Balkinization: Penningroth’s Achievement

Penningroth’s Achievement

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Steve Griffin

In Before the Movement: The Hidden History of Black Civil Rights, Dylan Penningroth employs never-before used court records to reveal a veritable iceberg of forgotten history concerning the use of the law, especially private law, by African Americans. In order to do this, Penningroth and his research assistants coded 14,016 civil cases and 2,393 criminal cases in local courts in Illinois, Virginia, Mississippi, New Jersey, North Carolina, and the District of Columbia. Because race is not often noted in these court records, the coding was an arduous process of searching for identities in Census records and on Ancestry.com. More than 1500 of these court records involved Blacks. The result of the addition of this history to the standard understanding of the birth of Black “civil rights” is often startling and revelatory. It is a deeply humane achievement and one of the best works of legal history I have ever read.

Penningroth’s journey through these court records leads him to basic elements of American law – contracts, property, marriage and divorce, and the law of corporations – the last relevant to the associations Black people continuously formed. Furthermore, his analysis starts not with, say, Reconstruction and the winning of freedom from slavery, but deep in the midst of slavery in the early nineteenth century. Penningroth contends that “White people recognized Black rights because life’s ordinary business could not go on if whites could not make contracts and convey property to Black people.” (xxii)

To be sure, this is a general remark. If I understand correctly, Penningroth does not argue that Blacks had rights under nineteenth-century law if they were slaves. They did not have “civil rights.” (16) He does argue that slaves had “legal lives” because they possessed “privileges” that could not be under the sole control of their particular owner. Their owner could not fully control these privileges because they related in a strong sense to white people’s legal rights. (4) That is, white people in general. Thus, slaves could own property and make contracts.

This legal reality was later denied or was unknown to those entrepreneurs, including Abraham Lincoln and Senator Jacob Howard, who worked to create a new world of “civil rights” granted by fundamental amendments to the Constitution. These entrepreneurs popularized the idea that the law was not present in the relationship between slaves and their masters. Penningroth cautions that he is not trying to replace the conventional account of the birth of civil rights. As he says, the book “is not a lament for the path not taken; it is not about the lost promise of private-law civil rights.” Instead, he wants to situate the quest for what we call civil rights today, rights of nondiscrimination and antisubordination, “in the soil where it first grew.” (349)

The implications of his account for standard histories of Reconstruction by legal scholars are nonetheless of interest. One implication not emphasized by Penningroth is that the new world of civil rights for all made real by the Reconstruction amendments was much more of a new and invented legal world than we have been led to believe by several decades worth of research by “optimistic” scholars following in the footsteps of those nineteenth-century entrepreneurs. Another is that there is a closer relationship between civil rights understood as rights of nondiscrimination and the sort of rights recognized in the Civil Rights Act of 1866, the rights to participate effectively in the marketplace, than legal scholars have often assumed. This makes the circumstances of the Slaughter-House Cases, for example, more comprehensible. Yet another is to reinforce the pervasive nineteenth-century distinction among civil, political, and social rights, currently a trouble spot for sophisticated versions of originalism.

The overall import of Penningroth’s history can be conveyed by an example that comes at the end of the book. He refers to the treatment of Fannie Lou Hamer and the other brave delegates of the Mississippi Freedom Democratic Party who wanted to represent their state at the 1964 Democratic National Convention. As this episode was summarized by the Student Nonviolent Coordinating Committee (SNCC) in 1965, “Mrs. Hamer, Mrs. Devine and Mrs. Gray do not know much about legal things.’” Penningroth notes that this confirmed SNCC’s “belief that they were faithfully representing the wishes of the South’s poor Black ‘folk.’” But wait.

Penningroth’s deeply researched history and critique rolls forward: “Much as white Union officers in 1865 had thought that they needed to teach newly freed slaves about property rights, much as NAACP lawyers in 1931 had thought that the ‘black masses were still ignorant of their rights,’ much as white southern lawyers had presented their clients as ‘ignorant negroes,’ SNCC made the same mistake. He continues: “But, of course, Black people had known about ‘legal things’ for a long time and they were still highly active in locate courts during the 1950s and 1960s. Thus activists bequeathed to historians three deeply flawed assumptions: first, that common-law rights under state law, and the local courts that judged those rights, had been a closed book to Black people before the modern freedom struggle; second, that those rights were not civil rights; and third, that they were essentially irrelevant compared with protection from discrimination or subordination as defined by Congress and the Supreme Court, must less compared to the broader human freedoms that activists now sought.” (339-40) An altogether eloquent statement of what the book is all about.

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