The Faculty Lounge

They Were Her Property: Frequency of Female Ownership

I have a fan of Stephanie Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South.  (I have blogged about three years ago.)  And I want to write some Jones-Rogers. But this concerns Benton Wishart and Trevon D Logan's Her Property Transactions: White Women and the Frequency of Female Ownership in the Antebellum Era (National Bureau Economic Research).

Wishart and Logan are crucial for understanding white women as slave owners in the South. In the antebellum New Orleans market, the women were about 16% sellers and 17% buyers. Pp. 17-18. That is an extraordinary number of white women's slavery transactions, but that is less than 40% of white women's slavery transactions. That is 16% sellers or 17% buyers. Substantial and important.

 

Trivia: Southern Store

Dorthea Lange photographed this in July 1939.

 

Where is this?

 

Presidential Citizens Medal

I do not care about Liz Cheney receiving the Presidential Citizens Medal award. I can talk about Louis Lorenzo Redding. He was also getting the Presidential Citizen Medal. He was a Civil Rights leader in Wilmington, Delaware.  Redding was part of the NAACP that challenged the Brown v. Board of Education. After graduating from Brown University for college and graduated from Harvard Law School. He died in 1998. But the important thing for me, Mrs. Redding was my trig teacher in the 10th grade! 

Jurisprudence of Antebellum Phi Beta Kappa Addresses

Al Brophy put up a new paper:

Ralph Waldo Emerson spoke at Harvard University in 1837 in a Phi Beta Kappa address. That address known as American Scholar reaches for individual expression, not history and social hierarchy. There are many Phi Beta Kappa addresses, both before and after him. Many Transcendentalists orators at Harvard and a few anti-Transcendentalists orators as well. And many others who are optimists, technology, and utilitarians at many colleges. After the Fugitive Slave Act in 1850, three speakers of Harvard, Brown, and Yale advocated law, rather than conscience. All three of them were lawyers.

There was a rich diversity of opinion: Transcendental oratory, anti-Transcendentalists, and optimist, technological, and utilitarian thought. They were concerned about humanity versus the law.

Harvard and Yale were different: Harvard has a lot of Transcendentalists; Yale has a lot of anti-transcendentalists. Here is the download. 

Image: The Unitarian Church at Cambridge is the place where Ralph Waldo Emerson's delivered American Scholar.  I will be putting up some others, soon -- I hope... (Perry Miller's Life of the Mind in America: From the Revolution to the Civil War, a bibliography, next up.)

 

They Were Her Property: White Women as Slave Owners in the American South

Stephanie E. Jones-Roger "makes a bold argument about the role of white women in American slavery.... Stephanie E. Jones-Rogers draws on a variety of sources to show that slave-owning women were sophisticated economic actors who directly engaged in and benefited from the South’s slave market. ... [E]nslaved people were often their primary source of wealth. Not only did white women often refuse to cede ownership of their slaves to their husbands, they employed management techniques that were as effective and brutal as those used by slave-owning men. White women actively participated in the slave market, profited from it, and used it for economic and social empowerment. By examining the economically entangled lives of enslaved people and slave-owning women, Jones-Rogers presents a narrative that forces us to rethink the economics and social conventions of slaveholding America." (Yale University Press.)

This is an important book. A very important book. A couple of thoughts. First, a few white women Southerners were disgusted by slavery. Stephanie Jones-Rogers recognizes this; Angelina and Sarah Grimke sisters were very against slavery. (212 n.40.) Second, Southern slave-owner females were (for the most part) proslavery. Third, Southern white slave-owners males were worse than Southern white women slave-owners mostly (e.g., 8-10, Martin v. Georgia, 25 Georgia 494 (1858)).

In the Matter of Nat Turner

Christopher Tomlins, In the Matter of Nat Turner (Princeton University Press, 2020):

In 1831 Virginia, Nat Turner led a band of Southampton County slaves in a rebellion that killed fifty-five whites, mostly women and children. After more than two months in hiding, Turner was captured, and quickly convicted and executed. In the Matter of Nat Turner penetrates the historical caricature of Turner as befuddled mystic and self-styled Baptist preacher to recover the haunting persona of this legendary American slave rebel, telling of his self-discovery and the dawning of his Christian faith, of an impossible task given to him by God, and of redemptive violence and profane retribution.

Much about Turner remains unknown. His extraordinary account of his life and rebellion, given in chains as he awaited trial in jail, was written down by an opportunistic white attorney and sold as a pamphlet to cash in on Turner’s notoriety. But the enigmatic rebel leader had an immediate and broad impact on the American South, and his rebellion remains one of the most momentous episodes in American history. Christopher Tomlins provides a luminous account of Turner’s intellectual development, religious cosmology, and motivations, and offers an original and incisive analysis of the Turner Rebellion itself and its impact on Virginia politics. Tomlins also undertakes a deeply critical examination of William Styron’s 1967 novel, The Confessions of Nat Turner, which restored Turner to the American consciousness in the era of civil rights, black power, and urban riots.

A speculative history that recovers Turner from the few shards of evidence we have about his life, In the Matter of Nat Turner is also a unique speculation about the meaning and uses of history itself.

Talking About Black Lives Matter and #MeToo

In April, 2019, the Wisconsin Journal of Gender, Law & Society sponsored a symposium on "Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century." Instead of preparing individual papers for publication, the speakers at the symposium collaborated on a joint essay--written in a conversational style--that both captures and extends salient portions of the symposium discussion. The essay--written by Linda Greene (Wisconsin), Lolita Buckner Inniss (SMU), Mehrsa Baradaran (UC Irvine), Noa Ben-Asher (Pace), Bennett Capers (Brooklyn), Osamudia James (Miami), Keisha Lindsay (Wisconsin, Political Science & Gender and Women's Studies) and me is now available on SSRN.

