Episode 61: Dylan Penningroth
Before the Movement: The Hidden History of Black Civil Rights
With the long weekend in the books, summer’s officially here. School’s out, and we can’t imagine why people would be thinking about American universities – has anything interesting or controversial been happening on campus recently? (Our field correspondent David Pozen reports.) Anyway, today’s episode is the last episode of the season, and we’re excited to let this one linger in your minds for the next few months. Today’s very special guest is the MacArthur “Genius” Award-winning Dylan C. Penningroth, Professor of Law and Alexander F. and May T. Morrison Professor of History at the University of California, Berkeley, here to discuss his wonderful new book Before the Movement: The Hidden History of Black Civil Rights.
Penningroth begins by showing how his research expands the scope of African American history to everyday legal relations between Black individuals and discusses his great-great-great-uncle as a great example. After Sam and Penningroth frame the conversation as one about Black people using private rights in support of the southern economy, David follows up with a question about the inevitability of capitalism. Next, Penningroth makes the case that his account complements, instead of contradicts, the politically-focused work of W.E.B. DuBois and historians like Risa Goluboff and Eric Foner. We end this semester with some advice for social movements. See you on the other side, listeners.
This podcast is generously supported by Themis Bar Review.
Referenced Readings
“The Privilege of Family History” by Kendra T. Field
“Race in Contract Law” by Dylan C. Penningroth
“Why the Constitution was Written Down” by Nikolas Bowie
Nothing But Freedom: Emancipation and Its Legacy by Eric Foner
Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms by Richard R. W. Brooks and Carol M. Rose
The Lost Promise of Civil Rights by Risa L. Goluboff
Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality by Richard Kluger
What are Sam & David reading?
Sam is reading Paul Sagar’s Basic Equality, examining the grounds on which we could justify our commitment to the equal moral value of all human beings (Sagar argues that there is no essential feature of human beings that requires this commitment, which instead became hegemonic as what he calls a “fictional” belief – one which we can still hold even so).
David is reading a terrific report, “The Future of Commercial Real Estate and City Budgets” by the Tax Policy Center on which jurisdictions will suffer the most fiscally as declining commercial property values are reflected in falling property tax revenue. The bottom two: Boston and Dallas!
Episode Transcript
[00:00:00] David: This podcast is generously supported by Themis Bar Review. For more information about Themis, check out themisbar.com. Thank you very much, and now back to the show.
[00:00:30] David: Welcome to Digging a Hole: The Legal Theory Podcast. On this podcast, my co-host, Sam Moyn, and I, David Schleicher, talk about legal theory and whatever else is on our minds. How you doing, Sam?
[00:00:48] Sam: Doing well, David.
[00:00:50] David: We're recording this the day after we recorded another episode, so Sam spent a lot of time with me, and I think you can tell that he seems sounds a little annoyed to have to do more of it.
[00:01:00] Sam: Well, you know, you're good in small doses.
[00:01:03] David: It's what everyone tells me. But fortunately, our guest is good in very long, long doses, both the book and the podcast. So who do we have on with us?
[00:01:13] Sam: We have the great Dylan Penningroth, who is a professor at Berkeley and the winner of a fabled MacArthur Genius Grant and the author of a fantastic new book about private law rights in African American history.
[00:01:29] David: Yeah, it's a real excellent episode. And just so you listeners know, I still do not sign on to Sam's drive-by criticism of contingency in legal history, which he does again in this episode. So, just, John, I don't agree. It's bad.
[00:01:48] Sam: Well, maybe we ought to do a showdown about it, because I--
[00:01:53] David: I think we already did.
[00:01:55] Sam: I suppose that's true, but I feel like my snark is not getting a lot of acceptance in certain circles.
[00:02:06] David: Anyway, it's a great episode. It's a great episode, and so I hope you all enjoy it.
[00:02:18] Sam: All right, well, our guest today is Dylan Penningroth, who is a professor of law and history at my doctoral alma mater, the University of California, Berkeley. So he's lucky to be in the very best place in the world. His book is revelatory. It's called Before the Movement: The Hidden History of Black Civil Rights. And we're just so fortunate that he has joined us to talk through what he's done. Dylan, welcome.
[00:02:52] Penningroth: Thank you so much for having me.
[00:02:54] Sam: So the project of the book, as I would summarize it, is to shift to what you call the rights of everyday use, and above all, the rights that African Americans enjoyed, but also struggled for, to engage in contract and own property. What we would think of as central features of private law agency. And in telling the history of how African Americans, first of all, had some of those rights even before the Civil War, but then kind of struggled for them and got them in the Civil Rights Act of 1866, you recover a great deal of Black agency in the history of this country that just hasn't maybe been as present in narratives framed around the meaning of civil rights in the mid-twentieth century and since. So is that is that approximately right? How would you summarize it? And, you know, why the focus on these private law rights?
