do so she takes up how the creation of the modern international legal system was inseparable from the creation of the modern international economic system—for Tzouvala, understood as the spread of global capitalism.

Her first chapter delves directly into melding an understanding of the expansionist nature of global capitalism and its interplay between her two logics in 19th century international legal thinking. In her second chapter, she gives specific focus to the now-classic example of extraterritorial regimes as premised on the empirical “improvement” of domestic legal systems (as generally judged through comparison with idealized forms of capital-friendly economic regulation) but ever-susceptible to arguments of “biological” cultural incommensurability to shift the proverbial goal-pasts. Similarly, she explores how the international abolition of slavery was turned against colonized countries as a lever to induce reforms amenable to modern wage labor markets.

Her next three chapters link together the early 20th and 21st centuries to show the way in which the language of international law repackaged the logics of improvement and biology even after the formal demise of “civilization” as a central frame. Chapter 3 looks to the post-World War I Mandate System where, in particular, struggles over the British presence in Iraq after the Anglo-Iraqi Treaty set into collision new alchemies of informal power, “good governance,” and essentializing cultural reasoning. Chapter 4 primarily centers on the “South West Africa saga” from the late 1940s to the early 1970s which saw the International Court of Justice confronting challenges by Liberia and Ethiopia to South Africa’s presence in modern Namibia. For Tzouvala, the outcome of this judicial contest required displacing concerns with exploitative economic development as a basis of critique to normalize a more circumscribed language of judicialized rights. Chapter 5 brings the analysis into the contemporary era by showing how the invasion and post-invasion administration of Iraq after the second Gulf War, as well as the larger war on terrorism, relied again on both logics to demand particular market reforms while opportunistically falling back on arguments regarding cultural difference for justification or explaining away failure.

In threading her discursive and material needle, Tzouvala argues that activists or scholars who strategically embrace either logic as tools of resistance ultimately contribute to crippling more radical critique. With little fear of the polarizing terrain it has recently induced, she clearly outlines examples where the language of human rights was used to displace systemic critiques of capitalism, and the domestic and transnational social movements that embraced them. Similarly, she provocatively unpacks how this argumentative strategy is redeployed in modern international humanitarian legal vocabulary—exemplified in the recurrently stable set of countries “unable or unwilling” to properly self-govern and thus legitimating external intervention. Here remedying the elision of the material context of economic development—at least as a contested arena of publics rather than technocratic “best practices”—renders the stakes and drivers of doctrinal debates visible.

With such theoretical ambition, Capitalism as Civilization will be off-putting to some who would be uncomfortable with its clear invocations of Marxist legal theory—even as it spends much energy addressing the limitations of its recent critical standard-bearers in her field. Yet, it can be read productively alongside many recent works with quite divergent theoretical positions. For example, her Australian National University colleague Anthea Robert’s recent Is International Law International? provides detailed exemplification of both the specific material and discursive practices by which modern international lawyers continue to assert their unsullied transcendence of cultural chauvinism (while replicating patterns of social and economic inequality in and between nations). Similarly, Gao and Shaffer’s study of the “improvement” of China’s performance at the WTO, and the United States’ concomitant withdrawal, exposes the material consequences when the submerged cultural presumptions of international law are challenged.

Critically, Tzouvala’s broadening of the analysis to include the context of capitalism’s near complete global spread and indigenization is necessary for understanding a changing global order in which the traditional discursive anchors of previous critiques have lost trenchancy. It is clear that terms such as “the West,” or even the more recent “Global South,” struggle to capture the assertive global role of China or the regional rise of ethnonationalist authoritarian politics in India or Brazil—all of which exist in a deeply economically integrated capitalist world order.

Tzouvala’s ultimate audience is still quite specific. Her motivating concern is that recognizing legal, or epistemological, indeterminacy is a wholly insufficient ground for generating an effective radical counter-politics. If advancing a critique of capitalism is not already within one’s normative frame, then there are many places where the book can provide reason to disengage. Still, even for those least-disposed to consider this their own concern, the synthetic breadth of Tzouvala’s work should be read as an effort of intellectual reconciliation that will continue to be at the heart of critical legal scholarship in coming decades in and outside of international law.