Here is the abstract:

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, implications, and future of Black Lives Matter and #MeToo.

This essay organizes around internal and external spatial metaphors and makes five schematic moves. First, internal considerations ground comparisons of the definitions, goals, and ideas of success employed by or applied to Black Lives Matter and #MeToo. Second, external concerns inspire questions about whether both movements may be better understood through the lens of intersectionality, and relatedly, what challenges these movements pose for an intersectional analysis. Third, a meta-internal framework invites inquiry into how the movements shape the daily work of scholars, teachers, lawyers, and community activists. Fourth, a dialectical external-internal frame drives questions about the movements’ effects on law and popular culture, and the reciprocal effects between those external influences and the movements themselves. Returning to an external, even forward-looking, approach, we ask what the next steps are for both movements. This five-part taxonomy frames the inquiry into where the Black Lives Matter and #MeToo movements are located individually, but also where they are co-located, and, perhaps most importantly, where they are going.

The full essay is available here.

A Girl Stands at the Door

Few Supreme Court rulings in history have approached the importance of the 1954 case of Brown v. Board of Education. In overturning the notorious case of Plessy v. Ferguson, the Supreme Court in Brown unanimously held that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

Brown is rightfully celebrated as a great chapter in American history. But do we really know the whole story of how the case arrived at the Supreme Court?

The 1968 Fair Housing Act

Earlier this month marked the 50^thanniversary of the passage of the 1968 Fair Housing Act. On March 1, 1968, the Kerner Commission issued its report to Congress on race relations in the United States, warning that “America is dividing into two societies, black and white, separate and unequal.”  According to the Kerner Commission, one of the chief manifestations of this inequality was residential segregation, which relegated Blacks to crowded urban ghettoes. Congress responded to the Kerner Commission report with the 1968 Act, an attempt to reduce residential segregation and provide access to economic opportunities for people of color.  Despite the urgency of the report, the Act stalled in Congress until the assassination of Martin Luther King, Jr. sparked nationwide riots in inner cities. The Fair Housing Act is far-reaching.  Among other provisions, it requires the federal government to engage in affirmative action to integrate federally owned and subsidized housing.  Unfortunately, the Act’s anniversary passed with little fanfare.

Two provisions of the 1968 Fair Housing Act were based on Congress’ power to enforce the 13^thAmendment.  The first, the “Anti-Blockbusting Provision,” prohibits realtors from using race-based rumors to scare people into selling their homes at a reduced rate.  The second, the 1968 Hate Crimes Act, makes it a crime for a person to interfere in certain “federally protected activities,” including economic activities, on the basis of their race.  According to New York Senator Charles Goodell, “the 13th amendment to the Constitution forever barred slavery and involuntary servitude in the United States.  It was viewed by those who had approved it as abolishing not just enforced service of one person for another but as a guarantee to all citizens, of the outlawing of all the badges and incidents of slavery.  One hundred and three years after its adoption the Congress has yet to remove all the disabilities of that servitude.”  Like the 1866 Civil Rights Act before it, the 1968 Fair Housing Act addressed the badges and incidents of slavery.

Given the significance of the Fair Housing Act, it’s surprising how little acclaim the Act received on its April 11 anniversary.  On the other hand, the 1968 Fair Housing Act was controversial when it was enacted, and its wide-reaching mandate is largely unenforced.  According to one of the act’s sponsors, Walter Mondale, “The public servants tasked with implementing it have often forgotten — or refused to pursue — its ultimate goal of building an integrated society.”  Mondale points out that federal officials balked at enforcing the Act’s integration mandate until the Obama administration.  Now, the current Secretary of Housing and Urban Development, Ben Carson, referred to those Obama era regulations as “mandated social engineering.” 

Rather than celebrate the Act’s anniversary, Secretary Carson seems intent on undermining it.  For example, Secretary Carson recently removed anti-discrimination language from HUD’s mission statement.  As advocates for civil rights struggle to maintain hard won gains from the past 50 years, comprehensive measures like he 1968 Fair Housing Act seem sadly anachronistic.  However, 50 years after the Kerner commission report, little has improved.  Blacks experience unemployment at twice the rate as whites, and according to a recent study, our cities and schools are re-segregating.  Try as we might to ignore and deny it, people of color in our country are still suffering from the badges and incidents of slavery.

Maynard on "How the NCAA Infringes on the Freedom of Families"

_{Goldburn P. Maynard Jr. (Louisville) has published in the Wisconsin Law Review Online his essay "They're Watching You: How the NCAA Infringes on the Freedom of Families."  Here is an excerpt:}

_{This Essay argues that the NCAA’s surveillance of the family and enforcement of its rules amount to a sumptuary restraint on the families of talented NCAA athletes. In order to keep its cartel in place, the NCAA must bar not only the athlete but everyone in his family from extracting any value from his talent. Luxury purchases are in effect barred for poor families. This is where the NCAA’s enforcement and investigative arms step in. Disproportionately, the families of black athletes are put on notice that any signs of extravagant consumption (that is, beyond the level they should be able to afford) will lead to investigations and potential suspensions. At the moment when these families should be happiest, they have to worry lest they give off any appearance of living beyond their means. I argue that the NCAA’s rules disproportionately disadvantage poor individuals of color. This underscores the inherently unjust nature of the college sports system and the complicity required to keep it in place. * * *}

_{The NCAA’s rules affect all athletes, but they disproportionately disadvantage black ones. Once we limit the college athletic arena to the big sports (i.e., football and basketball) and the revenue generating schools, the statistics are stark. A recent study by Shaun Harper found that black men made up only 2.5 percent of undergraduate students enrolled across all 65 such institutions, but they comprised 56 percent of basketball teams and 60 percent of football teams. The study also showed that 16 percent of those coaches at these schools were black. The average salary for the 65 athletics directors in the major conferences was $698,755, but just 14.7 percent of them were black. And none of the commissioners of those conferences, who earned on average $2.58 million annually, were black.}

Citations omitted. The full essay is available here.