[00:04:20] Penningroth: That's a great question. So the reason I call them rights of everyday use is in part sort of a pragmatic decision. It's because these are not special. They're ordinary rights that ordinary people could and did exercise all the time. So things like owning land, owning mules, making deals, especially deals to take care of one's elders. All these many different ways that Black people used private law. They fall for me under the heading of ordinary rights or the rights of everyday use. And I think of those as being distinct from but complementary to the kinds of civil rights that we're most familiar with today, which generally we think of as being part of federal law and as being based on the principle of anti-discrimination and anti-subordination. Those, I think, you know, are arguably special in the sense that they're not things, they're not rights that people are exercising on an everyday basis. They experience discrimination all the time, but they're not necessarily going to court about it or talking about it in a legal sense all the time. The reason that I wanted to focus on these ordinary rights is because I wanted to write a book about Black people that wasn't centered on race relations. So my field, African American history, I think is dominated by the frame of race relations. And I think that that frame is incredibly useful and incomplete. And so I wanted to make a book, write a book where Black people's relationships with one another, as well as their relationships with white people, were at the center. And the rights of everyday use are an incredibly fine-grained way to get at that story, a story where Black people at the center, precisely because most of the time when Black people went to court over property and contract, or over corporation law, they're going to court and the people on the other side are also Black.
[00:06:43] Sam: That's so well said. And I found one of the kind of brilliant and moving features of your narrative, from beginning to end, the way in which you braid that interest with the history of your own family. And that starts right away with your great-great-great-uncle and aunt and the claims that mattered to them. And then by the end, you're talking about your mother studying property law and a case I remember having inflicted on me as a student. And I just wonder if you could talk about the way this is bound up with your family history and also why as an author you chose to foreground that in so interesting a way. I should mention that also includes the facts about the racially restrictive covenant on the home that you own right now in Kensington, California. So all of that, I think, brings the story to life in a really distinctive way.
[00:08:01] Penningroth: I appreciate that. You know, I think early in the writing, I knew all along that I was essentially writing a book that would be personal in some sense. I also was talking with family members all the time about the book, probably boring them to tears sometimes. My mom went with me on some of these trips. You know, a couple of times we went on to visit some relatives in Virginia and she helped me make connections and think things through. So in a sense, I was kind of writing it for family members. But you know, in thinking about whether to make that explicit in the book, I actually came, after I'd made that decision, I came across an article by a historian named Kendra Field called “The Privilege of Family History.” And one of the things that she points out is that white historians for generations had been putting their own experiences and their own family histories into mainstream historical narratives. U.B. Phillips, you know, who wrote one of the definitive books on the history of slavery, you know, he puts pieces of himself into the book talking about his childhood in Georgia. But that for many generations was a privilege that was reserved for white historians. And recently in the past, I'd say maybe 10, 15 years, maybe a bit longer, African American historians and other historians who are not white have been becoming more comfortable, I think, with putting something of their own families into their books. I think of Martha Jones, the introduction to her book. I think of Kendra Field herself. You know, there are a lot of people who are doing this. And what it did for me is it allowed me to think more clearly about the analytical points that I was making. And it allowed me to tell a story that I hope readers can relate to, you know, in a kind of direct and maybe electric way.
[00:10:13] Sam: That's really interesting because in a way, you know, historians are late come to this. If you think of, you know, the centrality and in the critical race theory of someone like Patricia Williams of, you know, life-writing as a mode of argument. But I want to give you the opportunity to just here, the threshold of this conversation to say a little bit about the chronology, because it really is extended. And as a non-U.S. historian, I was, as I mentioned before we started, really kind of shocked by the way you can begin this story before formal emancipation and in the South, not just when it comes to free Blacks in the North. So I wondered if you'd talk about why you start there and then, you know, you do dwell on Reconstruction and the centrality of the Civil Rights Act of 1866. And then in the twentieth century, not just with Jim Crow in the early part, but with the coming of civil rights as we know it and the way in which your story is both central to that moment, but also how that moment occludes your topic in a certain way.
