Articles

Laura F. Edwards: “The Reconstruction of Rights after the Civil War”

October 6, 2019


[ Church Bells ]>>Well good morning
again and welcome back. I am Kathryn Schumaker. I’m an Assistant Professor
of Classics and Letters, and I’m pleased that you
could join us here today for the University of
Oklahoma’s Teach-In focusing on the strength and
fragility of constitutions. Thank you to Eric White,
who’s out there somewhere, for that wonderful talk. And our second speaker
today is Laura Edwards, the author of A Legal
History of the Civil War and Reconstruction:
A Nation of Rights. She is also the author of
The People and Their Peace: Legal Culture and the
Transformation of Inequality in the Post-Revolutionary South, Scarlet Doesn’t Live Here
Anymore: Southern Women in the Civil War Era, and
Gendered Strife and Confusion: The Political Culture
of Reconstruction. Professor Edwards is the Peabody
Family Professor of History at Duke University and
an affiliated scholar at the American Bar Foundation. She works on the 19th century
United States with a focus on law, gender, and race. Please join me in
welcoming Professor Edwards. [ Applause ]>>Hello and thank you, Kathryn. And thank you, President
Boren and Kevin Butterfield. This is Wonderful to be here. I’m loving Oklahoma, so. And today I’m going to switch
from Germany and downfall of constitutions and talk about
a constitutional transformation within the United
States, one that is fueled by ordinary people like all
of us, which is why I’m going to start out with
Maria Mitchell. And let me make sure
I get this to go in. Whoo-hoo. I never know the
PowerPoint is actually going to work, so yay. So far, so good. OK. 1870. Hodgkin County, South
Carolina, and Maria Mitchell. She’s an African American
woman and she did something that she could not have done
just a few years earlier when she was enslaved. And what she was doing was, as
she said, talked for her rights. Now she’s talking for her rights
because she’s having a problem with a man named B.D. Armstrong,
who’s a white landowner and also likely her employer. And according to the testimony
in the trial that followed, Maria Mitchell expressed
her anger in a form common to the 19th century South, a highly stylized verbal
barrage that’s intended to attract attention
to the incident and to shame her
intended target. Or, as her son put
it in his testimony, his mama was talking loud. So Armstrong demanded
that she stop. Mitchell responded that she
was talking for her rights and she would as
much as she pleased and as loud as she pleased. And so Armstrong, the
employer, issued a threat. If she did not hush,
he would make her hush. When Mitchell continued
to denounce him — loudly, according
to the testimony — he struck her in the face and
broke out a piece of her tooth, or so she testified later when
she turned her words into action and filed charges against him. So I stumbled across Maria
Mitchell’s case years ago. Actually it was decades ago. I was working on my dissertation
and I flagged it first because I thought it provided a
particularly compelling example of something that I
already knew, how the defeat of the Confederacy and
the constitutional changes of the reconstruction era opened up the legal system
to African Americans. And it all seemed so
clear at that point. Maria Mitchell had
rights in 1870 that she did not have before
when she was enslaved. And she was claiming them and
she said she was claiming them in no uncertain terms. Now she had those
rights because of passage of the reconstruction
amendments, particularly the 14th amendment which provided federal
protection of civil rights by — among other things — prohibiting states from discriminating
on the basis of race. Maria Mitchell’s words that
she was talking for her rights and would as much as
she pleased and as loud as she pleased underscored the
importance of those changes in a way that was hard to miss. So I thought I had
it all figured out. Although I’ve discovered
rarely do I have everything all figured out. And in this case, I really
didn’t have it all figured out. My initial interpretation here
obscured a much more interesting story, a story of constitutional
change that’s located in places that most of us would be
hard-pressed to find on a map, and in the context of
legal matters that most of us would consider remarkable
let alone constitutional. The key to this other story
actually lay right in front of me, although I didn’t
realize it at the time. And I mean that literally,
in the documentation of cases in local courts, cases like
the one of Maria Mitchell. So these are not the published
sources, the statutes, the appellate cases,
the legal treatises that most people associate with
law and with legal history. These are loose,
handwritten documents. Some were produced by
circuit courts which met on a regular basis
in court towns and which held juried trials. The more interesting documents,
though, like this one — the one of Maria
Mitchell’s case — were actually produced
by magistrates, many of whom had no legal
training whatsoever. And magistrates in the early
19th century set up court where they were, taking time out
of their day to hear complaints, to issue warrants, to
adjudicate minor cases, and to send more major issues
up through the legal system. And the people involved in
these cases took an active part in all of these cases. They collected evidence
themselves, they provided information, and
they observed the proceedings. And you actually see this
context in the documents. The handwriting is by
the officials themselves, pen in hand, often struggling to
keep up with the oral testimony and to capture the
words in writing. The names are of all
those people there — men and women, rich and
poor, white and black, free and enslaved, old and young
— hashing out life’s problems. And you can even hear