Cite as: Jedidiah Kroncke, There Is No International Legal Order Beyond Capitalism, JOTWELL (May 31, 2021) (reviewing Ntina Tzouvala, Capitalism as Civilisation (2020)), https://legalhist.jotwell.com/there-is-no-international-legal-order-beyond-capitalism/.

Rights, Facts, and Roe

Mary Ziegler, Abortion and the Law in America (2020).

For almost half a century, Roe v. Wade has been a dominant presence in debates about the Constitution and the Supreme Court in the United States. Other contentious rulings come and go. (In 1973, the year in which the Supreme Court decided Roe, commentators typically identified obscenity regulation as the most explosive issue the justices faced. No one mentioned Miller v. California at the most recent Supreme Court confirmation hearings.) But Roe remains, year after year, a uniquely urgent and divisive focal point in the nation’s constitutional discourse. In her important and insightful new book, Abortion and the Law in America: Roe v. Wade to the Present, Mary Ziegler explains how the debate over Roe has evolved and why it endures.

This is Ziegler’s third book on Roe’s impact on American society and law. In her first, After Roe: The Lost History of the Abortion Debate, published in 2015, she explored struggles over abortion in the immediate aftermath of Roe. The debate she found in this period was more fluid and multivalent than the pro-choice/pro-life, liberal/conservative, Democratic/Republican dualism that solidified in the 1980s and remains today. In 2018, Ziegler published Beyond Abortion: Roe v. Wade and the Battle for Privacy, an examination of how Roe reshaped legal debates in contexts outside abortion.

For readers of Ziegler’s prior work, her newest book has a familiar feel. She relies on the same research methods she used to such impressive effect in her first two books: archival research, interviews with key players, and analysis of traditional legal sources, such as written opinions, briefs, and oral arguments. She also returns to key themes from her earlier work, locating underappreciated complexities and nuances in debates over Roe, emphasizing the radiating effects of Roe beyond abortion, and placing political social movement activism alongside litigation as mechanisms of constitutional change.

The fresh insights in Abortion and the Law in America come from Ziegler’s decision to follow the post-Roe abortion debate up to the present day. The book begins with a description of our current abortion debate and then asks how we got here. The chronological narrative of the book is basically an extended answer to this question. Ziegler guides the reader through a thoroughly researched, richly detailed, comprehensive historical account of how, across the last half century, pro-choice and pro-life activists and lawyers pursued their agendas. She is particularly insightful in exploring divisions within the abortion-rights and anti-abortion movements as she navigates back and forth between social movement activism, policy developments, and constitutional litigation. Although it’s not hard to discern that her sympathies lie with those who advocate for abortion rights, Ziegler never reduces or caricatures her subjects. She recognizes the principled commitments that drove activists on both sides while also charting their strategic opportunism, inconsistencies, and factionalism.

Within her narrative, Ziegler threads an argument for revising the way we think about the history of abortion rights. She argues that as the leading edge of the abortion debate shifted in the 1980s from demands to ban abortion to battles over “incremental restrictions designed to undermine Roe,” the terms of the debate “changed in ways we have rarely appreciated.” (P. 2.) When pro-life advocates realized that amending the Constitution to end legal abortion across the nation wasn’t going to happen, they turned their focus to pushing more aggressive abortion regulations and overturning Roe in the courts. As a result, contestation over the social effects of reproductive rights joined and often displaced the foundational question of whether the Constitution protects a right to abortion. Arguments about abortion that centered on rights—the right of the mother to reproductive autonomy on one side, the right to life for the unborn on the other—shifted to less absolutist debates about regulatory policy. “The struggle,” Ziegler writes, “has increasingly turned not only on rights-based trumps but also on claims about the policy costs and benefits of abortion for women, families, and the larger society.” (P. 2.)

“Fights about abortion have mirrored much more than core arguments about choice and life,” Ziegler writes, and much of Abortion and the Law in America is dedicated to documenting the proliferation of the grounds of debate. “Battles about incremental restrictions consistently reflected a complex set of beliefs about issues only tangentially related to abortion,” she explains. “The abortion struggle offered a window into disagreements about poverty, personal responsibility, welfare reform, maturity, parenthood, marriage, the health care system, and the trustworthiness of the media and the government.” (P. 211.)

