The Flattening of Black Legal Lives
A history of legal erasure with Professor Dylan C. Penningroth
Ahead of MLK Day, I thought it was an appropriate time to explore the lesser-known legal backdrop to the Civil Rights Movement, and how “Black legal lives,” to use Professor Dylan C. Penningroth’s words, remain scrubbed both from the historical record and law school curricula.
Penningroth is a professor of law and history at the University of California, Berkeley who specializes in African American history and legal history. A MacArthur “Genius” Fellow in 2012, Professor Penningroth’s articles have appeared in the University of Pennsylvania Law Review, The Journal of American History, and The American Historical Review. Professor Penningroth is the author of The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South, and most recently, Before the Movement: The Hidden History of Civil Rights, the subject of our conversation today.
A condensed transcript edited for clarity is below. You can also listen to the audio of our conversation, which includes further discussion of how the Civil War transformed Black elder care, the discriminatory practices of big firms that hired many future policymakers, the benefits of incorporating race into law school curricula, and more:
Ben: Professor Penningroth, thank you so much for being here.
DCP: Thank you for having me.
Ben: The pleasure is all mine. I’m excited to dig into your book, recasting some of the common narratives of the Civil Rights Movement.
To ground our conversation earlier in history, can you talk about your personal connection to the story?
DCP: Sure. My personal connection meant a lot to me in writing this book.
Like many people, I grew up going to family reunions and cookouts, and I heard stories over the years about my great-great-great uncle, a man named Jackson Holcomb, who was enslaved in Cumberland County, Virginia. Toward the end of the Civil War, he had a boat and found himself confronted with a pack of Confederate soldiers who wanted a ride across the Appomattox River. He gave them a ride, and when they got to the other side, they paid him.
I remember hearing the story and thinking that is a strange thing to happen. It seemed as though there were these heavily armed men who could have just taken the boat from him, and nevertheless, they seemed to be acting as if he had certain kinds of rights.
That got me thinking about what Black people's lives were like in a world where enslaved people had no rights, but they nevertheless had what many people recognized as privileges.
Ben: Talking more about that distinction between privileges and rights, what differentiated the two?
DCP: So before the Civil War, the word “privileges” had a real legal meaning. It's even in the Constitution: there's a Privileges and Immunities Clause (Article IV).
For enslaved people, and many other kinds of people, privileges were prerogatives that they couldn't defend in a court of law. You couldn't go before a judge and have a judge enforce them as rights, but sometimes the community recognized them as being valid in some way, and that's what was happening with my great-great-great uncle.
What happened in 1866 is that Congress for the first time passed a national law that defined and regulated civil rights. Congress came along and imposed this kind of baseline guarantee that the states couldn’t discriminate based on race when it came to basic civil rights: the right to property, the right to contract, and the right to go to court to sue and be sued.
So there was a big turning point. But one of the fascinating things about this story is that of those three bundles of rights — the only one that really represented a radical break with the past — was that now four million formerly enslaved people could go to court and sue and be sued. For the other two things, the right to property and contract, all that happened is that prerogatives became rights.
Ben: You say that the “four decades after emancipation were the formative era of modern contract law, and leading law professors, judges, and legal commentators cited Black people’s cases as precedents across a wide range of areas.”
And yet, they almost never mentioned that Black people were parties to those suits, “silently passing them into legal doctrine.” Can you explain that juxtaposition a little bit, please?
DCP: A great question.
What I've found is that even before the Civil War, you had a lot of state and federal courts hearing and deciding cases brought by Black people. Sometimes they mentioned that the people involved were Black and sometimes they didn’t.
It wasn’t necessarily a conspiracy to strip race out of the case law. It was more of a catch-as-catch-can type thing where law professors, judges, and lawyers put race in and took race out to get things done that they thought needed to get done.
For example, there's this case called Ricketts v. Pennsylvania Railroad, which came down in the 1940s. This very famous judge, Jerome Frank, used it to explain a really important concept that law students learn even today, which is about the objective theory and contract law versus the will theory.
No need to go into the details, but what's not printed in the casebook is the fact that the man at the center of the case was a Black railroad worker. Anyone who read the case at the time probably would've understood just from facts embedded in the text of the opinion that this guy was Black, but Judge Jerome Frank stripped race out of the opinion, probably because he wanted his concurrence to be interpreted as widely as possible and go into the law school teaching curriculum. And that's exactly what happened. It's still in casebooks across America today, but students don't know Ricketts was Black.
Ben: Another interesting point from your book details how in the early 1900s, white lawyers pushed Black lawyers out of the industry. And yet, you add, “The number of black people who did law on the side, after hours, may not have fallen at all. The white judge who would not tolerate a black lawyer in his courtroom had no problem ‘discussing the most complicated cases’ with the ‘negro barber, who shaved him.’”
