Tuesday, November 11, 2014

ASLH Panel Report: Rethinking Southern Legal Orders

[Here is the second panel report from Victoria Saker Woeste, Research Professor, American Bar Foundation.  The first one is here.  Thanks, Professor Woeste!]

The session “Rethinking Southern Legal Orders Before, During and After the Civil War: Controlling Slave Economies, Practicing Confederate Constitutionalism, and Reconstructing Southern Law after Emancipation,” was chaired by Ariela Gross, University of Southern California.  It consisted of three papers and a comment by Cynthia Nicoletti of the University of Virginia.

Justene G. Hill, Princeton University.  Hill's paper was "'A Monstrous Nuisance': Legislative Responses to Slave Economies in South Carolina, 1850-1860" (the paper was read by Ariela Gross in Hill's stead).  Hill's research looks at slaves as actors in the market, particularly as they engaged in illicit trade with whites and hired themselves out, and the fear these practices precipitated among slave owners.  Legislation was proposed to punish whites for their participation in this trade, but the South Carolina legislature could not bring itself to approve corporal punishment for free whites, even to preserve the public safety.  This result suggests that economic imperatives superseded racial castes in importance, inasmuch as lawmakers chose to maintain the status quo despite the "nuisance" these activities caused.

Aaron Hall
, UC Berkeley, presented "Not Their Fathers' Constitution: The Centrality of Slavery and the Centralized State in the Confederate Constitutional Order."  This paper examined the Confederate South's relationship to the Union by offering a new understanding of confederate constitutionalism in text and practice.  This new constitutionalism wedded statehood to slavery in an odd kind of "textual kinship." The Confederate framers retained old texts but imbued them with different meanings than the original, to preserve racial control and cotton hegemony.  But much of this meaning was ambiguous and meant that new constitutional questions would unavoidably arise.  "Before the 'rupture' of the Civil War amendments," Hall said, "a new constitutional conflict had already possessed the south":  a government designed to maintain slavery and little else required that its powers be strictly limited and that the governing class be insulated from future populist threats.  He gave as examples the confederate bills of attainder clause, which included protecting property in the form of negro slaves (as did the CSA privileges and immunities clause); severe limits on the CSA Congress's taxing and commerce powers, to keep the single crop economy and the slavery-based agriculture necessary for that economy intact.  The only area where the CSA government had greater powers than the Union was war powers.  Hall argued that this was not a states-rights constitution but a compact for a permanent (and limited) federal government.  Here I wrote to myself:  "really cool insight."  The confederate framers expected their constitution to empower confederate independence from the Union and were confident it would do so; if state courts strayed from this power structure they were marginalized by confederate central government and courts.  The CSA took constitutionalism seriously, reflecting the "urgent constitutional logic" of the need to fight war while protecting slavery and its attendant imperatives "to the bitter end" (even rejecting the idea of emancipating blacks who fought for the CSA).
Giuliana Perrone, of the University of California at Berkeley, presented  "Reconstructing Law After Emancipation: A Study of State Courts in the Post Civil War South."  The paper began with a description of three cases testing the legal meaning of the Emancipation Proclamation, decided in 1868.  In one, the Texas Supreme Court decided that Juneteenth marked the end of slavery in the state.  Thus it was a state supreme court that had to determine when emancipation happened and what it meant.  The destruction of slavery also destroyed the legal system of the south, at least for a time.  Emancipation, likened to death by Southerners, transfigured slaves, but southern state supreme courts did not immediately know how to recognize them in their new form.  Her research draws on the huge caseload of post-emancipation slave cases that arose, enabling state judges to perform this task.  Her point is that slavery as social practice remained before the courts long after the war ended.  (Again, a very cool idea.)  In other words, courts had to determine the future legal order of former confederate states during Reconstruction.  41% of these cases involved contracts for hire and service of slaves during the war; the rest were marriage, apprenticeship, and estate cases.  Were these labor contracts valid in the post-Civil War era?  How did these courts construe emancipation and work status of former slaves?  They struggled to define what it meant given their past and their understanding of the law.

Some states such as Louisiana barred enforcement of these contracts altogether, but most southern states did not.  The US Supreme Court would declare these agreements unconstitutional in 1871.  Perrone then used the emancipation-as-death metaphor in an extended analysis of these judicial decisions:

1.    Legal rhetoric allowed courts to excise the property character from ex-slaves so as to leave the legal person intact (as bizarre as this seems to us, it was even more so to them).  A new legal personhood for free people was to begin:  former slaves got freedom and personhood both.

2.    Judges adapted rules from the pre-Civil War period to the post war period in order to treat contract cases as if they were antebellum cases in which the slave had actually died; this shift enabled them to use same legal tools as before, leaving slave contracts intact and 19th-century jurisprudence in place.

3.    This practice offered litigants terms they could understand, even if it papered over the breach that emancipation actually created.  Regardless of wealth, all owners understood they lost value when their slaves died.  This is just a matter of imagining that all slaves died simultaneously.  Perrone then discussed several cases in depth.  For the most part, labor contracts survived emancipation, even if slavery itself did not.  She finished by extending that logic to its conclusion: slaves in achieving freedom became the legally "undead," or, in modern parlance, zombies.  Ironically, ex-slaves saw emancipation as their rebirth.  The concept of legal death in post-emancipation cases led to inquiries into new relations between blacks and whites, but judges were not concerned with much beyond immediate issue of status of former slaves.

The commentator, Cynthia Nicoletti, knitted all three papers together by noting they all focused on slaveholders' experience, provided an analysis of class tensions among southern whites, and highlighted how issues of race and class illuminate each other.  She praised each as thoughtful, well-written, and original (particularly rare to find in this crowded field).  A robust question and answer session ensued.