[00:11:39] Penningroth: No, that's right. So when I think about the beginning of the book, it begins back in the 1830s. I actually start the book with a little story about my great-great-great-uncle Jackson Holcomb, who was enslaved in Southside, Virginia, right near the place where I would go to visit my aunt and uncle to hear some of these stories. And I have a tape recording of his son, Thomas Holcomb, talking about Jackson Holcomb and how he had a boat that he used after the Battle of Richmond to transport some Confederate soldiers across the Appomattox River. And when they got to the other side, Thomas Holcomb says the soldiers paid him. And so I just thought, you know, that's kind of weird. I'd had this tape recording for years. As I trained as a historian, I realized just how odd it sounded. And of course, there have been historians going back to the 1980s, Philip Morgan, more recently, Laura Edwards, Martha Jones, who have really extensively shown how enslaved people and free people of color exercised a wide variety of rights and privileges, even during slavery. Now there's a distinction that I want to make clear here is that during the era of slavery, I'm really talking about two kinds of prerogatives. One is rights, and those are only held by free Black people. And they do enjoy those property rights, contract rights, many of them can even vote, contrary to what Roger Taney claimed in Dred Scott. So they do have these rights, but the vast majority of Black people before 1865 are in slavery, and what they have is privileges. And of course, that sounds like weak tea compared to rights. But what I wanted to show is that privileges during the era of slavery, during the early nineteenth century, are prerogatives that are recognized at law that are enjoyed by people who don't have rights, necessarily. And they extend within any form of collectivity, some associations, like churches. And there are even some Congresspeople, Kate Mazur shows, who described the United States itself as a vast association of white people. And so privileges actually have legal meaning, and I wanted to bring that out. Slaves like Jackson Holcomb had the privilege of owning things like a boat or small animals. And the reason they had that privilege is, number one, because it benefited masters, it benefited the southern economy to have this kind of convenient economic activity going on around them. But number two, because the privileges of slaves were rooted in the same set of legal assumptions that all southerners were swimming in. It's kind of like the water that they're swimming in. So there is this sense in which when 1865 comes and slavery ends, at least when it comes to property, contract, and going to court, emancipation is a less sharp break than I think many historians have argued. Eric Foner, for one, describes it as America's unfinished revolution. And I think that's true for the kinds of rights that Foner is most interested in. Voting, you know, things like that. He's a political historian, first and foremost. But for the kinds of rights that Martha Jones and Laura Edwards and I are talking about. The end of slavery, you know, it's a sharp break for those kinds of rights, but it's not a surprise to see a Black man owning a boat or even showing up in court. And so that carries through. And it's one of the sort of, one of the things that I try to carry through the rest of the book is showing just how ordinary it is for Black people to have rights, exercise rights, even in court. And over time, you know, just as you mentioned, the meaning of those rights of everyday use gets occluded by this newer, I think, more modern, more familiar idea of civil rights as anti-discrimination and anti-subordination. The two coexist throughout. Black lawyers feel this acutely because they have to deal with rights of everyday use just to make a living. But in the popular imagination, what civil rights mean today is the Civil Rights Act of ‘64 and the Voting Rights Act of ‘65.
[00:16:37] David: So the last page of the book says the book is not a lament for the path not taken. It is about, not about the lost promise of private law civil rights. I get that. But it is, I think, fairly described as a kind of pretty sustained and very powerful argument that private law has been kind of serially underrated by historians and activists alike. That they've kind of missed this part of the story. And so my questions, I want to ask questions over the course of our conversation about the stakes of that for each one of these debates. And so I want to start with the slavery period, but I certainly don't want to end there because although that part is interesting, the rest is actually, is interesting or more interesting. So during slavery, you note there's actually quite a lot of private law usage by slaves and by free Blacks. Some in the form of rights for free Blacks and others in the form of privileges for enslaved peoples. And the causal story you tell, I think, is something, goes something like in order to get things from the market, to get their economy to be useful, government, courts created fictions that allowed for, fictions or actual rights, they allowed to have some elements of a market economy, even as a separate body of private law, the law of slavery, took rights away. And so it was a necessary utility for the economy that wanted to create the incentives for people to, for slaves to travel, make people get across rivers. And so they left them and have the right to own boats. And so this immediately made me think about the kind of sometimes hot debate about the new history of capitalism. It seems to me that this, and see what you think about this, this is kind of a intervention there, suggesting that even in the heart of slavery, the market economy, the kind of traditional market economy was necessary to produce wealth, which kind of seems to undermine some new history claims. What do you think of that?
[00:18:24] Penningroth: So this, this debate goes back a long way to actually Caribbean historians in the 1980s who were writing about what they called proto-peasantries. So places like Jamaica, where you see much more extensive engagement by enslaved people in things like trading. And, you know, sometimes they're called informal economies. I actually wanted to emphasize something different. I wanted to emphasize how interrelated the so called formal economy and the informal economy were, but also how interrelated the laws were. In fact, I think that there was not, in fact, a separate body of law that was set up for enslaved people making possible their participation in the market. I think it was the same body of law. They were, as you said, sometimes creating legal fictions. They were creating various kinds of workarounds, judges were. But what I noticed most of all is the degree to which, you know, judges and legislatures, legislatures especially, declined to legislate enslaved people's market activities out of existence. So they would bar enslaved people from trading certain kinds of goods like firearms and liquor. And then implicitly, you know, by remaining silent, they're implying that slaves had prerogatives over other kinds of goods, or they might say, well, you can't own pigs. But then they would define ownership as being, you know, something like putting a slave's own mark on a pig. So you can have it in the master's mark like a brand or clip in the ear, but you can't put in the slaves mark. So I think that those sorts of decisions are kind of tacitly acknowledging that enslaved people are participating in the same legal grid of assumptions that white people are. White people use the same system of markings for pigs that enslaved people do. And that's precisely what sort of spurs the state legislatures sometimes to pass these laws, ostensibly outlawing slaves from having pigs in their own mark. So I'm not sure that it necessarily undermines the sort of new literature on capitalism and slavery so much as it kind of puts a different spin on it by showing that slaves’ economic activities, because they were so integral to the functioning of the southern market economy, it actually bolsters the South's market economy by exploiting slaves extra free time, whatever it is. They're super exploiting slaves in order to sustain this market economy.
