Author Archives: Alfred Brophy

What Did Students Study in Southern Colleges Before the Civil War?

By Alfred Brophy

What did students study in Southern colleges before the Civil War? Well, in algebra class, they sometimes studied how terrible Yankees were. Take several examples from the math textbook of Professor D. H. Hill of Davidson College:

A Yankee mixes a certain number of wooden nutmegs, which cost him 1/4 cent apiece, with a quantity of real nutmegs, worth 4 cents apiece, and sells the whole assortment for $44; and gains $3.75 by the fraud. How many wooden nutmegs were there?

Fun in math class, eh? (Am I right in thinking that 4×-1/4x=375?)

And they studied the hiring of a slave:

A planter hired a negro-man at the rate of $100 per annum, and his clothing. At the end of 8 months the master of the slave took him home, and received $75 in cash, and no clothing. What was the clothing valued at?

Also, on the issue of emancipation and the generosity of North and South, try this problem:

A gentleman in Richmond expressed a willingness to liberate his slave, valued at $1000, upon the receipt of that sum from charitable persons. He received contributions from 24 persons; and of these there were 14/19ths fewer from the North than from the South, and the average donation of the former was 4/5ths smaller than that of the latter. What was the entire amount given by the latter?

Mighty interesting stuff to see what’s on the minds of antebellum textbook authors, isn’t it? I will talk shortly about some of the more traditional curriculum in southern colleges shortly.

A Moving History from the Era of Jim Crow

By Alfred Brophy

I’ve been talking about African American intellectuals, their literary output, and the era of Jim Crow a bunch of late.

One of my favorite works of history is W. Sherman Savage‘s The Controversy Over the Distribution of Abolitionist Literature, 1830-1860 (1938), by the Association for the Study of Negro Life and History. Why has it won this place in my heart? In part because of the conditions under which Dr. Savage (who was a professor of history at Lincoln University) wrote and published it–in the dark days of Jim Crow. Its newsprint paper testifies to the difficult economic conditions of its publication. Yet, despite the hardships of being an African American scholar of extremely modest background and means, Dr. Savage persevered.

I first fell in love with this volume when, as a third year law student (now many, many years ago) I was working on the response to abolitionist literature that was mailed through the United States mail to southern slaveholders and free blacks alike. The abolitionists’ campaign was a shrewd one–to use that great engine of commerce, the mails, to get their ideas into the hands of people where they might have an impact. The response testifies to the power of ideas to liberate us as a people.

Savage’s volume collected a lot of wisdom and presented it in simple and therefore elegant prose. And as I wondered about why such an important work was printed on such, well, inexpensive paper it dawned on me that this was the case because this was likely all the publisher could afford. Ah, further testimony to how ideas can find expression and an audience, even when they are not clothed in the trappings of wealth and majesty.

It’s further testimony to the perseverance of people who sought to tell the truth in those dark days–and were able to help our country remake itself.

Savage’s book is also a reminder that the mainstream academy does not always address issues of importance to African Americans. As Christopher Metzler’s been talking about here of late, we need to be careful to produce scholarship of importance to the African American community–and to our country as a whole. Similarly, we ought to be very suspicious of our colleagues who tell us that issues of race aren’t important or that we’ve already learned what we’re going to from research on race.

Hutchinson on “Racial Exhaustion”

By Alfred Brophy

You may be interested — perhaps very interested — in Darren Lenard Hutchinson’s new article “Racial Exhaustion,” which is forthcoming in the Washington University Law Review. Here’s Hutchinson’s abstract:

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and Whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that Whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to Whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.

This Article argues that the public’s racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals – including persons of color – might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.

It’s a long article and deals with a lot of history and contemporary politics, too — we’re going to be hearing more about this. You can download the article for free here.

Honorary Degrees: Jim Crow and the Future

By Alfred Brophy

The blogosphere is lighting up with discussion of Washington University’s decision to award an honorary degree to Phyllis Schlafly. Sometimes those decisions are controversial; at other times, they are something that everyone agrees on. That reminds me of one of my university’s excellent decisions on an honorary degree, which it awarded back in 2006 to art collector and benefactor Paul R. Jones. The University of Delaware houses much of his collection of African American Art.

But first a step back in time to the 1930s Alabama. It was one of Jones’ childhood aspirations to play football for the Crimson Tide. Alas, that was not to be. Instead, he played for Alabama State. In the 1940s, when Jones was a student at Howard University, he applied to the University of Alabama’s law school and was denied admission because of his race. That didn’t stop him, however; he went on to a successful career as a businessman in Atlanta, then to work in the Nixon administration, and even a run for Congress in 1982 (as a Republican). At one point in the 1970s, Dr. Jones was in the federal government’s education department and approved a large grant to the University of Alabama for adult education. He never mentioned his history with the university at that point–he just did something that was forward-looking and positive. Though that did not mean that he had forgotten his history with the university; in fact, he saved the law school’s letter to him.

