Joshua Aiken, American Bar Foundation Doctoral Fellow in Law & Inequality, has posted She Had Slain Her Favorite: Race, Gender, Violence, and the Rule of Law in the Military-Occupied South:
This Article excavates the 1865 trial United States v. Temperance Neely to analyze how emergent legal cultures in the military-occupied South calcified racial slavery's logic despite formal emancipation. Through examination of previously unanalyzed court proceedings, I demonstrate how this case illuminates three interlocking dimensions of postbellum jurisprudence: legal systems simultaneously acknowledged Black life while preserving white authority through plantation logics that naturalized Black women's subordination; violence against Black women and extraction of their labor became integral to reproducing social conditions necessary for racial-economic order; and Black witnesses' testimonies, though formally admitted, revealed systemic patterns that rendered Black women's experiences unintelligible within emergent legal frameworks. Drawing on the theoretical insights of Anthony Paul Farley, Saidiya Hartman, and Hortense Spillers, I observe the persistence of 'white-over-black' ideology through an "American grammar" of formal equality, liberal rights, and the "law's calculation of personhood.” Situating the Neely case in scholarship on the Reconstruction Era, Marxist feminism, Black women’s history, I consider how formal legal reasoning relied on notions of gendered sentiment, character, and subjectivity to privilege white sentiment and justify racial unfreedom. Attending the immediate post-surrender South, my reading emphasizes how legal actors allowed Black women’s bodies to be contested sites of meaning, through which categories of race, gender, and labor might be explored. Challenging conventional understandings of the rule of law, I reconceptualize the rule of law as deference to legal institutions that transmute historical subjugation into contemporary unfreedom sanctioned by the state. By reading “along the bias grain” of the legal archive, this investigation reveals how postbellum legal frameworks positioned Black women as objects rather than subjects. This case illuminates the constitutive role Black women’s labor played in reconstructing American society and the continuities between nineteenth-century rationalization of violence and the ability of contemporary legal systems to respond to Black people’s injuries and claims.
--Dan Ernst