[00:21:26] Sam: So I have more specific questions about kind of some of the chapters in the book in a bit, but I think, you know, the main kind of question about the whole project I wanted to ask is about how this project of recovery you undertake, showing us just a huge kind of practice and aspiration about the practice that has not been in our understanding. Whether at times it's, you know, it's as if we're not sure what to think about it kind of ethically or normatively. I mean, what seems to matter is that the people you're studying in the past had certain views about like what kind of emancipation they wanted. And for a long time, it really was kind of, let's call it private law freedom. And yet, you know, what about the views of, you know, maybe W.E.B. DuBois or Eric Foner, for that matter, that, you know, that wasn't good enough because that was emancipation into free labor, free men ideology. And, you know, for someone like DuBois, who's mentioned on occasion and on one occasion for in a sense diverting the NAACP from a kind of private rights agenda. For someone like him, it's a story of emancipation into capitalism, which he opposed. So I guess I struggled along the way with whether you're kind of saying low-key that this extremely popular way of thinking among historians about racial, the racialization of capitalism or racial capitalism is, it's not getting at the aspirations Black people actually had in U.S. history and maybe that actually bears on contemporary politics, too. So, you know, it's not a note of skepticism, it's more just asking, like, do you think that the aspiration for let's call it private law freedom is really at the core of what emancipation of oppressed peoples ought to be about?
[00:24:21] Penningroth: No. My story is complementary to DuBois and Foner's.
[00:24:26] Sam: Okay.
[00:24:26] Penningroth: It's, it's not meant to displace at all. They're telling a story that is absolutely true. And I, I talk about Foner's story, the nothing but freedom story, both in this book and in the Penn Law Review article that I wrote as a companion piece. Foner's thesis that being emancipated into a world where you had, as he puts it, nothing but freedom, meaning you have the freedom to form contracts, the freedom to own property, but you have nothing else. You start with no capital, no tools, no connections. That is a threadbare kind of freedom. It's a freedom that tilts almost directly back into something that smells like slavery. Foner's absolutely right about that, as was DuBois before him. What I'm trying to say is that with the rights that they were granted, there is another story to be told. And much of that story has to do with struggling against racial oppression. But a lot of it has to do with Black people's ideas about who they were themselves, their relationships with each other, their collective identities. And indeed, those two stories are related. So you think about, you know, one of the main sort of, I guess, surprises of the Jim Crow period, so the period after Reconstruction, is that you see this incredible slow but steady growth in Black wealth so that by 1910, you actually have the peak of Black land ownership, something like 15 million acres. It also happens to be the peak of lynching, more or less. And so those two stories are happening side by side. It's difficult to sort of grasp how those two things could have happened side by side until you look inside Black families and Black communities and think about how Black people mobilize the rights that were left to them by those racist state governments in the South. The property rights, the contract rights, the right to go to court against other Black people, how Black people mobilize those rights in order to achieve what property they did and what the story that you come out with, the story that I came out with, is Black patriarchy, a legalized Black patriarchy, where Black men in particular and Black adults more generally, they exploit their rights over their dependents, their civil rights to control the labor of children and wives, in order to accumulate this property that we rightly celebrate. You know, it's the beginning of Black colleges, you know, who pays the tuition? It's these Black parents, right? How did they get this wealth? By super exploiting their children and their wives. And that, in turn, generates an incredible story of contestation within Black families. You can't see it if you're only looking at this story of nothing but freedom. But the story of nothing but freedom becomes much richer if we understand what's happening, what Black people are doing with the rights that were left to them.
[00:28:22] David: One of the most powerful bits that appears in both the second and third sections of the book is about how litigation inside Black churches or about Black churches informs both attitudes towards democracy and towards law, like both kind of proto-voting rights and economic rights in the church. And I'm reminded immediately of Niko Bowie's work on how the American founders got into the whole idea of written constitutions through their experience, their colonial charters, as their corporate rights kind of gave them their political theories. So it's a very similar idea. But the question is, did they learn the right lessons? It seems that churches are really distinct institutions in terms of your relation. And you mentioned some of the ways in which attitudes in the family might teach you some different lessons or, alternately, give you certain different ideas that you might push. So I want to hear you talk a little bit about the way in which a politics educated through internal conflict over who controls churches influenced later views of later participation in politics.