The essay draws on financial history, sports law, family law, theories of punishment/discipline and critical race theory to provide a new spin on a topic that may be familiar to many sports fans. In a footnote, the author acknowledges that the University of Louisville is currently subject to NCAA sanctions and has weathered quite a few NCAA scandals (see, e.g., here). It is not lost on me that I’m a professor at a school currently suffering sanctions.  Professor Maynard writes, "Fortunately, the NCAA has made itself so unpopular that no one should suspect that there is a causal connection" between his employer and his criticism of the NCAA.

Call for Papers: Upcoming Conference on Cooper v. Aaron

Below is a call for papers for an upcoming conference at the University of Arkansas - Little Rock William H. Bowen School of Law.  According to Associate Dean Terri Beiner, "we hope to have some Constitutional Law professors focus on Cooper in the context in which the case came down as well as professors who will look at its contemporary implications. The symposium will also include as well a panel of people in the community who were present during and participated in the events as they unfolded."  This is sure to be a great conference!

Call for Papers 

University of Arkansas at Little Rock Law Review 

The Vitality of Cooper v. Aaron after 60 Years 

The Law Review of the University of Arkansas at Little Rock William H. Bowen School of Law is pleased to announce a call for papers for its 2018 Symposium. “Cooper v. Aaron: Still Timely at Sixty Years,” to be held on Friday, September 28, 2018.  

Sixty years ago, the United States was roiled by the struggle to overcome racial segregation. John and Thelma Aaron and others filed suit in federal court in Arkansas for the purpose of integrating Arkansas schools subsequent to Brown v. Board of Education. This lawsuit led to a federal court order to integrate the Little Rock public schools and the subsequent turmoil surrounding the attendance of Central High by the Little Rock Nine. 

The state government continued to resist desegregation, however. The Little Rock School Board sought to postpone implementation of its citywide school desegregation plan for almost three years because of public opposition. Ultimately, the case reached the United State Supreme Court, which met in special session for only the third time in its history, in August and September 1958 to hear oral argument. The unanimous per curiam opinion of the court in Cooper v. Aaron held that state government officials could not suspend their desegregation efforts in the face of violent opposition because defying the Brown decision was tantamount to breaking their oaths to uphold the Constitution.  

Cooper resoundingly established the supremacy of the federal constitution but it also established the more controversial notion of the supremacy of the Supreme Court in interpreting the Constitution. 

The Law Review of the University of Arkansas at Little Rock William H. Bowen School of Law is proud to present a symposium on the significance of Cooper v. Aaron on its sixtieth anniversary. The issues raised by Cooper are still the subject of vibrant debate. Increasingly, state and local officials seek to avoid enforcing or following federal mandates ranging from the Obergerfell same sex marriage decision to the Affordable Care Act’s individual mandate to enforcing immigration law. We seek articles on these and other topics as well as articles on the local significance of Cooper and its continuing vitality in an age of political and legal polarization.  

The Law Review of the University of Arkansas at Little Rock William H. Bowen School of Law will publish articles from the symposium in an issue of volume 41 slated for release in the spring of 2019. We encourage all interested potential authors to respond. Authors should submit an abstract and a cover letter to Shelby Howlett, Symposium Editor, at [email protected]. The deadline for submissions for article proposals is May 31, 2018; completed articles will be due on November 30, 2018. Please feel free to email Ms. Howlett with any questions. 

Fugitive Slaves as Constitutional Actors

When constitutional law professors talk about constitutional law, they most often refer to court cases, especially the United States Supreme Court’s interpretation of the Constitution.  However, I am more interested in popular constitutionalism, constitutional interpretation outside of the courts.  Political advocates engage in popular constitutionalism when they invoke the constitution to support their claims.   Sometimes political activists expressly invoke constitutional language and make arguments that sound in law.  Other times, they invoke more general constitutional values in their political rhetoric.  Perhaps the most eloquent form of popular constitutionalism occurs when people with little or no legal knowledge demand rights that sound in constitutional law.  Fugitive slaves were one such group of constitutional actors. 

Prior to the Civil War, some antislavery argued that slavery was unconstitutional.  For example, they claimed that slavery violated the right to liberty under the Fifth Amendment Due Process Clause and natural rights which, they claimed, were protected by the Preamble to the Constitution.  Some antislavery constitutionalists made arguments before courts, which were ultimately unsuccessful.  However, most antislavery constitutionalists made their arguments in the political context.  They formed antislavery parties, including the Liberty and Free Soil, Free Labor parties.  Many of these popular constitutionalists were founders of the Republican Party. 

