A ‘Wary Faith’ in the Courts
Reviewed: Before the Movement: The Hidden History of Black Civil Rights by Dylan C. Penningroth Liveright, 465 pp., $35.00
During its heyday in the 1960s the civil rights movement caused deep divisions in American society. More recently it has been absorbed into a whiggish narrative of progress in which a system resting on white supremacy was superseded by one that, while hardly perfect, is considerably closer to the ideal of equal justice under law. Participants in what is sometimes called the “freedom struggle” included courageous activists who put their lives on the line in the Jim Crow South and a cadre of civil rights attorneys, exemplified by Charles Hamilton Houston and Thurgood Marshall of the NAACP, who in a series of landmark cases persuaded the federal courts that the legal system institutionalized around 1900 in the southern states violated the constitutional rights of Black Americans.
Before this triumph of the rule of law, according to what Dylan Penningroth calls the “master narrative of civil rights,” Black southerners had little faith in the legal system and did their best to avoid contact with it. This makes intuitive sense. Why would African Americans believe they could achieve fair results in courts dedicated to upholding white supremacy? Better to steer clear of southern courtrooms entirely.
Penningroth, who teaches history and law at the University of California, Berkeley, believes that current scholars’ understanding of the emergence of the civil rights movement rests on a series of misconceptions about Black Americans’ “legal lives.” He sets out to demolish them. Even during the days of slavery, he insists, they knew a lot more about legal principles than one might imagine. From experience and observation, they developed what Penningroth calls “goat sense” (following the coinage of the Black tenant farmer Ned Cobb, the protagonist of the 1974 best seller All God’s Dangers —a working knowledge of legal rules and concepts.
Far from avoiding the courts, they utilized all the legal tools at their disposal. From the late nineteenth century to the era of the civil rights movement, he writes, “Black people poured out their family stories” in legal cases, exhibiting a “wary faith” that the courts would uphold their claims to what he calls the mundane “rights of everyday use”—rights that derived from ownership of property, the signing of contracts, the “associational privileges” of membership in Black churches, and legal claims, such as inheritance, acquired through marriage. Rather than heroic freedom fighters courageously confronting repression or victims avoiding the courts at all costs, Black Americans emerge in this telling as ordinary folk using the law to help make the best of difficult circumstances.
Penningroth’s conclusions emerge from an epic research agenda in which he and his students examined some 14,000 legal cases, identifying 1,500 with Black litigants, most but not all in the South. These were civil litigations, matters of private law whose documentary records long lay unexamined in local courthouses. As has lately become common among historians, Penningroth intersperses his account with his own family’s experiences from the time of slavery to the twentieth century’s Great Migration as a point of departure and reference.
Before the Movement begins with a revealing incident involving Penningroth’s enslaved ancestor Jackson Holcomb, who owned a small boat in Virginia. In the final days of the Civil War, Holcomb successfully demanded payment to ferry Confederate soldiers fleeing the Union army across the Appomattox River. Legally speaking, the boat and everything else Holcomb claimed as property belonged to his enslaver. But the desperate Confederates did not challenge his ownership of a boat or his right to charge a fee for transporting individuals across the river. Whatever the letter of the law, custom throughout the slave South accepted that slaves could acquire property of their own.
Penningroth devotes particular attention to the widespread practice of allowing slaves to till small garden plots on which they grew crops for sale at local markets. He acknowledges that for slaves, cultivating “garden patches” in what was supposed to be their free time was a form of “superexploitation”—the owner shifting to the laborers themselves part of the responsibility for providing food for enslaved laborers and their families. Nevertheless he views such plots as the basis of an “informal economy” that allowed numerous slaves to earn income that would finance the acquisition of land after the Civil War.
Over time, privileges won by slaves morphed into customs, and customs into rights. While slavery existed, property ownership by slaves was not enforceable in court. That would change in 1871, in the midst of Reconstruction, when Congress established the Southern Claims Commission, charged with compensating former southern Unionists, slaves included, for property appropriated by the army during the war.
Something similar had transpired a few years earlier with regard to Black families. Slave marriages had no standing in law, but enslaved men and women married anyway and local communities, white and Black, recognized the existence of their unions, though this did not prevent their disruption by sale. Although Penningroth does not draw attention to it, in March 1865 Abraham Lincoln signed a law freeing the immediate families of Black Union soldiers. Slaves’ family ties suddenly acquired legal standing in the eyes of the federal government. One consequence was that the widows of Black veterans became entitled to federal pensions. As for Jackson Holcomb, in the years after his encounter with fleeing Confederates, he married, purchased land, and paid his property taxes. He appreciated the importance of adhering to legal rules.