[00:29:29] Penningroth: So in the book, I talk about a few things related to that. Most of what I'm talking about has less to do with political organizing than with legal savvy. So I just want to lead with that. But the two are, of course, related, especially when it comes to organizing for voting. So I guess one of the stories that comes out of Black church litigation is this distinction, this continued distinction between privileges and rights. So members have privileges, leaders have rights. And the internal politics of Black churches often turns on this distinction between those two things. Most members of Black churches are women throughout this period. And so there's an intense gender dimension to all this. How that translates into the politics of the civil rights movement, I think one thing it does is it kind of gives a deeper backstory to something that I think specialists know and people who participated also know, which is that the movement was intensely gendered. You think about someone like Ella Baker, she's kind of like the mastermind behind SNCC. But it's often a bunch of dudes who are on the television cameras, not her. Partly that's sort of her preference. She prefers to organize behind the scenes, but she's doing that because she knows how patriarchal Black ministers are and how patriarchal some of these activists are, as progressive as they are about other things. And so this kind of informs the politics of the 1960s. And it informs, you know, the ways that Black people think about their legal and political aspirations throughout. And one of the key distinctions that I think it does is it encourages certain leaders at certain times of Black organizations to lift up racial struggle as kind of the animating purpose of their organization. And that, you know, that does certain things. It's a powerful thing to do. But one of the byproducts of it is that it kind of subordinates questions of authority, questions that, as I said earlier, are intensely gendered. It kind of deflects them. So a great example is this guy, I can't remember the name, but there's this election that's about to be held for the presidency of the Elks. It’s a very large and well-endowed Black fraternal order in the 19, I think, 20s. And, you know, one of the. the incumbent president says, look, we must take a stand against Jim Crow segregation. So let's not have the annual meeting in Dallas. And so they don't. But, you know, some of the members start grumbling in print that the real reason that this guy doesn't want to hold it in Texas is because his chief rival is from Dallas. And he thinks that he might lose if the annual meeting goes to Texas. So he's kind of lifting up this racial struggle to accomplish goals that are politically internal. So there's two dimensions of politics going on here. And I think both are important to keep in view.
[00:33:03] Sam: So, you know, as I was reading this book, it just struck me at one point just kind of how many different fields of law teaching this book kind of affects. And I want you to see if you have any reflection on that, you know, because we're talking about a lot of different private law topics, the teachers of whom could read this and maybe teach in a different way, including the property law case that your mother and I read. But then, as someone who's, you know, made to teach constitutional law here, I also wonder specifically how I could, you know, teach the Civil Rights Act of 1866 differently. I mean, we take that up and it's in many of this kind of mainstream casebooks as kind of something that, you know, would lead us to talk about congressional power under the 13th Amendment and the origins of the 14th and then Slaughterhouse and the privileges and immunities of citizen. Like, what are they. But I mean, you obviously get us in this book to think about the Civil Rights Act of 1866 as actually kind of significant in a host of other ways, too.
[00:34:31] Penningroth: So, yeah, I think the Civil Rights Act of 1866 is, it's definitely a hinge point for my narrative, because, you know, as much as privileges are valuable to enslaved people, having rights makes a huge difference, right. Like you can actually go to court yourself rather than relying on some white person as a kind of stand in someone who around whom a legal fiction can be spun. So the Civil Rights Act of 1866 matters enormously. So for the, when we're thinking about how legal scholars and legal, law teachers might teach private law differently, I think that that has to be, not necessarily the beginning because of course there are slavery era cases where you have Black people participating in law. But here's a place, you know, where for the first time, race is not necessarily legally salient. It may or may not be a material fact, if you will. And so what that does over, you know, the next century, century and a half, is it kind of frees legal actors up and down the process, from litigants to their lawyers to their appellate lawyers to judges, to make decisions about whether and how to put race into the record, into the argument, to make it legally salient or not. So that, the Act doesn't say that you have to make contract law colorblind. And so people make their own choices about whether and how to put it in. I think that law professors, you know, we're heirs to that long history. If you think about it in that sense, we're sort of the latest people who have to make these choices about whether to put it into our teaching or not. I would hope that we would make more principled decisions than say, Justin McReynolds did in the 1916 case Byers v. Railroad [ed.: Southern Express Co. v. Byers] where, you know, a Black man sues for contract damages for mental anguish. And McReynolds who, he might be the most racist guy ever to sit on the Supreme Court, or at least the most flamboyantly racist guy, turns his back on Charles Hamilton Houston during oral arguments, just to show him who's boss. You