In 2004 the University of Alabama and Dr. Jones began a partnership that involved a show of some of his art collection in Tuscaloosa; that was followed by a generous gift by friends of the university for a scholarship for needy students in his name. And this culminated in his giving a commencement address in August 2006, along with an honorary degree. Even there, Dr. Jones did not talk about the past; he chose instead to talk about the graduates, their families, and the future. It was a moment of a gesture to make amends for the past and to build something better for the future.

The image above is Romare Bearden’s School Time Bell.

Harper’s Ferry Monument to Hayward Shepard

By Alfred Brophy

I’ve been talking about our memory of the era of slavery some here of late. Perhaps you’ll be interested in this.

Back in the 1930s the United Daughters of the Confederacy put up a statue dedicated to Hayward Shepard, an African American man who was killed at Harper’s Ferry. He was the first person killed in John Brown’s raid.

The monument reads

On the night of October 16, 1859, Heyward Shepard, an industrious and respected colored freeman was mortally wounded by John Brown’s raiders in pursuance of his duties as an employee of the Baltimore and Ohio Railroad Company. He became the first victim of the attempted insurrection.

This boulder is erected by the United Daughters of the Confederacy and the Sons of Confederate Veterans as a memorial to Heyward Shepherd, exemplifying the character and faithfulness of thousands of negroes who, under many temptations through subsequent years of war, so conducted themselves that no stain was left upon a record which is the peculiar heritage of the American people, and an everlasting tribute to the best on both races.

Now, why did the UDC put this up? The idea was that if they could show that slaves and free blacks wouldn’t join Brown’s rebellion that slavery wasn’t so bad. If free blacks wouldn’t join, it would show that they were on the side of the slaveholders rather than the violent abolitionists.

This, of course, was controversial. The NAACP protested against it, because it suggested that the slaves accepted their lot and benefited, perhaps even liked, slavery. Of course, while some saw him as devil, an abolitionist nut who fomented Civil War, others saw him as a hero. W.E.B. DuBois proposed a counter-monument to the Heyward Shepard monument in 1932, which would read:

Here / John Brown / Aimed at human slavery / A Blow / That woke a guilty nation. / With him fought / Seven slaves and sons of slaves. / And 4,000,000 freemen / Singing / “John Brown’s body lies a mouldering in the grace / But his Soul goes marching on!” / In gratitude this Tablet is erected / The National Association for the Advancement of Colored People / May 21, 1932.

Still, the town put up the monument. It remained on display until the 1980s when, during renovations, it was removed. You know what? It’s back up again, though this time with a plaque that helps put it into context. I think that’s probably the best possible result: let visitors to Harper’s Ferry know that these sentiments existed and that they were part of an attempt to re-write the history of slavery. Unfortunately, that attempt was pretty successful. And that deserves a post all its own.

If you’re interested in learning more about this, you might enjoy a book by Teresa S. Moyer and Paul A. Shackel called The Making of Harpers Ferry National Historical Park: A Devil, Two Rivers, and a Dream. I wrote a review of it recently for H-Net, which is available here.

The photograph of “John Brown’s Fort” by Marsha Wassel is from the National Park Service’s website on Harper’s Ferry.

Merkel on the Nascence of Free Soil Constitutionalism

By Alfred Brophy

We continue to hear lots of talk about antislavery and proslavery law–it’s in part a response to the growing discussion of reparations. William Merkel of Washburn University’s law school has a new article out on “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism.” Free Download

Merkel’s abstract reads:

Despite his severe racism and inextricable personal commitments to slavery, Thomas Jefferson made profoundly significant contributions to the rise of anti-slavery constitutionalism. This Article examines the narrowly defeated anti-slavery plank in the Territorial Governance Act drafted by Jefferson and ratified by Congress in 1784. The provision would have prohibited slavery in all new states carved out of the western territories ceded to the national government established under the Articles of Confederation. The Act set out the principle that new states would be admitted to the Union on equal terms with existing members, and provided the blueprint for the Republican Guarantee Clause and prohibitions against titles of nobility in the United States Constitution of 1788. The defeated anti-slavery plank inspired the anti-slavery proviso successfully passed into law with the Northwest Ordinance of 1787. Unlike that Ordinance’s famous anti-slavery clause, Jefferson’s defeated provision would have applied south as well as north of the Ohio River.