Ziegler argues that, contrary to commonplace assumptions, when the debate centered on the costs and benefits of abortion rather than on the fundamental rights at stake, the issue became more polarized, and the divide between the sides deeper and more enduring. It’s a provocative claim, although it’s not fully clear how one would prove it. If the abortion debate has in fact become more polarized over time, why, of all the possible contributing factors, would we identify this as the cause? Why would a shift in focus from a fight over the medical necessity of particular abortion procedure or about the health benefits of medical regulations be more polarizing than a debate about when life begins or about the relationship between reproductive rights and equal citizenship for women?

There are alternative frameworks to understand how the abortion debate changed as it diffused into related issues. One possibility would be to highlight the ways in which an already deeply polarized abortion debate fueled polarization elsewhere, while polarization elsewhere, in turn, reinforced the polarization on abortion. People’s views on social welfare, gender roles, and scientific expertise certainly inform their views on abortion. But their views on abortion also inform their views on these closely related issues. This is the polarized world in which we inhabit, filled with mechanisms that reinforce and amplify the cultural divisions.

Rights-based claims and arguments about the costs and benefits of abortion are best understood as symbiotic, as overlapping categories between which activists moved frequently and easily. The idea of absolute rights may be useful rhetorically, but in practice they’re non-starters. In American law rights claims unavoidably raised questions about policy costs and benefits. Rights and policy offer strands of abortion framing that are at once antagonistic and complementary, with the salience and content of the categories shifting across time. Rather than a single persistent abortion debate, Abortion and the Law in America reveals a dynamic constellation of overlapping abortion debates.

Ziegler concludes her book by reflecting on how the history of the abortion debate provides insights into possible future developments. One point she emphasizes is that debates about abortion have always been about much more than any single Supreme Court decision. This fact, which Ziegler has demonstrated across her three books, means if the Supreme Court overturns Roe—a development she believes likely with recent appointments to the Court—the basic lines of division over reproductive rights will remain. They will remain because the American people remain divided over not only over abortion but also over welfare policies, gender roles, scientific expertise, and all the other issues that have become inextricably intertwined with abortion. Abortion and the Law in America offers an essential resource to help us understand not only what Roe has accomplished but also what a post-Roe world might look like.

Cite as: Christopher W. Schmidt, Rights, Facts, and Roe, JOTWELL (May 4, 2021) (reviewing Mary Ziegler, Abortion and the Law in America (2020)), https://legalhist.jotwell.com/rights-facts-and-roe/.

A New and Challenging History of Nat Turner and His Rebellion

Christopher Tomlins’s new book, In the Matter of Nat Turner: A Speculative History, is a tour de force. It retells the history of Nat Turner’s famous rebellion with a focus on Turner’s religious motivations. The book begins by explaining the shortcomings of previous accounts of Turner, attempting to reconstruct what might have motivated Turner to decide in August 1831 to lead a group of fellow slaves on a campaign in Southampton, Virginia, “to rise up and kill all the white people.” Tomlins’s book shows how historical speculation and conjecture can be done in a way that is nonetheless solidly grounded in biblical, philosophical, anthropological, and historical context. The book is about Turner, yes, but insofar as it demonstrates the approach—call it “grounded speculation”—it is also a reflection on history itself and what to do as a historian when the historical event you are interested in is simultaneously under-documented and over-interpreted.

Tomlins begins by outlining the problems with two widely-relied upon accounts of the Turner Rebellion, both titled The Confessions of Nat Turner, which co-opted Turner in the service of other agendas. First, there was the contemporary account given by white county lawyer Thomas Ruffin Gray to whom Turner confessed while in prison awaiting trial. Gray produced a very complicated text about which Tomlins writes, “[it] is undoubtedly evidentiary, but evidence of what?” (P. 31.) What follows is a very nuanced reading of the work and what can and cannot be inferred from it.

Secondly, Tomlins critiques the 1967 best-selling book written by white novelist William Styron. Styron purported to be providing a historical “meditation” on the event. However, he was not a historian. Tomlins persuasively argues that Styron was, in reality, using Turner to make sense of the race riots of the 1960’s and to fulfil Styron’s own self-involved fantasy of what he thought of as every Southerner’s duty to come to know “the negro.” Both men treated Turner’s “enthusiasm as insanity.” (P. 11.) And both were profiting by turning Turner’s story into their property. (P. x.)

