It Was a Good Day: White Supremacy and Legal History

Today we share the final installment of our roundtable on Ta-Nehisi Coates’s We Were Eight Years in Power. Scott Hancock is associate professor of History and Africana Studies at Gettysburg College, with expertise in Black northerners’ engagement with the law.

Previous installments of the roundtable are available here, here, and here. We will also share a concluding post tomorrow, from our roundtable’s editor and associate editor of the JCWE, Greg Downs.

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It was a good day. It was a historic day, the first day when we were in power. Sitting in my house with the windows open late on a November evening in Gettysburg, during the mildest election day weather since 1956, I could hear Gettysburg College students—usually not the most politically rambunctious group—cheering and chanting on campus a half mile away. It was a good day that arrived in part, we thought, via the persistent though erratic progress of a nation whose king, as Thomas Paine declared, was the law. The law, governed by a sovereign people, had enabled us to elect a black President.

But it was an illusory day. And we Black Americans, of all people, should have seen through the veil. Barack Obama’s faith that the long-term trends of the United States move toward freedom and equality—an optimism rooted to some extent in what historians call a constitutional culture—was infectious. Historians are well aware of the law’s proclivity for what Obama described to Ta-Nehisi Coates as the “zigs and zags” of progress. But the paradigm infecting American legal history is that, despite setbacks, the law has moved toward freedom more than away from it, evinced by the Civil War era perhaps more than any other, except for the Civil Rights era.

The Civil War era is both an obvious and contradictory example. It’s obvious because of emancipation. It’s contradictory because of what comes after, when states and the Supreme Court assaulted the Thirteenth, Fourteenth, and Fifteenth Amendments and installed state-sanctioned segregation through Jim Crow. The supposed retreat of the post-Reconstruction era is often perceived as either bad law or immoral law, later rectified by decisions putting law and country back on the correct path.

If, however, historians see the law not as establishing the conditions of freedom but the conditions of plunder, and doing so for white Americans, then the law at virtually every point has consistently fulfilled its purpose. If the law of the people themselves is understood as the law of white people themselves, then everything from Marbury v. Madison to Brown v. Board fits easily within Derrick Bell’s thesis: legal change serves dominant white interests.[1]

This is clearly how Coates reads history. And he’s reading the history that we—and by this “we” I mean we academic historians and legal scholars—have written. But he sees the law as plunder because it has had one unitary, enduring purpose: not just maintenance, but enhancement of white supremacy.

You might counter that law has dismantled significant structures of white supremacy. Exhibit number one is, naturally, emancipation. And that mattered: a law stating your daughter or brother could not be stolen away any longer is an exercise of constitutional power that cannot be overstated. But seeing the law’s utility for loosening tyranny and seeing the law’s central purpose of enhancing white supremacy are not necessarily conflicting visions. In fact, the former has rarely—maybe never—seriously threatened the latter.

You might also counter that like American history in general, legal history cannot take a reductionist view like Coates’s. Many external and internal forces shape and are shaped by the law. Class, gender, economics, the Atlantic world, judicial review…there are a myriad of variables to consider. Why reduce the lenses through which we analyze law to primarily just one?

There was a day, not a good day, when historians and most of American society said something similar about the connection of slavery and the Civil War. There was a day when W.E.B. Du Bois’s Black Reconstruction was radical in its argument that yes, the Civil War was all about slavery and African Americans. Historians have for quite some time now concurred with Du Bois. And yet, as Coates says about the country as a whole, the idea “that emancipation and civil rights were redemptive” infects our scholarship. Just as Coates describes black alienation from Civil War history as “produced by American design” and the “result of the country’s long search for a narrative that could reconcile white people with each other,” the law is a product of design that has not struggled, even inconsistently, to resolve the problem of inequity for black people, but has instead consistently worked to treat black people as a problem to resolve for the purposes of white supremacy. Will a day arrive when the consensus regarding Civil War era law is that it, too, was fundamentally about white supremacy?[2]