You can download the full article here for free.
Alfred Brophy

Buckner Inniss on Reparations Rhetoric

If you’ve been following the reparations movement of late, you’ve likely seen talk of the lawsuits filed back in 2002 in federal courts around the country.  They were consolidated in the Northern District of Illinois in front of Judge Norgle.  The name of the case was In re African American Slave Descendants Litigation.  Whew, that’s a mouthful.

Lolita Buckner Inniss of Cleveland State University’s Law School has recently posted a paper analyzing Judge Norgle’s 2006 opinion dismissing the case.  (So maybe I should have titled this post, Buckner Inniss on anti-reparations rhetoric.)  Her abstract is as follows:

In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants’ Motion to Dismiss Plaintiffs’ Second Amended and Consolidated Complaint in ‘In Re African American Slave Descendants’, a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric.  Critical legal rhetoric is a potent tool for exposing the way in which the public ideologies of society and the private ideologies of jurists, legislators and other legal actors are manifested in legal and law-like pronouncements. After introducing this case, I briefly tracing the evolution and meaning of the term rhetoric and examine the relationship between rhetoric and law. I next explore the connection between rhetoric and ideology, which is crystallized in the form of the ideograph and its use as a tool of what is known as critical rhetoric.  Finally, I show how critical legal rhetoric is achieved by bringing critical rhetoric to law, and thereafter apply critical legal rhetoric to the case of ‘In Re African American Slave Descendants’.

You can download the paper here for free.

Alfred Brophy

Derrick Bell and James Madison on Interest Convergence

By Alfred Brophy

Professor Derrick Bell of New York University Law School is famous for, among other work, the “interest convergence” theory: that white people will support racial justice only to the extent that there is something in it for them. That is, only to the extent that there is a “convergence” between the interests of the white people and racial justice. Perhaps the best-known application of this thesis involves the 1954 decision in Brown v. Board of Education: the idea is that the Supreme Court supported Brown because it served the United States’ cold war agenda of supporting human rights. Moreover, it was a decision that was largely imposed (in Bell’s picture) on the south by people in the north. Thus, the interests of those who were devising the decision converged with the interests of the black plaintiffs.

There’s a lot that can (and has) been said about this. For instance, it implies a close connection between judges and the interests of the white community more generally. There is relatively little room for judges to have autonomy to make their own decisions. It also denies the African American community much of a role in shaping law. I’m planning on talking a lot more about the ways that African American intellectuals set the agenda for constitutional development in the twentieth century soon. (A quick take of my ideas appears here.)

So while I disagree with the strong version of his thesis, I have to agree with a weaker version of it: that the will of the majority tends in the direction of its self-interest. Bell’s ideas channel that of another great political theories, James Madison. Madison was one of the co-authors of a series of newspaper articles supporting adoption of the Constitution known as the “Federalist Papers.” One of Madison’s great concerns was about the influence of “factions.” In Federalist 10 Madison addressed the problem of factions and in particular the problems with factions have a majority–that the majority will allow its interests to dominate the “public good”:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

Madison wondered how the effects of factions might be limited:

Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

Madison wrote more fully about the problems with the self-interest of factions in an essay written on the eve of the Constitutional Convention in 1787, Vices of the Political System of the United States. Madison asked what would restrain a majority “from unjust violations of the rights and interests of the minority, or of individuals?” Well, only three things and he found none of them very powerful:

1. a prudent regard to their own good as involved in the general and permanent good of the Community. This consideration, although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society, will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it to be imagined that an ordinary citizen or even an assemblyman of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.? It was a sufficient temptation to both that it was for their interest: it was a sufficient sanction to the latter that it was popular in the State; to the former that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious Ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.

Obviously Madison is talking about legislatures rather than courts, but Bell and Madison are running on closely parallel tracks. They both emphasize the role of self-interest (or group interest) in politics. What interests me here is that Bell’s thesis has a distinguished parentage. But also I think it’s important to think about ways that the Constitution–that Madison designed–regulates the expression of self-interest.

I’m not so pessimistic as Bell and Madison (though that may just mean that I’m wrong). Perhaps we should talk some more about the ways that the Constitution and judiciary limit self-interest and protect the rights of racial minorities.

Revisiting Narratives in Legal Scholarship

By Alfred Brophy

We haven’t heard a lot about use of narratives in legal scholarship of late. They were quite popular in the 1980s and 1990s, but scholars have migrated to other methods–partly towards empirical legal studies, partly towards legal history, and to other places as well. There were a lot of attacks on narratives, including questions about whether they are “legal scholarship” or some other kind of advocacy.