Tomlins, by contrast, embarks on a “work of recovery and recognition” (P. x) to understand Turner “on his terms.” (P. 22, emphasis in the original.) Specifically, Tomlins analyzes how Turner saw himself as commanded by God to take up, as reluctantly as Abraham did the command to kill his own son, God’s “work of death.” What follows is simultaneously chilling and immensely instructive. Tomlins weaves, often through long and learned footnotes, his own reflections on philosophical topics such as Walter Benjamin’s concept of “divine violence,” central to Tomlins’s conjectures about Turner. (See Pp. 279-80, note 3.)

Tomlins wants most to emphasize the profound religious faith likely underlying Turner’s actions. He argues that faith has been washed out by those who have made but a feeble attempt to understand Turner, Grey who was “irreligious” (P. 86) and Styron who was not interested in religion. The Prologue starts with a of the cover of Styron’s novel (P.1), Chapter 1 with a reproduction of the title page of Gray’s work, and Chapter 2 with a photograph of Turner’s bible. (P. 50.) Tomlins starts the religious reconstruction with the Gospel of Luke because Turner lived all his life in St. Luke’s parish in Southampton County (P. 52), and because of the appropriateness of some of the teachings in this Gospel relating to “reversal” (P. 55) and how “the first [the white slave-owning Virginian] should be last and the last [the slave] should be first.” (P. 61.) As Tomlins describes, Turner “has been widely identified as a lay preacher […] was highly intelligent (that is generally accepted), and he was highly literate […] like Christ he too was thirty years old when [as he put it] the time came to ‘arise and prepare myself.’” (P. 77.)

In addition to a range of other biblical texts, Tomlins also connects Turner’s revolutionary eschatology and his Virginian Methodism to Jonathan Edwards, arguing that Turner likely saw himself as comparable to David in David and Goliath. (P. 79.) Chapter 3 takes up the notion of “divine violence” that Turner saw as demanding his action as a kind of Kierkegaardian “Knight of Faith” with no choice but to obey God’s command whatever ethics and the law said, and however horrifying the consequences. Chapter 4 describes the killings, what Turner called his “work of death,” deliberate and methodical. What was its logic? Tomlins writes that, according to Locke, “killing those who would maintain one in relations of dependence is a means to obtain a property in oneself.” (P. 96.) Perhaps that was the kind of politics that inspired others to follow Turner; yet for Turner, Tomlins emphasizes, it was first and foremost a matter of faith.

Where the earlier chapters deal with the religious reconstruction of what might have been Turner’s mindset and the event itself, the last two chapters of the book, Chapters 5 and 6, deal with the fall out or ripple effects of the rebellion in a fragile and fractious Virginia. The state was split between slave owners in the East and a West with more development-oriented interests. Here we are told about how Turner, “the self-possessed rebel” (P. 141), haunted the state’s Constitutional Convention in 1829-30, controversies over using (discounted) slave labor on public work projects, and debates about emancipation in 1831-32. The rebellion helped support pro-emancipation on the grounds of safety and security, the danger that “proximity” between blacks and whites raised, and the idea, however briefly entertained, from the Western part of the State that “the right of private property must yield to the right of society to be secure.” (P. 181.) The pro-property East, concerned about the loss of their capital in future slaves that would be born and manumitted once they reached the age of majority, pushed back against the idea that this “increase” was not naturally (and legally) theirs. To white Virginians, Turner had to be presented to the public as an irrational and insane aberration, the perpetrator of a wild and random massacre that made no sense and was unlikely to repeat itself. “‘[W]ild and intemperate’ proposals for abolition and emancipation … ‘subversive of the rights of property’” were neither necessary nor welcome. (P. 188.)

This work is very unlike Tomlins’s earlier books given the way that it focuses on a specific event. It is challenging reading for a number of reasons. First, there are the descriptions of the killings in Chapter 4. They put me in the mindset of Truman Capote’s In Cold Blood, another best-selling “true crime” novel from the 1960’s, gripping yet awful in their details. Tomlins presents the killings in a very matter-of-fact and non-sensationalist way that gets the point across but nonetheless left me at least feeling disturbed.

