Brophy on Antislavery Women and the American Jurisprudence

Alfred L. Brophy, University of North Carolina School of Law, has posted Antislavery Women and the Origins of American Jurisprudence, which is forthcoming in the Texas Law Review.

“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.