know, McReynolds, he takes a case that is explicitly about a Black man's emotions, his suffering, his mental anguish, and McReynolds turns it into a case about a man’s mental anguish. He takes Byers, his race out of the case. Why does he do that? I think it's because McReynolds wants his holding barring damages for mental anguish and contract. He wants it to sweep wider than it would if he said, you know, that Byers was a Black man. Other courts might limit their decisions to cases involving Black people or racial minorities and McReynolds doesn't want that. He wants to ban it entirely. That I think of as a choice based on a bad principle. There are other actors along the way, who I think make these choices out of thoughtlessness or whimsy. That, you know, they'll make hypos involving, you know, hypothetical slaves. I would hope that contracts teachers, property teachers would not do that either. But I think maybe the main takeaway is that the case, the cases involving Black people, and race more generally, sometimes it's already in the case books. All you have to do is figure out something about the background and talk about it and then talk with students about whether and how you think it affects how we should think about that case. And I don't think that's necessarily limited to a question of would the case have come out differently if the judge had said or known that the plaintiff was Black. I don't think it's limited to that. In a way I think it can be helpful to think of sort of the, put the presumption on the other side and think, okay now that we know that this case involved a Black person, should we think about it differently if we hypothesize that the plaintiff was white. So there are these ways that I think we can play with these cases that are already in the casebooks and make them both more relevant to students, but also make it, I think sort of truer to what the cases were actually about.
[00:39:55] Sam: That's really helpful. I mean, that was kind of, you know, a question that bears on the whole book. But of course we definitely want to get to the year of the new civil rights or Civil Rights 2.0. But before that, let me just ask about the racially restrictive covenants. You kind of say that these, these aren't often appreciated for how important they were at a moment of movement and so end up leaving an enormous legacy on the kind of housing landscape that we still live in. But I want to return to this question about the relative importance of one kind of civil rights versus another because I found your narrative of Shelley v. Kraemer, I'm from St. Louis, really interesting. You know, I guess that normally it would be, you know, read as almost like in a case about anticipation of things to come. And you, you kind of pivot to talking about horizontal privity and once again, we're, we're narratively then in a space that's not about the need for different civil rights, but about the potential in the private law itself.
[00:41:29] Penningroth: I think that's right. Although I wouldn't necessarily that say that there's tons of potential in the private law. I think that what I was doing there, and I should say that I was drawing heavily from Brooks and Rose’s wonderful book Saving the Neighborhood, what I wanted to do there was sort of show how fragile the racially restrictive covenants really were. And the fact that, as they say, those covenants are fragile because of property law. It's not so much anti-discrimination law that makes them fragile. It's, it's just sort of things that are deeply embedded in private law theory private law principles that makes them fragile. That opens up certain limited kinds of opportunities for certain kinds of Black plaintiffs. But I think what's equally important in that story is how adaptable white supremacists were in finding new ways to in this instance keep Black people out of their neighborhoods and/or introduce exploitative contracts into Black people's efforts to purchase houses and land. That I think is sort of a story that runs right alongside the story that I'm telling and I really kind of want to emphasize both halves of that story. You know, the ways in which white supremacists are exploiting property law and contract law. Black people are finding ways to adapt as best they can. I guess the short version of this is that a lot of the story of Black legal experience is happening in the world of private law. That's where a lot of the battles are being fought. In some senses, this isn't really new, what I'm saying. Like we've known for generations that, you know, sharecroppers are being exploited through private law. But what I'm trying to do is first and foremost, take Black people seriously as legal thinkers, something that's sometimes difficult to see if we're only looking at say appellate court records about sharecropping, but to see in cases that were not reported or didn't even get appealed how Black people are thinking about their rights, how they're thinking about a contract, how familiar they are and how difficult they're finding it to use those rights and yet nevertheless trying as best they can within the limited set of resources that private law offers them. And so, you know, in the big picture, so the payoff of that story is that it feeds into the story of civil rights in the 1950s and 60s in a couple of ways. One is that when the activists go south, they're encountering Black people who are already quite familiar with private law. They don't need to be taught that. They need to be shown some things about voting rights. And they don't necessarily have legal expertise, but they're quite familiar with what a contract is. And so that story, I think the two stories feed together and all I want to do is fill out that part of the story, which I think has sometimes gotten crowded off stage by what I call the freedom struggle narrative. They complement each other. They're not mutually exclusive. They actually work together.