Second, trying to climb inside spiritual and supernatural faith when you do not share it is not an easy thing to do and many readers will likely find themselves in this position. It is challenging for us (just as it was for Gray and Styron) not to secularize such an event. Yet in Turner’s case, Tomlins is asking us to refrain from turning Turner into “a conscript of modernity,” making him into something sensible to us and inappropriately substituting a flat figure for a three dimensional person who was motivated by spiritual and supernatural faith. (P. 280, note 3.)

Thirdly, looking for the logic in “divine violence” or “righteous violence” runs up against abhorrence of violence and the urge to condemn it in any form. Yet it is not our job as historians to try and stand in the same shoes as the Southampton County Court to condemn Turner’s acts (or to try to explain and try to excuse them). The job of the historian is to try to read and understand (especially difficult) events on their own terms and, as Tomlins elegantly puts it at the end of the book, “be ready to read what was never written.” (P. 218.) That imaginative leap is required when it comes to the thinly documented, e.g. the person at the center of the Turner Rebellion. It is just those topics that most deserve our attention, as they will often involve incidents, events, or people that are easy to misunderstand and manipulate into something quite different from who and what they were.

Cite as: Angela Fernandez, A New and Challenging History of Nat Turner and His Rebellion, JOTWELL (April 2, 2021) (reviewing Christopher Tomlins, In the Matter of Nat Turner: A Speculative History (2020)), https://legalhist.jotwell.com/a-new-and-challenging-history-of-nat-turner-and-his-rebellion/.

Negotiating the Boundaries of Slavery and Freedom in the Americas

Becoming Free, Becoming Black examines the fissures in the law that enslaved people throughout the Americas used to traverse a path from enslavement to freedom. Comparative approaches to the study of law and freedom in the past had stressed a divergence between Latin America and the British Atlantic, using Louisiana as a case for contrast or continuity. As the authors of Becoming Free, Becoming Black demonstrate, the situation on the ground revealed a striking degree of similarity in Virginia, Havana, and in New Orleans, and across time. Given the absence of a robust body of slave laws, enslaved people in 17th c. Virginia advanced claims that resonated with Iberian or Cuban claims. The authors posit that legal borrowing was a plausible strategy for enslaved people bringing freedom claims, as there was a fair degree of movement of petitioners between the British and Spanish Atlantic during this time.

The book tells a clear story about what the law of slavery was and how it came about, how it functioned and why it changed over time in three different sites. A secondary title of the book could have been: “A Survey of Free People of Color,” since the presence of sizable communities of free people of color made a significant difference in the ability to sustain freedom claims or to navigate one’s way from bondage to freedom. In all three sites, slaveholders and lawmakers—in a sense one and the same—repeatedly demonstrated serious attempts to crack down on the possibilities by which black people could remain free within a slave society.

Free people of color weakened the stability of the hyphen between black and slave, and black and citizen. In societies deeply committed to and profoundly shaped by slavery, free people of color could be accommodated in exceptional circumstances: as jurists, orators, preachers, soldiers, saints and intercessors. They could be exemplary citizens and proffer evidence of accommodation without threatening a socioracial order. But outside of the exceptions, the legal paths to freedom were consistently limited.

One of the ways that the authors trace these attempts at curtailing freedom is to examine local ordinances and decrees. Ordinances in the societies under review delimited all facets of black social life: where black people could sell wine, or hunt, or sell their wares, where they could gather and congregate to worship, whether they could ride a horse or a mule, and under what conditions they could bear arms. One wonders whether this comparative view of local ordinances is chicken and egg—was it the behavior that prompted the decrees? Or were legislative anxieties so high that they sought to pre-empt the behavior by outlawing it beforehand? The behavior prompting the decrees plainly demonstrates that black people did not comply with these ordinances. Indeed, the repeated nature of the promulgations suggests that very few people took these mandates seriously across the board.