In order to make sense of the vast archive he and his students have created, Penningroth divides his history into four parts—slavery, Reconstruction, Jim Crow, and the “movement era.” For each he delineates how Black citizens used the law and how their efforts helped to produce an evolution in the concept of civil rights itself. Many readers may find the first chapter, “The Privileges of Slavery,” surprising. Penningroth freely grants the incongruity of the idea. But he shows that throughout the South, slaves were able to wring concessions from their owners and to create customary entitlements that over time evolved into rights recognized by “community opinion.”
“Slaves owned property in every legal sense of the word,” he writes, “except that no court would protect their ownership as a right.” Readers may well consider this a significant exception, but Penningroth makes a strong case that their experience with property ownership and trade equipped slaves to become “key players” in the South’s “market economy,” and that as a result many were prepared for participation in a free labor system. Emancipation, he writes, was “a much less sharp break” in the lives of the enslaved than historians have assumed. (Penningroth has a penchant for ex cathedra pronouncements like this that need more supporting evidence than he provides, and he sometimes fails to make clear which historians he is taking to task.)
Penningroth’s discussion of slave property rights brings to mind the work of perhaps the post–World War II generation’s leading scholar of slavery, Eugene D. Genovese. Current trends in scholarship about the Old South have somewhat diminished his posthumous reputation. The stress now is on the institution’s physical brutality and its central role in the expansion of modern capitalism, calling into question Genovese’s portrait of southern slavery as a paternalistic, precapitalist institution whose functioning rested on mutual concessions between owner and slave.
Genovese was interested in how ruling classes acquire legitimacy and exercise authority. Toward the beginning of his classic study Roll, Jordan, Roll (1974), he included a brief section entitled “The Hegemonic Function of the Law,” delineating how it serves the interests of those holding power in repressive regimes to ensure that the legal system operates with a modicum of fairness, even if it means that persons like them do not always win in court. The belief that the courts actually dispense justice can help to obscure vast imbalances of power. Like Penningroth, Genovese wrote of rights based on custom enjoyed by slaves.
In the late nineteenth century, thanks to the laws and constitutional amendments enacted during Reconstruction, Black men for the first time were serving as justices of the peace and holding other judicial offices, mostly in the South. This helps to explain why more and more Black southerners were inspired to go to court, a pattern that continued well after the advent of Jim Crow. But, Penningroth was surprised to discover, very few of the thousands of cases he examined identified the race of the individuals involved. In cases revolving around property rights, he says, it made no difference if parties were Black or white—race “had no legal meaning.”
Despite the pervasive hold of white supremacy, moreover, not all white people shared the same interests. In rural areas of the South, for example, some white farmers strongly opposed the presence in their neighborhoods of Black landowners, while others welcomed their availability as temporary laborers at harvest time. Because of census records and other digitized sources, Penningroth was able to identify the race of many individuals who appeared in court documents, yet the legal records suggest that even in the days of Jim Crow civil law did not always operate along racial lines.
In his sections dealing with Reconstruction and the Jim Crow era, Penningroth emphasizes that the post–Civil War emergence of the Black family as the central institution in Black communities forced African Americans to familiarize themselves with the nuances of family law. Black litigants engaged in “waves of lawsuits” about divorce, the sale of property, financial support of the elderly, child custody, and other family matters. These intra-family conflicts, he writes, challenge the romantic view of the Black family as a harmonious institution guided by a communal ethos, which he claims too many historians have embraced.
He also points out that, judging from lawsuits, Black churches were often riven by dissension. For example, Penningroth relates the experience of the Mount Helm Baptist Church in Mississippi, “engulfed in controversy” in 1899 when a group of parishioners sued to bar the minister from preaching because he had been performing faith healing services in the sanctuary. The state supreme court ruled in their favor. Black litigants were sometimes more willing to trust the judgment of local courts than the decisions of other family and church members.
In her memoirs, published in 1898, Elizabeth Cady Stanton recalled that Reconstruction
involved the reconsideration of the principles of our Government and the natural rights of man. The nation’s heart was thrilled by prolonged debates in Congress and State legislatures, in the pulpits and public journals, and at every fireside on these vital questions.
Penningroth examines how the nationwide debate she describes reconfigured Americans’ grasp of the concept of civil rights. Before the war, rights were divided into three categories—civil, political, and social—and enjoyment of them varied from state to state. Civil rights encompassed those entitlements necessary for participation in a free-labor economy: signing contracts; testifying in court; owning, buying, and selling property; and suing and being sued. Even in the South, many free Black people enjoyed civil rights, but not the other two. They could own property and testify in court (although often only in cases involving other Black people), but throughout the country voting and “social” rights such as equal access to public transportation, hotels, restaurants, and places of amusement were generally restricted to white men.