A second group of antislavery activists participated in the underground railroad, which helped fugitive slaves to escape.  For example, in 1858 leaders of the town of Oberlin, Ohio, acted together to rescue an alleged fugitive slave who had been kidnapped.  Several of them were tried in federal court for violating the 1850 Fugitive Slave Act, and two were ultimately convicted.  These activists knew that federal law prohibited them from assisting fugitive slaves, but they claimed that they followed a higher law under which slavery was illegal. They did not expressly invoke the constitution, but they asserted their right to resist federal law.

The fugitive slaves themselves were a third group, at the heart of this resistance.  Fugitive slaves asserted their own rights claims by attempting to escape slavery.  Fugitive slaves defied all odds, and certain punishment, if not death, if they were captured.  Their goal was to escape to northern states and into Canada, where they could live a free life.  Some fugitives sued in courts for their freedom, and surprisingly, some won.  But most fugitive slaves had to hide from slave catchers, under constant threat of capture (as were free blacks).  With their actions, fugitive slaves served as a catalyst for constitutional change.

Fugitive slaves brought about a constitutional crisis.  Tensions mounted between people in northern states such as Ohio, who wanted to protect fugitive slaves, and southern slave owners, who believed that they had a right to have their slaves returned to them.  Southern slave owners had the law on their side.  Federal Fugitive Slave Acts enforced their right to retrieve their slaves.  In the Dred Scott decision, the United States Supreme Court agreed that slaveholders had a constitutional right to own slaves, rejecting Scott’s claim that he could free himself by fleeing to a free state or territory. 

Nonetheless, fugitive slaves and northern antislavery activists persisted, and continued to argue against the legality of slavery.  Ultimately, these tensions led to the Civil War which created the conditions that enabled the end of slavery.  During the war, slaves fled across northern battle lines, demanding freedom, and some Union soldiers blocked the slavecatchers who pursued them.  Congress authorized military officials to “confiscate” the fugitives and set them free, a significant step in the campaign to end slavery.  After the war, Republican members of the Reconstruction Congress abolished slavery and enshrined the activists’ rights claims into law with the 13^th, 14^th and 15^th Amendments and legislation enforcing those amendments.

We are approaching the end of Black History month, in which we celebrate the contributions that African Americans have made throughout our history.  We should not forget fugitive slaves, who helped to bring about the end of slavery and the expansion of individual rights in this country.

Teaching About Slavery in Schools

A new report issued by the Southern Poverty Law Center shows that our nation’s schools are failing at teaching the history of slavery in the United States to our children.   According to the report, “Schools are not adequately teaching the history of American slavery.  Educators are not sufficiently prepared to teach it.  Textbooks do not have enough material about it.”  Too often, slavery is romanticized and its cruelty underplayed.  Students do not learn about the centrality of slavery to our nation’s economy and overall history.  As a result, only 8 percent of 12^th graders surveyed identified slavery as the cause of the Civil War.   

As a scholar of the Reconstruction Era with a daughter currently taking AP U.S. History, this issue is especially interesting to me.  Unfortunately, I am not at all surprised.  Over the course of our history, the history of slavery and the Reconstruction Era has been heavily contested and politicized.  During the early Twentieth Century, the dominant school of history, known as the Dunning school, framed Reconstruction as northern domination and exploitation of the south.  In popular culture, the movie “Gone with the Wind” reflected this view.  Starting in the 1960s, and inspired by the Civil Rights movement, historians such as Eric Foner and Michael Les Benedict shifted the dominant narrative and showed that Reconstruction was a time when the federal government established fundamental rights for freed slaves and all people in the United States.   However, the new report shows that this historical consensus is not being adequately taught to our children.

It is not surprising that the dispute over the history of this era in the academy spilled over to our country’s elementary and secondary schools.  Michael Kent Curtis details this history in this marvelous essay.  In the early and mid-Twentieth Century, school children in northern states learned about the “War Between the States” and those in southern states studied the “War of Northern Aggression.”  Recent debates over the statues of confederate war heroes revealed the extent to which southern states romanticized the “lost cause” of the southern rebels.  Teaching about the brutal reality of slavery undermined this narrative, as did the indisputable fact that the confederacy was founded to protect slavery (made clear in the Confederate Constitution).  In the north, downplaying slavery implicitly justified the federal government’s failure to intervene in the Jim Crow south, and ignoring racism and segregation in the north.

Unfortunately our nation’s schools have not made much progress in the teaching of the complex and difficult subject of slavery and race in our nation’s history.  The continued failure to adequately teach about slavery is both disappointing and consequential.  The history of slavery still profoundly affects our country.  We can see echoes of slavery in the vestiges of Jim Crow, the mass incarceration of African Americans, the effective use of racism as a political rallying cry.  Misunderstanding our history also affects our law, reflected in the Supreme Court’s race blind approach to the Equal Protection Clause and restriction of voting rights laws.  The history of slavery is profoundly important, and it always will be in our racially troubled nation.

Black Power in a Prison Library

Happy February 1 -- and the start of African American history month.  I'm going to recycle a post I've couple before regarding books about black power that were added to a prison library back in the early 1970s. 

We are hearing a great deal about the project of “the history of the Book” these days.  It aims to understand the role of books as vehicles of change: how do books contribute to changes in society, how do they help to create and sustain identity.   Sometimes historians look at books, to measure a culture.  What does Invisible Man say about the culture of the United States on the eve of Brown?  What do Booker T. Washington’s Up From Slavery and W.E.B. DuBois’ Souls of Black Folk say about Jim Crow?