Turning from the law on the books to the life on the ground, the authors weave together the official and judicial records with careful attention to notarial and sacramental records where possible. They show the consolidation of custom and equity into law that respected certain rights even when the tides turned over time. Manumission, and the concomitant right to seek a new owner, never disappeared, although these rights became more fragile and conditional. Though retrenchment occurred in the French codes, they were outpaced by the legislative ban on manumissions in the continental US that tied individual manumission to the larger question of emancipation. Fueled by fears of revolution, and the threat of dispossession, white slaveowners conditioned manumission or movement out of the territory (or out of the country all together in the case of Liberian “repatriation.”) This “tipping point” created real setbacks in Louisiana and Virginia for family integrity and for black prosperity. This was less true in Havana, where the numbers of free people of color were too large for repatriation, and where manumission continued to be registered as a slaveowner’s right. In all three sites, however, we see that black citizenship was undesirable, regarded as problematic, and incompatible with white liberal notions of political belonging.

Slaveowners were intent on retaining the “issue” of their female slaves because of womb enslavement. Yet, women far outpaced the numbers of manumitted slaves vis-à-vis their male counterparts in all three jurisdictions. Children also were freed in greater numbers, sometimes by grace, but more often by the efforts of family members to purchase children at a lower price. Sacramental records thus show that gender, domesticity and generational ties could create conditions for freedom in the womb. The archives reveal complex and often messy tales and shed light on the conditional precarity of children born to mothers in the process of self-purchase. The fact that legislative decrees mandated that self-purchase and/or coartación was an individual right not conferrable to children of the womb is undermined by the evidence across many colonial sites. As the authors note, conditional manumission and womb emancipation were most prominent in societies with large communities of free people of color.

Becoming Free, Becoming Black is a comparative study of slavery that spans different jurisdictions, plantation logics, and most importantly languages. It serves as a model for future comparative work and collaboration. The book encourages us to think through the politics of the archive. Historians of the Iberian world are privileged if not overly endowed with archival sources. Our colleagues in the British Atlantic resort to “critical fabulations”1 to reconstruct the lives of enslaved people, using documents that often portray the darkest hours of the slave trade. This has led many scholars to critique the archive of slavery, or reject it outright as a place of death, lies, and violence for black lives that presages the present condition.

Yet as de la Fuente and Gross show, these archives are not tombs– they are full of cacophonous voices recounting stories of flight, revolution, jurisdictional plurality, wrongful enslavement, and the lackluster performance of the law. Indeed, the full archival offering on display in this book could offer a counterweight to the insistence on the archive of slavery as a place of death.

  1. Saidiya Hartman, Venus in Two Acts, 12:2 Small Axe: A Caribbean J. of Criticism 1, 1-14, (2008).
Cite as: Michelle McKinley, Negotiating the Boundaries of Slavery and Freedom in the Americas, JOTWELL (March 8, 2021) (reviewing Alejandro de la Fuente & Ariela Gross, Becoming Free, Becoming Black: Race, Freedom and Law in Cuba, Virginia, and Louisiana (2020)), https://legalhist.jotwell.com/negotiating-the-boundaries-of-slavery-and-freedom-in-the-americas/.

The Pleasures of Method

Henry M. Cowles has written an absolutely brilliant book that traces the history of the idea of “the scientific method” from Darwin to Dewey. Although Cowles’ intended audience is historians of science, the book has important and tantalizing implications for those interested more generally in the twentieth-century modernist turn to method, process, procedure, and technique. This is a turn that American legal historians will recognize in the massive emphasis on procedure and process that marked twentieth-century American legal thought, beginning with the rise of the administrative state in the early twentieth century and reaching its apogee with the Legal Process School in the 1950s and 1960s.

The conventional account of the modernist turn to method runs as follows. Around 1900, thinkers in diverse realms of Euro-American intellectual life—ranging from law to literature, mathematics to music, physics to painting—became newly aware of the rickety scaffolding propping up their disciplines and endeavors. What were once deemed established truths, unassailable rationalities, given moralities, and transcendental aesthetic norms suddenly seemed spurious, the product of nothing but history, the tottering fabrications of fallible men. In the American legal context, this moment is exemplified in the scholarly writings, addresses, and judicial opinions of Oliver Wendell Holmes, Jr. The modernist moment was famously disorienting, simultaneously frightening and challenging, at once fraught with promise and uncertainty. Old moorings had come undone. How was one to make sense of the world? How was one to proceed?