In 1866, over the veto of President Andrew Johnson, Congress passed the first national civil rights act, which declared all persons born in the United States citizens by birthright, with the exception of Native Americans (considered members of their tribal sovereignties). The measure severed the connection between citizenship and race, overturning the Dred Scott decision of 1857—in which the Supreme Court under Chief Justice Roger B. Taney limited citizenship to white Americans—and for the first time delineated the rights the former slaves were to enjoy along with white citizens, essentially civil rights (the rights of contract) but not political or social rights.
As Reconstruction progressed, African Americans and their white allies, drawing on arguments popularized by the pre-war antislavery movement, demanded full legal equality for the emancipated slaves. Increasingly, various kinds of rights merged together. Many Republicans came to include the right to vote as part of an expanded definition of civil rights (except for women). In the Fifteenth Amendment they wrote Black male suffrage into the constitution. In 1875, shortly before the end of Reconstruction, Congress enacted the second civil rights act, which made it a crime to deny any citizen access to transportation, public accommodations, or a variety of other venues. “Civil” rights had now expanded to include what once had been considered discrete political and social prerogatives.
In 1883 the Supreme Court declared the 1875 law unconstitutional, adopting the view that the Fourteenth Amendment’s guarantee of equal protection of the law regardless of race applied only to “state action”—that is, racial discrimination by public officials, not private businesses. But, Penningroth points out, the process of redefinition continued well into the twentieth century, as civil rights became more and more linked to race. By the time Congress and the Warren Court had dismantled legal Jim Crow, the right of racial minorities to be free of invidious discrimination had overshadowed the definition of civil rights as the basic entitlements of all free persons. This transformation, he speculates, made it more difficult to persuade white Americans that the struggle for civil rights was relevant to their own daily lives.
Despite losing rights of many kinds, Black southerners in the Jim Crow era enjoyed some remarkable achievements. By 1910, Penningroth relates, more than half a million Black families had managed to acquire land, amounting to more than 15 million acres. Yet as time went on, the way they dealt with landownership generated serious problems. Frequently, property was owned jointly by members of extended families. Any decision to sell required the agreement of all co-owners, causing deep family divisions. When individual co-owners died without a will, their portion of the land was divided into small plots among surviving children and grandchildren.
Because of the Great Migration, the disposition of landed property in the South frequently involved relatives living in the North, with whom southern family members had little or no contact. Land became the subject of intra-family lawsuits in which litigants claimed to have been cheated out of their share of what came to be known as “heir property,” and elderly family members sued relatives who reneged on promises of monetary payments to help them survive old age. As landownership fragmented, generations of Black farmers had no choice but to master the legal complexities of such transactions.
The Jim Crow era also witnessed a proliferation of Black institutions, including churches, societies for mutual relief, fraternal orders, and schools and colleges. African Americans had to learn the nuances of laws regulating the powers of corporations and associations. As with family and church disputes, they used what they learned to file lawsuits.
Finally, Penningroth turns to the “movement era.” Many readers may consider his judgments in this section unduly harsh. He agrees with most current scholars that rather than being brought to the South by NAACP lawyers and other outsiders, the civil rights movement drew on a long history of local legal activism. In keeping with his emphasis on the vitality of Black traditions, he reproaches the civil rights workers from the Student Nonviolent Coordinating Committee who courageously entered the South to help secure the constitutional rights of Black citizens for misunderstanding the local culture. Offering little direct evidence of their views, he writes that the civil rights volunteers assumed that local people had little experience with legal processes and approached the court system from behind a veil of “legal ignorance.” These outsiders were under the mistaken impression, he claims, that Black southerners were “ignorant of their rights” and in need of intervention to galvanize a movement for change. Both Black and white activists, he suggests, adopted a condescending attitude toward the people they were seeking to organize; some went so far as to attribute southern Black poverty, in part, to a “plantation mentality” inherited from slavery.
Penningroth’s section on this era includes a valuable discussion of the evolving status of Black attorneys. Drawing on Kenneth Mack’s influential book Representing the Race (2012), he notes that before the mid-twentieth century most Black attorneys, like most white ones, worked as general interest practitioners who spent the majority of their time representing clients of modest means in minor local cases. At the turn of the twentieth century, African Americans filed at least 17 percent of the civil suits he examined, probably more.