At other times, historians draw inferences about people from their libraries.  This post talks about a list of about 120 books on the "black experience" that Judge Don Young ordered to be placed into the Marion, Ohio prison library back in 1972,  Taylor v. Perini, 413 F.Supp. 189, 215-19 (D.C. Ohio 1976).  What interests me about the list is its potential for mapping the sources of identity in the late 1960s and early 1970s.  What, then, are the books that the judge ordered added?

The Harlem renaissance and its leaders are well-represented: W.E.B. DuBois’ Souls of Black Folk; Richard Wright’s Native Son and Uncle Tom’s Children; James Weldon Johnson’s Autobiography of an Ex-Colored Man; Claude McKay’s Home to Harlem (1928) along with some other Renaissance-era literature, like Rudolph Fisher’s Conjure Man Dies: A Mystery Tale of Harlem (1932) and Walls of Jericho (1928)).  Situated between the renaissance and the 1960s is Invisible Man.

There is the early 1960s literature that captured the possibilities of the Civil Rights movement:  Maya Angelou’s I Know Why the Caged Bird Sings (1969); King’s Where Do We Go From Here, The Trumpet of Conscience, Stride Toward Freedom (1958), and Why We Can’t Wait; Alan Westin’s Freedom Now! The Civil-Rights Struggle in America (1964); and Howard Zinn’s SNCC:  The New Abolitionists (1968).  Or, in the case of Claude Brown, Manchild in the Promised Land that explained life under Jim Crow and conveyed something of what it was like to grow up in a place many thought of as the promised land, however much it might not have been.   I might also put John Killen’s And then We Heard Thunder (1964), James Baldwin’s Tell Me How Long the Train’s Been Gone (1968); John Alfred Williams’ The Man Who Cried I Am (1967) in that category–they are situated in a place between the optimism of the Civil Rights era and the later separatism.  They ask, with King, what now?

The Thirteenth Amendment and Freedom of Contract

 

When the Thirteenth Amendment abolished slavery and involuntary servitude, it altered the fundamental principles underlying our country’s labor and employment law.  Prior to the Thirteenth Amendment, the paradigm of labor and employment law was unfree labor.  The Thirteenth Amendment replaced that paradigm of unfree labor with one of freedom of contract. 

The most obvious example of unfree labor in the antebellum United States was the institution slavery.  Slaves were under the complete control of the “masters” who exploited their labor.  Under the laws of slave states, slaves were treated as property and denied the most basic of human rights.  But slaves were not the only unfree workers in antebellum America.  Thousands of immigrants came to the United States as indentured servants, bound to their employers for terms of years and subject to criminal sanctions if they left those employers.  Other workers served as apprentices who were also bound to their masters for a term of years.  Early industrial workers were often required to sign year-long contracts, bound to their employers regardless of the wages and conditions of work.  These workers were unable to leave exploitative employers and thus lacked any means to improve their wages and conditions of work.

During the antebellum era, many anti-slavery activists argued that slavery violated fundamental human rights.  Above all, slaves were denied the right to free contracts.  They could not enter into contracts with employers, were prohibited from engaging in most commercial transactions (especially real estate transactions), and were often denied the right to enter into marriage contracts.  Anti-slavery activists generally agreed that freed slaves should enjoy the right to contract.  For many, the right to contract was a central feature of their antislavery ideology.  The Thirteenth Amendment also extended the right to free contracts to northern workers by abolishing “involuntary servitude” as well as slavery. 

But what did the right to contract mean?  Did it mean a formal right to contract without government assistance?  Or did the right to contract include the right to government intervention to equalize bargaining power and protect against exploitation?

Some members of the Reconstruction Congress believed that the formal right to contract was sufficient absent government support.   Many Freedman’s Bureau officials agreed, allowing former slaves to enter into contracts with their former masters without sufficient oversight of exploitative contracts.

However, a majority of the Reconstruction Congress chose the latter approach.  Immediately after the Thirteenth Amendment became law, members of the Reconstruction Congress began to enact legislation enforcing the right to free contracts.  Their primary focus was employment contracts.  The 1866 Civil Rights Act, which prohibited race discrimination in contracts, was targeted at southern Black laws that attempted to impose involuntary servitude on newly freed slaves.  The 1867 Anti-Peonage Act prohibited workers from either voluntarily or involuntarily entering into contracts which amounted to indentured servitude.  The 1868 Eight Hours Act limited the hours of work of federal employees.  All of the laws enhanced the power of workers to enter into fair and free contracts.

The debate over the meaning of freedom of contract continued into the Twentieth Century.  More on that later.

 

Martin Luther King, Jr. and A Positive Right to Free Labor

This week, I had the honor and pleasure of speaking at the Vermont Law School Celebration of Martin Luther King, Jr.  Preparing my talk gave me the opportunity to think about the civil right’s movement’s advocacy for a positive right to free labor.  As I have discussed in earlier posts, a positive right to free labor is the right to work free of undue coercion, for a fair wage, without discrimination based on immutable characteristics.  In my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, I argue that the Reconstruction Congress established a positive right to free labor with the Thirteenth Amendment and statutes enforcing that amendment.  Today, I want to talk about the labor and civil rights movement’s efforts to promote a positive right to free labor in the Twentieth Century.

After Reconstruction, the southern United States descended into the Jim Crow system marked by racialized violence, the deprivation of civil and political rights, and the exploitation of black labor.  The leading rights movement in the early Twentieth Century was the labor movement.  Labor leaders asserted the right to organize, bargain collectively, and strike.  They also fought for protective legislation such as minimum wage and maximum hours laws.  Millions of workers engaged in strikes and demonstrations to advocate for these rights.  During the 1930s, the New Deal Congress responded, enacting the National Labor Relations Act, which recognized a federal right to organize; the Fair Labor Standards Act, which established a minimum wage and maximum hours; and the Social Security Act, which established an economic safety net that included unemployment insurance for workers. 