Can you explain more of what you mean, besides pointing out that you should always trust your barber?
DCP: Ha, that's right.
Ben: They may not be qualified to give legal advice, but if they do, you should follow it.
DCP: Yeah. I mean, in the wake of the Civil War, there was actually a surprisingly significant number of Black lawyers who hung out their shingles and started competing for business. I think the fact that white lawyers pushed them out in the 1890s is testimony not just to their virulent racism, which certainly was the case for many, if not most of them, but also to the fact that there was a market for Black lawyers’ services — primarily from Black clients.
In other words, there were an awful lot of African Americans, especially in the South, who had legal needs. They needed lawyers for everyday sort of stuff: to have a contract looked over, a deed written, etc. So in the 1890s, Black lawyers still practiced in local areas. In fact, at Howard Law School, founded in the wake of the Civil War, most of what the professors taught were bread-and-butter rights covering common issues like divorce.
This sort of education shaped prominent Black lawyers, who began emerging in the 1930s and 1940s. People like Thurgood Marshall, who went to Howard Law, were conditioned to think about civil rights as being both this new thing, associated with the freedom struggle, and also this idea that it had been for going on a hundred years. When later asked about his strategy in Brown v. Board of Education, Thurgood Marshall made it clear that he thought not just in the language of anti-discrimination, but in the language of everyday use. He explained, “We had to try this case just like any other case with damages”; just as “if your car ran over me, you’d have to pay up.”
Ben: His perfunctory explanation of how he won one of the most momentous legal cases in U.S. history makes me curious about his wedding vows. They must’ve been really to the point.
DCP: Ha! He was a very practically-minded guy.
Ben: Evidently, there’s a lot more to Black legal lives than just the federally protected civil rights we associate with them today. But as you synthesize, during and after the Civil Rights Movement, “contract and property law came to seem ‘white’... And civil rights became ‘black.’” How did that happen?
DCP: One explanation is that we began to see a version of what we talked about a little earlier. Law professors who had been teaching cases involving Black people — who had been using old hypotheticals involving slaves — took those cases out of curricula, probably because they were embarrassed by the racist language.
But, unknowingly, they left in many cases involving Black people, which had been in the case books for many years with no mention of the people's race. So, that's what I mean when I say that contract law and property law came to seem as if they were white. They're not actually white, but they got taught that way.
And then when new law professors and law students, including my mother who went to Penn Law School for a year and a half in 1972, came in to take these courses, they were implicitly led to believe that Black people only existed and mattered in other sections of the law or in cases that were explicitly about Black people.
Ben: What’s the impact of that erasure, both in legal terms and more broadly speaking? One really poignant part of your book describes how we’ve flattened Black legal lives, including the lives of your family members.
DCP: You’re priming me to think about two important ways that the covering up, for lack of a better word, of this history —
Ben: You could say the skipping of the history.
DCP: Ha, I see where you’re going here.
— that the skipping of this history still unfolds.
One is in law school. An awful lot of students are really hungry for more discussion of race — and they're not getting it. I think law professors themselves are also eager to incorporate race into their teaching, but they don't see a way to do that because they have a set number of topics that they have to get through, and each one has a set number of minutes. It's a fast-paced curriculum.
But what I'm saying is that some cases on race are already there. You just have to teach them differently.
The other one you mentioned is typified by my great-great uncle and aunt, Thomas Holcomb and Annie Holcomb. They lived in New Jersey for most of their lives, and they wanted to retire back to Virginia, where my great-great-great uncle had lived. But they had a falling out about some land that they owned in common with some other relatives who still lived back in Virginia. There were hurt feelings. They ended up not moving back to Virginia when they died, though they were buried there.
And those sorts of stories, I think, have gotten washed out of the way that we talk about African American history in general. We tend to talk about Black history as a freedom struggle, right? A long unceasing struggle, with African Americans struggling to overcome the legacy of slavery and coming together to fight against white supremacy and its oppressions.
But that narrative doesn't do justice to the reality of Black people's lives, which are full of interpersonal tensions, disagreements, pettiness, joking, and loving — things that don't fit into a freedom struggle. We shouldn’t stop talking about the freedom struggle, but we also need to talk about Black people's relations with each other, too.
Ben: You conclude that “there is more at stake in these questions than how we tell the story of black legal lives. The challenge is to talk about black people's lives in full” — which I think your lovely book does.
Professor Penningroth, this has been such a pleasure. Thank you so much for your scholarship and for your time today.
DCP: Thank you so much for having me on.