Although responses varied widely depending upon discipline and national tradition, one broad important trend reverberated across diverse fields and formations. Thinkers increasingly turned away from a conception of knowledge as ends, truths, substances, and foundations and towards knowledge as tools, means, methods, procedures, processes, protocols, and techniques. This was true of the sciences, the principal focus of Cowles’ book. As he puts it, science went from being “something like knowledge” to becoming “a tool for thinking.” (P. 6.) But the trend extended far beyond the scope of Cowles’ study. A creature of the early twentieth century, scientific management theory, applied alike in government bureaucracies and corporations, placed ends firmly in the background as a knowledge of means, methods, and processes took center stage. Artists and writers foregrounded in their work their means of production—painterly technique or language itself—instead of the object those means had once served to represent. In the 1940s, articulating a development that was already decades-old when he was writing, the Legal Realist scholar Karl Llewellyn would argue that law was not so much ”what courts have decided” as it was “how they go about deciding cases, and how they use the authorities with which they work, and how and why those authorities themselves came into existence,” in short, that law was primarily a method or way of doing things.1

Philosophy was hardly immune to this sweeping re-orientation. Indeed, it played a central role in bringing it about. American philosophical pragmatism, the United States’ most celebrated homegrown philosophical tradition, insisted that ideas mattered principally insofar as they became means or tools and were put to work in the world. Early in his book, Cowles invokes John Dewey’s How We Think (1910), in which Dewey announced the five sequential steps of what came to be seen as the blueprint for “the scientific method,” beginning with a “felt difficulty,” moving on to the identification of a hypothesis, and ending with “observation and experiment leading to its acceptance or rejection,” in short, the testing of the tool/hypothesis in the world of facts. (P. 2.) If Dewey was a key figure in the articulation of “the scientific method”—and thus in the reorientation of modern science from substance to method—it is important to emphasize that Dewey’s shadow (and hence the shadow of “the scientific method” as he imagined it) fell over fields extending well beyond the sciences to law, politics, education, and even the arts.

In a series of chapters that offer brilliant, penetrating, and highly self-assured readings of the writings of nineteenth- and early twentieth-century Anglo-American philosophers, philosophers of science, and scientists, Cowles gives us a history of how we got to Dewey’s How We Think. It is Cowles’ origin story—if a concept as simple as that of an “origin story” can be applied to so sophisticated a book—that is of interest.

As it emerged from the eighteenth century, Cowles argues, British science was still tethered to—and continued uncritically to venerate—Baconian empiricism. As revealed in the writings of Herschell, Whewell, and others, however, British philosophers of science were beginning to insist on the importance of hypothesis as a way for the scientist to proceed. Scientists could not begin from a brute collection of facts; they needed the conceptual leap into the void that the hypothesis represented. Of course, once formulated, the hypothesis would have to make its way in the world and be tested against the facts. It would succeed or fail based on how it would fare.

What Cowles shows dazzlingly is how, through a set of complex back-and-forth journeys (hence: no simple origin story), the injection of hypothesis into the empiricist terrain of British science came to be mirrored in the Darwinian account of nature itself and vice versa. Even as British scientists were coming to accept the idea that the scientific method should consist of hypotheses tested against facts, the Darwinian organism came to be seen as itself a kind of hypothesis as it confronted its environment, either to flourish or perish therein. And if evolution was neither more nor less than “the method of nature,” as the Darwinian account came to be understood to be, would that not also necessarily be the way in which the human mind proceeded, as a continual hypothesizing of ideas and a trying out of those very ideas in the world? As Cowles proceeds, exploring contexts ranging from the study of animals to the ethnography of “savages” to psychologists’ study of children, the link between Darwin and Dewey—a link of method—comes gradually into view. As exemplified in Dewey’s 1910 articulation of “the scientific method,” pragmatism’s “trial-and-error” approach to the world was, if one follows Cowles’ argument, nothing other than the Darwinian “method of nature” itself.