These New Deal measures enforced the two prongs for the positive right to free labor.  Belonging to a union empowered workers to bargain for fair wages and improved conditions of work.  To paraphrase Justice Robert Jackson in the case of Pollock v. Williams, belonging to a union gave workers “the power below to redress . . . a harsh overlordship or unwholesome conditions of work,” and combat coercive labor practices.  Jackson’s Pollock opinion interpreted the Reconstruction Era Anti-Peonage Act and articulated a judicially enforceable standard to for determining when employment practices create an unduly coercive involuntary servitude. The FLSA raised the wages of workers who did not belong to unions, also enforcing the second prong of a positive right to free labor. 

The third prong of a positive right to free labor, the right to work free of discrimination, was missing from New Deal measures.  Moreover, domestic and agricultural workers, many of whom were southern blacks, were omitted from New Deal protections. This glaring omission was due to President Franklin Roosevelt’s reliance on segregationist Dixiecrats for his New Deal program. However, at the urging of labor leader and civil rights activist A. Philip Randolph, Roosevelt created a Civil Rights Section in the Department of Justice.  As Risa Goluboff describes in her iconic book, The Lost Promise of Civil Rights, CRS lawyers sought to extend the New Deal promise of a positive right to free labor to black domestic and agricultural workers by enforcing the Anti-Peonage Act against exploitative employers. 

Meanwhile, the labor movement helped to sow the seeds for Dr. King’s civil rights movement. Yes, some unions discriminated on the basis of race, trying to exclude blacks from good jobs.  But others, such as the CIO in the 1930s, fought racism and sought to organize workers of color.    Moreover, Black union activists such as A. Philip Randolph played a leading role in the northern civil rights movement.   Randolph eventually became a mentor of Dr. King. Along with United Auto Workers President Walter Reuther, Randolph helped to organize the 1963 March for Jobs and Freedom, where King ascended to national prominence with his famous “I Have A Dream” speech.  Responding to King’s advocacy, Congress enacted the 1964 Civil Rights Act, which prohibits race and gender discrimination in employment, enforcing the third prong of a positive right to free labor. 

Dr. King is best known for his fight against segregation and for voting rights. Towards the end of his 1963 speech, King uttered the oft-quoted line, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This beautiful line expresses an aspiration towards which our country is still striving.  However, to focus too narrowly on this part of one of King’s speeches is to risk overlooking the truly radical nature of King’s advocacy for economic rights. Protections against race discrimination alone are not sufficient to redress the chronic poverty of people of color in our society, economic disparities which date back to slavery.

King well understood the link between racial discrimination and economic subordination.  In his 1963 speech, King pointed out that blacks were not only “badly crippled by the manacle of segregation and chains of discrimination” but also living “on a lonely island of poverty in the midst of a vast ocean of material prosperity.”  In the last years of his life, King turned his focus to the poverty in northern ghettos and supported the Poor People’s Movement. King ended his life in Memphis, where he marched with striking city sanitation workers. Speaking to those workers the night before he was assassinated, King declared, “in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed.” We should all heed King's call.

Brophy Named Frederick Douglas Book Prize Finalist

My friend and co-blogger Al Brophy got some good news this week.  He has been named a finalist for the Frederick Douglas Book Prize awarded by the Gilder Lehrman Institute of American History and the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at the Yale University MacMillan Center.  The prize goes to the best book on slavery, resistance, and/or abolition published in the preceding year.  

Many readers are familiar with Al's contribution, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War (Oxford University Press).  The other two finalists are Rashauna Johnson for Slavery’s Metropolis: Unfree Labor in New Orleans during the Age of Revolutions (Cambridge University Press); and Manisha Sinha for The Slave’s Cause: A History of Abolition (Yale University Press).   Johnson is a history professor at Dartmouth; Sinha is a history professor at UConn.

More details here.

Yale Keeps Calhoun College; Newest College Named for Feminist Lawyer

Yale President Peter Salovey has announced that the term "master" will no longer be used in Yale's residential colleges.  The new title is "head of college."

The name Calhoun College will remain unchanged.

The two newest residential colleges will be named for Pauli Murray and Benjamin Franklin.  Here's an excerpt from President Salovey's letter to the Yale community:

The northern-most college, sited closest to Science Hill, Pauli Murray College will honor a Yale alumna (’65 J.S.D., ’79 Hon. D.Div.) noted for her achievements in law and religion, and for her leadership in civil rights and the advancement of women. Pauli Murray enrolled at Hunter College in the 1920s, graduating in 1933 after deferring her studies following the Great Depression. Later, she began an unsuccessful campaign to enter the all-white University of North Carolina. Murray’s case received national publicity, and she became widely recognized as a civil rights activist.

A graduate of Howard Law School, Murray had an extraordinary legal career as a champion of racial and gender equity. United States Supreme Court Justice Thurgood Marshall cited her book, States’ Laws on Race and Color, for its influence on the lawyers fighting segregation laws. President John F. Kennedy appointed her to the Committee on Civil and Political Rights of the President’s Commission on the Status of Women.