[00:45:13] David: So I have a question that kind of follows there nicely, which is, what were the stakes of forgetting private law earlier? And so one of the stories you kind of tell is how the civil rights movement focused on what were earlier called social rights, kind of rights of participation, anti-discrimination, rather than on say directly enhancing traditional civil rights or private law rights or protecting people in that way. And so I wonder a little bit about what a civil rights movement that was more devoted to thinking about protecting civil rights, traditional civil rights or non-social rights, or protecting contract and property rights. And so one thing that kind of comes up a little bit in discussion is your discussion of how Buchanan v. Warley, which is the case against American apartheid, is actually reasoned almost entirely on property rights language. There's a little race there, but a lot of it is on the rights of property owners to sell to whomever they want. And I wonder a little bit about what a civil rights movement that focused more on protecting traditional civil rights, as I say, property and contract rights, vis-a-vis some of the social rights. Like would it have been going after exclusionary zoning or maybe after covenants generally, which also limit the ability to build apartments and limit integration, all sorts of things. So can you just speculate a little bit about what if this book had appeared earlier or the lessons had been learned earlier, what do you think people would have done with it?
[00:46:41] Penningroth: It's a great question. And of course, Buchanan was about the rights of a white seller, not a Black buyer. So it is kind of a--
[00:46:51] David: I mean, strategically brought by the NAACP, but he posed it that way for a reason.
[00:46:55] Penningroth: Exactly. Exactly. So what would a movement like that have looked like? Well, you know, early in the NAACP’s history around 1912 into the 1920s, they actually kind of confront this question of whether they're going to expend any of their precious legal resources helping Black people litigate what they describe as private rights. And the answer they come up with is no. They're only going to litigate cases that will affect the rights of Black people as a race. So, you know, a case like Buchanan fits nicely into what they want to do. And in a way it extends, you know, this effort to protect and extend the rights of Black people generally into private law in really valuable ways. Risa Goluboff, I think, has, you know, she was one of the first people to kind of pursue this line of reasoning. She talked about it in part through the lens of labor rights. But these are closely related, I think, in many ways. Having a property right in your labor, that's part of the, you know, the soup that's going on conceptually in the early twentieth century. I think that it's difficult for me to answer in part because the people who I'm writing about not only don't see themselves as part of a movement, but probably would have found it difficult to conceptualize themselves as being part of a movement because the rights they were pursuing so often were cast as individual rights. Now, there are ways to kind of do that, I think, but what's fascinating to me is the ways in which there's this tension between the rights of the race and the rights of individuals who happen to be Black. That's a creative tension that I think persists, and again, most poignantly in the NAACP’s decision making. Sometimes they dovetail, right? Like when you have Black corporations like churches or like the Montgomery Improvement Association or SCLC, you know, those are sort of corporate rights, rights of corporate persons. But a civil rights movement founded on individual rights of property and contract, that's part of the reason why I say that this is not a lament for the lost promise of private law. I just think it would have been very difficult to do. Again, my goal in detailing this wasn’t so much to show what private law could do to overthrow Jim Crow, although it could do some toward that. It was to use private law as a window onto Black people's lives, how they thought about themselves, how they thought about law.
[00:50:13] Sam: That's a fascinating answer, and I think I want to come back to it in a moment, but I want to ask another question about just how you narrate the kind of mid- to late-twentieth century. Because I think our listeners would benefit from hearing both how you are really brilliantly able to show the persistence of the concerns about private rights through the long or short civil rights movement. You know, a great moment is about Joseph Jackson, Martin Luther King’s rival. But then there's also the emphasis on the forgetting. And those two claims can fit together, obviously, but who forgot? And was the forgetting due to a certain kind of elite and public consensus about what civil rights are really about? Or if not, how did the persistence and forgetting stories fit together?
[00:51:28] Penningroth: Yeah. Who forgot? So that part of my book is trying to do some delicate work. I don't think that anyone purposely forgot, although people like that Elks leader were certainly doing things that would lead eventually toward this kind of forgetting. But I think what's going on is that early in the movement, people are pretty painfully aware that casting the Black freedom struggle as something sacred is a powerful organizing rhetoric. And they rightly seize on that. They elevate civil rights into a sacred cause. And that was necessary. I think the movement could not have succeeded if not for that. And just to bring it home personally, I would not be sitting here talking with you had it not been for that civil rights movement. And so that was an absolutely necessary move that the activists had to make. What I'm trying to show is that in making that move, they kind of drew a little bit of a veil over this longer history of Black engagement with private law and with law generally. And, you know, that was a necessary move that they had to make. It was a move that I think caused some Black lawyers some consternation, some anguish, because they had to navigate between those two worlds. They had to navigate between what you might call sort of the profane or mundane world of, you know, run of the mill bread and butter cases, some of which actually kind of fit very uneasily within this sacred narrative of freedom struggle. And then they had to navigate back to this sacred world of freedom. And you can see it vividly in the doll test where Thurgood Marshall gets asked something like 15 years after Brown v. Board of Education by Richard Kluger, who wrote Simple Justice, the great narrative of the fight against legal segregation. And Marshall gets asked, you know, why did you rely on the doll test that you know, you've been castigated, your team was castigated for this footnote 11, relying on what many people view as shaky social science purporting to show that Black children when shown Black dolls and white dolls inevitably choose the white dolls and that this reflects psychological damage. And Marshall is pretty blunt about it. You know, what he says essentially is I wanted to try this case like any other case with damages. If your car ran over my foot, you know, or if your car ran over my client's foot, we would come after you for the damage that your act caused. And he's drawing from not only this long history of Black engagement with law, but he's picking up on an insight that Pauli Murray had earlier in the century where she's fully aware of this vital connection between public and private legal world. And it's one that I think Black people generally are quite aware of too. And Marshall is talking to all of those audiences. He's talking to the Supreme Court, but he's also talking to Black people who are after the ones, after all the ones who are going to have to go and put themselves and their livelihoods on the line for the, for the legal struggle against segregation.