Such litigation did not directly challenge white supremacy—nearly all these lawsuits pitted Black people against one another. But even at the height of Jim Crow, Black travelers were able to win lawsuits for damages against railroads that had subjected them to demeaning treatment, and white judges ordered whites to pay their debts to Black creditors. Where the white South drew the line was at Black lawyers’ practicing cases of legal significance. Nearly all the lawyers in these thousands of cases appear to have been white. One reason cited by Penningroth was the creation by prominent white attorneys of lily-white bar associations, racially exclusionary gateways to the profession.
Whatever the outcomes of individual lawsuits, the cases handled by Black attorneys rarely produced fees or damages sufficient to sustain a legal career. This was especially true of cases litigating civil rights, which did not produce much income for the lawyers. With the movement’s legal successes this changed. For the first time, Black attorneys could make a living as civil rights lawyers, litigating cases arising from new federal statutes and regulations that prohibited racial discrimination.
But this development brought significant pressure to bear on Black attorneys to represent the entire “race,” not simply individual clients or their own self-interest. Complaints arose that lawyers were too aloof from Black communities, or charged fees that were unaffordable for most Black clients. Not until the 1980s, Penningroth points out, did white-controlled corporations and law firms, able to pay higher salaries than Black lawyers were used to receiving, begin to hire Black attorneys in significant numbers.
Penningroth believes that recent scholars of Black legal history have been studying the wrong cases, paying too much attention to national leaders and too little to the communities from which the movement sprang. Their focus on the great constitutional rulings of the Warren Court slights many other kinds of Black encounters with the legal system. Unlike most such works, Before the Movement examines very few Supreme Court rulings.
Penningroth insists that the standard narrative, what he calls “civil rights history,” “has left Black people disconnected from our own legal commonsense”—that is, how ordinary people thought about the law and tried to use it in their day-to-day lives. Penningroth does not hesitate to chide previous historians for what he considers mistaken interpretations. But it is also true that his work builds on that of recent scholars such as Martha S. Jones and Laura Edwards, who, like him, have expanded the terrain of legal history to include the role of law in everyday life. Like Penningroth, they have argued that law is created not only by legislatures and courts but also by people who have limited representation within these venues yet are able nonetheless to carve out rights for themselves.
Before the Movement presents an original and provocative account of how civil law was experienced by Black citizens and how their “legal lives” changed over time. Inevitably, given the broad scope of Penningroth’s investigation, important questions remain to be answered. What was the impact of segregation and widespread racial violence—pillars of the Jim Crow system—on the functioning of the law? What would the analysis of Black political ideologies and practices add to the discussion?
The long disfranchisement of Black southerners was a national scandal that did much to shape the lives and opportunities of both Black and white Americans, as well as structures of power in the South and the nation’s capital. As Frederick Douglass noted during Reconstruction, in a putative democracy, exclusion from the right to vote is more than an inconvenience—it marks the boundaries of exclusion and inclusion in the body politic. Penningroth roots nineteenth-century definitions of civil rights in that era’s antislavery politics. But as the book progresses, politics mostly drops out of the picture. Perhaps this stems from Penningroth’s conviction that the measure of race relations may be found in the legal system, not the ballot box, or his complaint that recent historians have imposed what he calls “the politics of the 1960s” on their accounts of the civil rights movement.
Was the movement a victory, a defeat, or something more ambiguous than either? The legal edifice of Jim Crow was dismantled and numerous embodiments of white supremacy uprooted. But a look around our society today, with its stark disparities in wealth, life expectancy, education, and other indices of individual and social well-being, suggests the transformation was incomplete.
Civil rights gained a powerful foothold in the nation’s laws and legal consciousness. Yet something was lost, Penningroth believes, when legal issues were turned into moral ones and civil rights became a matter of race rather than of common citizenship. Did the movement itself, as he contends, encourage the transformation of “civil rights” from entitlements that should be available to all citizens into the narrower concept of nondiscrimination—a shield protecting only racial minorities and thus making it more difficult to enlist other Americans on the movement’s side? On this and other questions raised by Penningroth’s ambitious, stimulating, and provocative book, the jury is still out.
Eric Foner is the DeWitt Clinton Professor Emeritus of History at Columbia. His books include The Fiery Trial: Abraham Lincoln and American Slavery, which won the Pulitzer Prize for History, and Reconstruction: America’s Unfinished Revolution, 1863–1877. (April 2024)
The New York Review of Books has established itself, in Esquire’s words, as “the premier literary-intellectual magazine in the English language.” The New York Review began during the New York publishing strike of 1963, when its founding editors, Robert Silvers and Barbara Epstein, and their friends, decided to create a new kind of magazine—one in which the most interesting and qualified minds of our time would discuss current books and issues in depth. Just as importantly, it was determined that the Review should be an independent publication; it began life as an independent editorial voice and it remains independent today. Subscribe to New York Review of Books.