Awarded a fellowship by the Ford Foundation, Murray pursued a doctorate in law at Yale in order to further her scholarly work on gender and racial justice. She co-authored Jane Crow and the Law: Sex Discrimination and Title VII, in which she drew parallels between gender-based discrimination and Jim Crow laws. In 1965, she received her J.S.D. from Yale Law School, the first African-American to do so. Her dissertation was entitled, Roots of the Racial Crisis: Prologue to Policy. Immediately thereafter, she served as counsel in White v. Crook, which successfully challenged discrimination on the basis of sex and race in jury selection. She was a cofounder, with thirty-one others, of the National Organization for Women.

Murray was a vice president of Benedict College in Columbia, South Carolina; she left to become a professor at Brandeis University, where she earned tenure and taught until 1973. She was the first person to teach African-American studies and women’s studies at Brandeis.

The final stage of Murray’s career continued a life marked by confronting challenges and breaking down barriers. At age 63, inspired by her connections with other women in the Episcopal Church, she left Brandeis and enrolled at the General Theological Seminary. She became the first African-American woman ordained as an Episcopal priest.

Pauli Murray represents the best of Yale: a preeminent intellectual inspired to lead and prepared to serve her community and her country.

Some New Haven Register coverage is here.

Sitting in the Shadow of Tamir Rice

For much of our time on the grand jury, the Tamir Rice case hung over us. There were three grand juries sitting simultaneously during the summer, so we began the summer assuming that there was at any rate a one in three chance that the County Prosecutor would bring the case to us. That the summer would pass without the case being brought seemed unimaginable. Officer Timothy Loehmann shot Tamir Rice on November 22, 2014. He died the next morning. Surely eight or nine months would be plenty of time to investigate and prepare the case.

Actually, two other cases involving allegations of excessive force used by police against African American victims also loomed for us this summer. The first, the trial of Officer Michael Brelo, accused of voluntary manslaughter in the shooting deaths of Timothy Russell and Malissa Williams in late 2012 was already ongoing when our term began. The second, the case of Tanisha Anderson, a 37-year old African American woman who suffered from bipolar disorder and who died in the hands of Cleveland police after her family had called for help because of her disoriented behavior, like the Rice case, had yet to emerge from the County Prosecutor’s office.

The deaths of Timothy Russell and Malissa Williams occurred on November 29, 2012 at the end of a police chase that began in downtown Cleveland and ended in a one-sided shoot-out at a school parking lot in East Cleveland. The chase began after a plain clothes officer, suspecting that Russell was looking to purchase drugs tried to pull him over for a turn signal violation. As he fled the scene, officers heard what they believed to be a gunshot and reported that they had been shot at from Russell’s car. In all likelihood they had heard a backfire from Russell’s 1979 Chevy Malibu, which a witness subsequently stated suffered from frequent backfires. No weapon was found in the car, and none of the pursuing officers saw a gun tossed from the car during the ensuing chase, which involved a total of 62 police cars. A crack pipe was found in the car, which along with Russell’s and Williams’ many prior encounters with the law may explain their flight. At the parking lot, prompted by the perception that Russell had a gun thirteen officers, including Michael Brelo, let loose a volley of 137 gunshots into the car. After all other officers had stopped firing, Brelo jumped onto the hood of Russell’s car and fired an additional fifteen shots at Russell and Williams. The charges against Brelo for voluntary manslaughter and felonious assault related to these last fifteen shots, on the theory that at the point when the remaining officers had stopped shooting it was no longer reasonable for Brelo to continue. Brelo’s attorneys moved to have the case tried by a judge in order to avoid a jury trial. The case was assigned to Judge John O’Donnell.

City leaders were gripped by fear that an acquittal would lead to mass rioting. As a verdict approached, local schools closed their after school programs, and local employers readied themselves to implement emergency plans. We were informed that Judge O’Donnell would give the Court’s administrative judge thirty minutes advanced notice that the verdict was about to be announced (but not an indication of what the verdict would be). We, and presumably other people working at the Justice Center, would then be evacuated. The near hysteria seemed baseless. I had not been concerned about getting home from work if we were sitting on the day that the verdict was announced, and none of the other grand jurors seemed concerned.

In the end, Judge O’Donnell obviated the need for significant evacuation planning by announcing the verdict early on a Saturday morning when the Justice Center was quiet and Cleveland’s downtown streets were more or less empty. He acquitted on all counts. While he acknowledged that several of Brelo’s last fifteen shots could have been fatal, he concluded that given all the prior shots (including those from Brelo’s gun) there was no way to conclude that any of Brelo’s last fifteen shots had killed either Russell or Williams. The Prosecutor had not argued the lesser included offense of attempted manslaughter, so Judge O’Donnell did not have to consider whether or not Brelo could have been guilty of attempt. Perhaps most troubling about the opinion was Judge O’Donnell’s conclusion that Brelo had a reasonable fear of harm at the moment when he abandoned the cover of his zone car and exposed himself first by jumping on the trunk of his car and then by jumping on the hood of Russell’s car.

Cleveland did not burn. The feared riots did not occur. On the whole the protests were peaceful, with a very few instances of protestor behavior leading to criminal charges. Demonstrators that Saturday night were met, however, by police in tight military formation who drove the demonstrators into confined spaces and then, in at least one instance onto a bus pulled up in an alley for a mass arrest. Clearly, the Cleveland Police Department was going to keep the bars and restaurants of East 4^th Street and West 6^th Street, open and operating, and keep the patrons protected from unpleasant chants and protest.