If so, what would this history look like? Frankly, I’m not entirely sure. But here is what it would not look like: it would not be replete with unchallenged assumptions like “the Constitution thus privileged no one ideological perspective,” or “the Founders did not speak with a single voice on most constitutional questions,” or that at times judges “have worked… ‘against the grain of the Court’s defense of liberty interests.” While we would not reify or legitimize the bad history of Reagan era political debates that popularized the unsupportable “notion of a single original intent and the idea that constitutional methodology was frozen at the Founding,” we would no longer so unthinkingly discount the singular original intent, voice, and methodology of white supremacy.[3] We would not presume that “the grain” of the Court was in the interest of liberty. We might then write histories with the premise that there was no real divergence of viewpoints among the Founders and subsequent enforcers, Lincoln included, about the role of the law and the Constitution. Instead of seeing decisions that blatantly reinforced white supremacy, such as those defeating Dred Scott and Homer Plessy, as the law not conforming to its core ideals, we’d see these decisions as conforming with and confirming of an unfaltering ideal of white supremacy from 1787 to 1863 to 1965.

This new history would see the law and conditions of freedom for Black Americans in the Civil War era as contingent upon the extent to which freedom for white citizens were threatened, limited, or expanded. The law and conditions of freedom were determined by the law of plunder: how the law enabled or hindered white political and economic progress. Exhibit number one: Thaddeus Stevens’s H.R. 29 in 1867, proposing to confiscate and redistribute well-to-do slaveowners’ lands to now free African Americans and kick start their prosperity, was tabled for nine months in Congress, and then not even debated. In a nation where the law was supposedly king and the people, now including black people, were sovereign, the king would not best the sovereignty of white supremacy.

Understanding Civil War era law as a law of white plunder, a law not moving in zigs and zags but in circles, may be too much for the legal history field. It may require what every historian of the law should already have, a thorough grounding in Critical Race Theory. And we need more histories of Civil War era law from the perspective of black people—both those writing it now, and from those who lived through it then. These wouldn’t be histories that simply complement mainstream narratives, but rather be primary drivers of understanding how law worked from the cotton field to the justice of the peace to the statehouse to the Supreme Court. We need more Thavolia Glymphs and Gloria Browne-Marshalls and Ariela Grosses and Dylan Penningroths at the heart of the legal canon.[4] Otherwise, our field falls into the same trap that Coates busts apart in ownership of being The Atlantic’s “Black Writer”: work that is “premised on the notion that the foundational crimes of the country are mostly irrelevant to its existence.”[5]

Regardless, the law of plunder will not change in our lifetimes. The good day we had has ended like all other days—just like Ice Cube’s day ended in his video of the 1992 song “It was a good day”—with white supremacy making clear it will use the law to ensure its power. On very the day I write this, President Donald Trump is threatening to revoke the licenses of major media networks that report negative news about him. We—and by this ‘we’ I mean both Black Americans and historians—may think that surely the guns pointed at Ice Cube, as he walked into his home at the end of his day, won’t come out against us just for speaking our mind. Well…many of us also thought that mild November election day was a good day.

 

[1] Derrick Bell, “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93 (January 1980): 518-34; Derrick Bell, We Are Not Saved: the Elusive Quest for Racial Justice (New York: Basic Books, 1987). The “people themselves” references Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).

[2] Ta-Nehisi Coates, We Were Eight Years in Power: An American Tragedy (New York: One World Publishing, 2017), 64, 72.

[3] Timothy Huebner, Liberty and Union: The Civil War Era and American Constitutionalism (Lawrence: University Press of Kansas, 2016), 7; Saul Cornell, “The Bourn Ultimatum: Popular Constitutionalism and Ratification Reconsidered,” Reviews in American History 40, no. 3 (September 2012): 395; Eric Rauchway, “In Retrospect: Landmark Cases in American Society,” Reviews in American History 35, no. 1 (March 2007): 159.

[4] Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (New York: Cambridge University Press, 2008); Gloria Browne-Marshall, Race, Law, and American Society, 1607 to Present (New York, 2007); Ariela Gross, What Blood Won’t Tell: A History of Race on Trial in America (Cambridge, MA: Harvard University Press, 2008); Dylan C. Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003).

[5] Coates, We Were Eight Years in Power, 114.