One thing that I think was lost in that debate was the role that narratives have held in American history. Was not Uncle Tom’s Cabin a narrative attack on southern legal institutions? To be sure, it was a lot of other things, too. But I have never seen Uncle Tom’s Cabin ever discussed in the narrative debate.

Now a student at Yale Law School, Monica Bell, enters the scene with an article forthcoming in the University of Pittsburgh Law Review that looks at the work of four younger African American legal scholars–Kenneth Mack of Harvard, Devon Carbado of UCLA, Tracey Mears of Yale, and Richard Brooks of Yale. Bell observes that none of them are writing in a narrative tradition. Bell herself, however, begins the article with several pages of narrative (a dialog between “me” and another student at the fictional Calabresi Law School–and I’m going to put out a wild guess here that that’s Yale Law School).

Here’s her abstract:

This Article revisits the debate over minority voice scholarship, particularly African-American scholarship, that raged in the late 1980s and early 1990s with the advent of critical race theory (CRT). Many critical race theorists elevated the voices of minority scholars, arguing that scholarship in the minority voice should be accorded greater legitimacy than white intellectuals’ work on race. Many scholars of all ethnicities disagreed with Crits’ analyses. They charged that good scholarship by minority writers should be judged as a fact-in-itself, not ghettoized or subjected to less rigorous analysis than other scholarship. This Article explores the work of four current up-and-coming black legal scholars to revisit that early disagreement and its ramifications in the modern black legal academy. By and large, it appears that the anti-CRT writers have won the debate. Today’s legal academy more closely reflects the anti-narrative perspective on scholarship. Black scholars continue to write on racial topics, but tend not to convey points through claims of authenticity. This Article suggests that one reason African-American legal scholars continue to write about race, despite the risks of doing so, is their sense of obligation to the black community. I contend that this obligation runs just as deeply for black academics as it does for black practitioners, who tend to closely relate the legal profession with the struggle for racial justice.

You can download the article for free here.

I very much enjoyed Bell’s article. But I wonder about this statement: “The small number of courses and professors who teach critical race theory at the most elite institutions is additional evidence that critical race theory is gradually being phased out of legal academe.” (Bell at 45)

We may be too far down the road from narratives for them to make a comeback, but scholarship about the centrality of race to the legal system shows no sign of diminishing. In fact, I think we’re going to continue to see vibrant, terrific scholarship on race and law. There’s no shortage of subjects for study or of interest in it.

Thanks to Mary Dudziak’s legalhistoryblog for bringing this to my attention.

The Most Important Books to Randall Kennedy

By Alfred Brophy

The current issue of Newsweek features Harvard Law Professor Randall Kennedy. It talks about the five most important books to him. Pretty intriguing list. Professor Kennedy writes:

1. “The American Political Tradition” by Richard Hofstadter. It ignited my interest in history.

2. “Black Boy” by Richard Wright. It indelibly imprinted on me the horrors my grandparents and parents faced as blacks in the pre-civil-rights Deep South.

3. “Reconstruction: America’s Unfinished Revolution, 1863–1877” by Eric Foner. A magnificent scholarly edifice.

4. “Our Undemocratic Constitution” by Sanford Levinson. A fearless examination of the Constitution by one of the most adventurous (and overlooked) U.S. intellectuals.

5. “Four Quartets” by T. S. Eliot. Because it contains the poem “East Coker,” in which one finds the lines: “For us, there is only the trying. The rest is not our business.”

As I say, it’s an intriguing list. I need to think about what would be on my top five–perhaps we’d overlap in Foner’s Reconstruction–a brilliant and sweeping book. When I first read it I couldn’t even begin to imagine how one person could have the knowledge to write such a comprehensive book.

I’d probably include C. Vann Woodward’s Strange Career of Jim Crow and Morton Horwitz’ Transformation of American Law, 1780-1860 and maybe G. Edward White’s Marshall Court and Cultural Change, because it gave me a sense of how to combine cultural and intellectual history with legal thought. Wright’s Black Boy is a fabulous volume, of course; but for me Ellison’s Invisible Man was more influential, because it lead me to understand the response of African American intellectuals to Jim Crow. And it’s the source of the title of one of my current projects, “The Great Constitutional Dream Book.” Really small tidbits are here and here. And there’s some more in the first chapter of Reconstructing the Dreamland.

If we’re talking about articles and essays that have influenced us, I would add Kennedy’s “Race Relations Law and the Tradition of Celebration: The Case of Professor Schmidt,” which appeared in the Columbia Law Review back in 1986.

Alfred Brophy