 

            Graffitied Commentary at the Justice Center following the Brelo Decision

The Grand Jury Now and Then (1922): Part 2

My knowledge of the grand jury, the Prosecutor’s office, and criminal justice more broadly in Cuyahoga County in the early 1920s comes primarily from Criminal Justice in Cleveland, a study sponsored by the Cleveland Foundation and published in 1922.  The study, which served as a model for several similar subsequent studies, including the Wickersham Commission Report in 1931, brought together a group of experts under the direction of Harvard Law School’s Dean Roscoe Pound and Professor Felix Frankfurter.  The rather massive tome bears many of the earmarks of early twentieth-century Progressivism.  It has a decidedly reformist goal, to analyze and improve criminal justice from policing to parole with all steps in between.  It begins from the conclusion that there had been a “breakdown of criminal machinery” in Cleveland and the county, and that it must systematically seek out the sources of and solutions to that breakdown.  It reflects many of the prejudices and fixations of the Progressive Movement.  As Frankfurter notes in his introduction, the study was to be “scientific” and empirical grounded in a massive collection (but not, incidentally, original generation) of statistics regarding every aspect of criminal justice.  The study’s organizers assigned the task of interpreting these statistics to disinterested experts drawn from outside of Cleveland to guarantee impartiality.  Further, the study frames criminal justice as an integrated system to be studied as a whole.

The Cleveland Foundation was itself a product of the Progressive era, an attempt by the “leading men” of Cleveland to systematize charitable and other communal efforts.  Its director at the time of the study was Raymond Moley who would later organize FDR’s brain trust before publicly repudiating the New Deal and moving to the political far right.  The reports that make up the study reveal Progressive concerns about disorder in the modern industrial era, political corruption under big city machine politics, and the displacement of men of the better sort in government and the professions.  Its assessment of the Cuyahoga County Prosecutor’s office, for instance, finds the office seriously lacking.  Partly, it attributes the office’s failings to inadequate resources, but it also decries the impact of ethnic block voting on county administration.  Essentially, it complains that there are too many poorly skilled Irishmen, Italians, Jews, and Slavs in the office, who treat their jobs as sinecures, rather than positions of public trust.  The study similarly criticizes the staffing of the county and municipal courts.

Cuyahoga County saw its first female assistant prosecutor before any women sat on its grand juries.  In 1919, Florence Allen became an assistant county prosecutor.  Her time in the office was brief, because the following year she was elected to the county’s Court of Common Pleas, becoming the first woman in U.S. history to be elected to a judicial office.  Allen was a woman of many firsts.  In 1922 she was elected to the Ohio Supreme Court and became the first female state supreme court justice.  With her appointment to the United States Court of Appeals for the Sixth Circuit in 1934, she became the first female Article III judge.  Sometime in the mid-1920s the county hired its first Black assistant prosecutor, Selmo Glenn.  By 1930, Glenn had left the prosecutor’s office for private practice, but in that year Norman S. Minor became an assistant prosecutor.  Minor, for whom Cleveland’s African American bar association is named, would become one of Cleveland’s most revered trial lawyers.

Because jurors were drawn from the rolls of registered voters, no women served on Ohio juries before Ohio women won the vote in 1920.  In 1921, Judge Allen selected Cora Cross as the first female foreperson of a grand jury.  Three additional women sat on that grand jury.

African Americans did not face the same barrier to participation on grand juries as women did prior to 1920, notwithstanding a provision of the Ohio constitution that limited suffrage to white males, a provision that Ohio voters declined to eliminate as late as 1912.  African Americans were on Ohio’s voter rolls and served on its grand juries.  Nevertheless, there is reason to believe that African Americans were not frequent participants in Cuyahoga County grand juries.  The study does not indicate the percentage of grand jurors who were white or African American, presumably because the county kept no such statistics.  Nonetheless, from what it does tell us about the selection there is reason to believe that African Americans were underrepresented on the grand jury.  First, while it offers a spot review rather than a systematic review of juror selection (apparently for grand and petit juries aggregated) by ward and jurisdiction, the review does suggest that the disqualification rate was higher than average in Ward 11, one of the emerging African American neighborhoods.  Additionally, the presiding judge rather than the regular juror selection process selected a substantial number of the grand jurors. The County would call a reasonably small number of potential jurors and seat the grand jury from that pool.  Once the pool ran out, or once seated grand jurors left during the term, which appears to have happened often, the judge would simply fill the gaps with his acquaintances.  The judge would also pick someone to serve as foreman, a procedure that still operates today.  Given the increasing segregation of Cleveland during the 1920s, and the demographics of the County’s court system, it seems likely that most judge-selected grand jurors were white.

The study reveals that there were important differences in how the grand jury functioned in the 1920s from how it works today.  I will turn to those differences and why the study recommended that most of the grand jury’s work be eliminated, soon. 

I would be remiss not to mention that today is the one-year anniversary of the shooting of Tamir Rice.  Rice, a twelve-year old African-American child, had been seen playing with a realistic looking toy gun outside of the Cudell Recreation Center on Cleveland’s West Side.  The person who reported the possibility of an armed man to the police, also told the 911 dispatcher that he thought the person might be a child and that the gun might be a toy.  That dispatcher did not relay those two important pieces of information.  Within two seconds of the police zone car arriving on the scene, Officer Timothy Loehmann exited the car and fired two shots at Tamir.  One of them fatally wounded him.  The Rice case hung over our grand jury for most of the summer, as we sat in expectation that it might be presented to us.  It is now before a grand jury.  While I have more that I want to share about the differences between the modern grand jury and its 1920s ancestor, I will turn next to Tamir Rice.