[00:55:42] Sam: Okay, so I'm going to return to David's question and ask, I think another version of it, but it also kind of intersects not just some of your prior responses, but the amazing conclusion to the book. So I really appreciated the kind of contrast you draw with Risa Goluboff's book. I mean, you also said they were proximate too, and I got that. But as I remember her book, it's about the prospects for a politics of race and class together and how allegedly, for contingent reasons, civil rights, which people are defining in lots of different ways in the 30s, get defined in a class-free way by the 50s and, you know, to this day, you know, people like Adolph Reed are upset and say we ultimately need something else that, you know, combines race and class emancipation. You know, your book is just very different. And not just in that it's not nostalgic for private law liberation. It's that its main goal seems to be about like restitution. Like you do very beautifully say in the conclusion, we have to capture not just Black legal lives, but Black lives, which were so centrally bound up as a matter of their intention and politics with, you know, private law freedom. But then there's this question like, what about prospectively? You know, because Risa's book would be very clear, or Adolph Reed or whomever, that we just need to go back and have a third reconstruction in which race and class go together finally. But you're not exactly giving us guidance about the future in the same way. Why not?
[00:57:58] Penningroth: Maybe because we historians, we're leery of, you know, prescriptive arguments.
[00:58:09] David: Not Sam. Sorry.
[00:58:11] Sam: Well, but not Risa. I mean, it's not hard to understand what her goals would have been. I mean, probably still are. I haven't talked to her lately.
[00:58:19] Penningroth: Yeah, I don't know. I guess the reason I didn't try to put too much prescription in there is because I'm not sure. You know, I'm not sure. I can say that, and I feel confident saying that, that those who are engaged in activism today can and should draw strength and inspiration from the stories that I'm detailing about the past. So for example, you know, you have that, you know, an organization like Black Lives Matter. But, you know, this is common, I think, to many organizations where, you know, there are internal struggles. You know, over governance, over resources, all of these things happened in the past. They're not new and the ways that people in the past approached them, I think, you know, sometimes they can be cautionary for people who are forming activist organizations, but sometimes they can be inspirational. You know, at the most basic level, I think the example, the contrast that I draw between the MIA, Montgomery Improvement Association, and SNCC Is one that I think, it doesn't necessarily point in one direction, but I think it offers lessons for what the advantages and disadvantages of incorporating are. So SNCC didn't last very long and there are a lot of reasons for that. But I think one big reason is that it didn't incorporate. And the MIA, it held out for an incredibly long time, something like, I think it was more than 13 months, in spite of unrelenting pressure from the Montgomery power structure and beyond. And I think part of the reason they were able to last that long is because about six months into the boycott, they incorporated. They filed the papers down at the courthouse. They had a board of directors. Centralized decision making. Centralized who got to speak for the organization. Made it possible for the organization to hold property and act legally. All of these things are powerful tools. And, you know, I guess if there's a lesson to take away for organizations today, it might be, number one, the word corporation isn't necessarily a dirty word. It is just a tool that allows you to do things, but also exposes you to certain kinds of risks and you have, if you want to make headway, it might pay to learn how to use those tools. So I guess that's kind of how I come down. It's not necessarily pointing me in one direction or the other. And it's it certainly doesn't suggest to me that there is kind of salvation for Black people in private law rights, but it does suggest to me that if we take seriously this history, we might be able to connect today's movement activists to people who they might want to mobilize in a, in a way that resonates with a broad swath of African Americans. Does that make sense?
[01:01:33] Sam: Totally. I mean, it depends on whether they also forgot. Not just kind of the narrators of civil rights, but--the book, you know, beyond any of these questions is an extraordinary thing, and we're just really grateful to you for spending some time with us.
[01:01:50] Penningroth: I so appreciate you having me on. This has been wonderful.
[01:01:56] David: Thanks for coming on. Thank you.