Llewellyn's Stand Against Lynching

I want to talk about a foreword that Karl Llewellyn wrote for a brief that Charles Hamilton Houston and two other lawyers put together to urge the federal prosecution of lynchers in Tuscaloosa, Alabama in 1933.  The brief itself is worthy of some comment down the line.  It was first given to the DOJ and then reprinted (with Llewellyn's foreword) and widely distributed.  It made two points -- that the Reconstruction-era federal statutes supported federal prosecution of lynchers and that the facts in this case also supported the prosecution.

Some scholars -- primarily my UNC history colleague Genna Rae McNeil and Patricia Sullivan -- have written about the brief.  But so far as I can tell, no one has dealt with the Llewellyn foreword.  And though the foreword is extremely brief (it runs to only two paragraphs), I think it warrants some attention.  For two primary reasons.  Probably the less important reason is that it expands our sense of Llewellyn's commitment to racial equity -- and that of legal realism, too.  We often think about legal realism as primarily about private law and as relatively uninterested in race; this will help us remember that the Realists were fighting alongside civil rights advocates.

But maybe more importantly this tells us about Realism in action.  For it shows how Llewellyn turned to the techniques of Realism to argue for the prosecution of lynchers.  He relied on federal statute law and then turned to the facts on the ground in Tuscaloosa to understand what the local "law" was (a white supremacy that refused to give equal treatment or protection to African Americans).  Where so much ink has been spent on the philosophical parts of Realism, such as their supposed rule skepticism, the foreword shows that Llewellyn appealed to federal statute law.  He wanted that law applied so that African Americans could benefit from the rule of law construed as equal treatment.   Llewellyn wasn't skeptical of the federal statute (and he had a sense of equal protection and thought that should be upheld); he was in favor of equal protection of the law to oppose and overcome the "local" law.  The facts he turned to told that the local law (practices) were out of keeping with the federal law and that justified the intervention of a higher power (the federal government) to restore the rights of African Americans.  That is, Llewellyn appealed to federal law when the local practices were unfair.

I think this shows two things of importance about Realist methods.  First, that the close focus on facts was used to indict law.  This was a method of clear thinking that had appeal to a lot of different reformers -- from Emerson to civil rights movement.  Really, probably before Emerson -- this sounds a lot like Thomas Paine's Common Sense.  I don't think that the Civil Rights Movement learned this method from Realists -- if anything, the arrow of influence pointed the other way.  But what is more likely is that reformers of many different backgrounds found the appeal to facts to be supremely useful.  The second point is that this reveals how Realism's method and its chief practitioner used statutes and case law.  This demonstrates that Realists did not just use facts to determine what "law" was -- they used facts in conjunction with statutes and case law to remake law and legal practices. 

Here is the abstract for my short paper on the foreword, "'cold legal points into points of flame': Karl Llewellyn Attacks Lynching.'

This essay puts into context a Foreword that Karl N. Llewellyn wrote for a NAACP brief urging the Department of Justice to prosecute an Alabama sheriff for permitting the lynching of two young men in July 1933. They were accused of assaulting and murdering a young white woman in Tuscaloosa County, Alabama. The lynchings took place in the wake of the Scottsboro, Alabama prosecutions and many saw the lynchings as a response to Scottsboro and also to the presence of lawyers from the International Labour Defence who tried to represent the Tuscaloosa defendants. The lynchings, it seemed, were designed to send a message to African Americans throughout the state.

Llewellyn’s long-forgotten Foreword, which no previous scholars have written about, expands our understanding of Llewellyn and of the role the methods of Legal Realism could play in the Civil Rights Movement. Llewellyn looked at the facts to argue that community members and government officials worked together to protect white supremacy from “challenge even in the courts of law.” Such facts turned “cold legal points into points of flame” and made the case for federal intervention.

The brief, thus reflecting the methods of Realism, focused on close examination of facts to see the world fresh and to make the case for reform. It also suggests that the Civil Rights Movement and Realism may have drawn inspiration from a common well of cultural ideas to go back, see the world as it is, and to hold up those facts to the public, and in that way to change the law and legal practices.

You can read my short paper here.  The image is the Tuscaloosa County Courthouse where some of the events central to the lynching occurred.  

Comments

[Steve L.]

Great post.