The star of the show in Cowles’ book is reflexivity. As philosophers and scientists thought harder and harder about the problem of knowledge, training their gaze relentlessly outward and inward, the lines between subject and object, mind and world, investigator and investigated, blurred and eventually vanished. Objects of inquiry became versions of the subjects performing the inquiry, even as those subjects rendered themselves objects. Cowles writes of his subjects’ “ratcheting up the reflexivity of the mind sciences” (P. 142), one of many comparable characterizations in the book, but one gets the impression that “ratcheting up … reflexivity” is as much Cowles’ own intellectual commitment as it is that of his nineteenth-century subjects. The reader senses Cowles’ enjoyment of his own bravura performance in talking about the bravura performances of his subjects. Here, too, then, investigator and investigated mirror one another, historian becoming archive and vice versa, reflexivity always leading to more of itself, although one is left wondering whether Cowles’ nineteenth- and early-twentieth century subjects were as invested in the pleasures of reflexivity—and the pleasures of method—as he so evidently is.

Cowles is not the first scholar to have explored the connections between evolution and pragmatism. Many have recognized that Darwinian evolution, together with pragmatism, played a crucial role in destabilizing the foundations of the Euro-American disciplines around 1900. But what Cowles does that is arresting, in my view, is to show to spectacular effect how the Darwinian “method of nature” underlies (even as it mirrors) the pragmatist method. Just as nature tested its hypotheses in the world, the Deweyan pragmatist (himself a part of nature) would try out his ideas in the real contexts in which he or she lived and worked. Cowles thus reveals that the pragmatist method—with its (to me) maddening Teflon-like resistance to critique and its bland and ubiquitous “but what else could there possibly be?” correctness—itself has a concrete historical grounding in the Darwinian understanding of nature and the related methodological crises of nineteenth-century Anglo-American science. Far from being a response to the modernist vanishing of foundations, Cowles shows, the pragmatist method remained anchored in an understanding of nature as foundation, where the foundation was, of course, method. In The Promise of Pragmatism (1994), the intellectual historian John Patrick Diggins articulated the modernist/pragmatist focus on method as follows: “Without access to the objectively real, the philosopher settles for the processes of knowing instead of the thing known.”2 But Cowles seems to suggest that, far from “settl[ing] for the processes of knowing instead of the thing known,” a tragic maneuver for a newly disenchanted world, the pragmatist philosopher might instead have been instantiating in his thinking something like “the objectively real,” namely, nature’s method. In other words, Cowles’ leaves us with the conundrum of puzzling through the joining of the anti-foundational modernist turn to method, on the one hand, with pragmatism’s embrace of nature’s method as foundation, on the other, forcing together yet again that which we take to be opposites, anti-foundationalism and foundationalism.

Cowles does not pursue, except perhaps obliquely, the conventional story of the modernist turn to method in law and elsewhere with which I began this review. But his story about the connections between the Darwinist “method of nature” and the pragmatist/modernist method must compel some rethinking of the conventional story, including the current narrativization of the development of twentieth-century American legal thought. Precisely what kind of rethinking is another matter. Towards the end of the book, Cowles recognizes that the larger turn to method in the twentieth-century would repeatedly exceed or overshoot its imagined referent in the Darwinian “method of nature.” After all, brute nature did not ordinarily become “aware” of its history with a view to changing it; its methods of proceeding were always realized in and by its results. By contrast, the early-twentieth century modernist/pragmatist, aware that history had left his world devoid of foundations, turned to method without any assurance that the method would be confirmed by its results. The goal was frequently to transform the existing world in one way or another, with results that ranged from the benign to the disastrous. At the same time, the link between the Darwinian “method of nature” and the diverse methods that were adopted in different disciplines and endeavors (for example, the turn to procedure in law) is far from obvious. None of this is Cowles’ problem. He has written a wonderfully smart book that complicates our understanding of modernism by giving us a unique account of its past.3

  1. Karl Llewellyn, The Crafts of Law Re-Valued (1942) in Karl Llewellyn, Jurisprudence 318 (1962) (emphasis in original).
  2. John Patrick Diggins, The Promise of Pragmatism: Modernism and the Crisis of Knowledge and Authority 48 (1994).
  3. I wish to thank Anne Kornhauser for comments on this review.
Cite as: Kunal Parker, The Pleasures of Method, JOTWELL (February 5, 2021) (reviewing Henry M. Cowles, The Scientific Method: An Evolution of Thinking from Darwin to Dewey (2020)), https://legalhist.jotwell.com/the-pleasures-of-method/.