the people talking if you read these
cases out loud. You hear bits of French, a
little German in the accents, some Irish, definitely
some Scottish, and certainly the Creole
cadences that mark the speech of so many people
of African descent. My mama was talkin’ loud. And if you keep looking,
you can see the laws that worked in people’s lives. This part of the legal
system, focused primarily at the local level, was charged with maintaining the
public order, or — in the terminology of
the time — the peace. Keeping the peace. A body of issues
that included all but the most serious criminal
cases, as well as a broad range of issues involving
public health and welfare. The expectation was that officials would adjudicate
conflicts in the community, doing what was right, although
obviously not everyone agreed on what was right. And not everyone’s opinion
carried equal weight given the rigid inequalities
of the 19th century. This legal framework,
moreover, was not just southern. It wasn’t just people
like Maria Mitchell and Hodgkin County,
North Carolina. It characterized
the operation of law and local courts
throughout the United States and it was the legal framework
that was most familiar to most Americans in
the early 19th century. Once local cases were concluded, the documents were
then folded in thirds. They’re tied with a
ribbon, filed away, and they have been
largely forgotten. And so too was the legal context
that produced these documents. So this is the outside
of Maria Mitchell’s case and you can see the folds there. I was pointing at the computer but you can see the folds
back there and that’s where it was folded in thirds
and ribbon tied around it. So it is hard to imagine that this legal framework
maintaining public order in local communities, doing what
people there thought was right, has anything to do
with the 14th amendment and the rights it protected. But it did, as I will
explain to you today. And so in this explanation
we’re going to take a journey to places that are, frankly,
strange in the context of a talk about constitutional law —
places like Hodgkin County, North Carolina and the
venues of local magistrates. But I promise you will get back to familiar constitutional
terrain — Washington, DC; the
federal government; the US Supreme Court. But hopefully the journey
will render those places less familiar than they
are to you now. So to tell the story,
I will first talk about the legal system
in the early 19th century and the two different frameworks
that were operative then. One focused on individual rights
at the state and federal levels and the other that was focused
on maintaining the public order and doing what was right
at the local level. So we have two rights — a
right and what was right. And they both mattered
in the 19th century. Then I’ll explore what
happened after passage of the 14th amendment which brought those two
legal frameworks together and encouraged America to see
federal authority as a protector of both rights and
what was right. The result was a
rights revolution, one that predates the rights
revolution of the 20th century, the one that we associate with
the civil rights movement. And it was initiated
by ordinary Americans who transformed not just
the meaning of rights, but also the reach of federal
authority, stretching both to cover a much wider
array of issues than had been the case
before the passage of the 14th amendment. And this was not necessarily
the intention of the lawmakers who framed that amendment,
but that was the result. And the implications have
been profound and enduring, supporting expansive
expectations of what rights and federal authority can
accomplish even to this day. So when I first read
Maria Mitchell’s case, I took her assertion of
rights at face value. It seemed obvious. She was claiming rights that
other American citizens had but that had been denied
to her by state law until the federal
government interceded with the 14th amendment. But when I returned to the
case after writing a book on legal culture in
the early 19th century, her claim struck
me as really odd — or at least my interpretation
of her claim struck me as odd. It was research for that book
that made me come to terms with what local records said
about the structure of law in the first half
of the 19th century. And as I learned, people rarely
if ever invoked their rights in the context of cases at the
local level, in criminal cases like Maria Mitchell’s. And that was because local
courts did not use the framework of rights to adjudicate those
cases, or for that matter any of the matters involving
the public order which included criminal matters
and all this wide variety of issues relating
to the public order. And at one point
I went through — I had thousands of cases I went
through and looked for rights. And there were three ways
that rights were used in the context of these cases. Right as opposed to left. Right as opposed to wrong. And then right as
an intensifier. And I do Southern history,
so this will make sense, but she was right
smart, for instance. So those were how
rights are used. Most Americans — including
those outside the south — actually were very familiar
with the operation of law in this area of the legal system
because it depended on them. They played central roles
in all the proceedings. And by most Americans, I do
really mean most Americans. Even enslaved people who were
marginalized and had less say in the system still watched
it operate on a regular basis. So given that context,
Maria Mitchell in 1870 had to have known that rights
— individual rights — had little power in her case. So what did she mean when
she said she was talking for her rights? And to answer that question,
we need to consider context: law and the legal system
in the early 19th century. So today when we think of law
we tend to think of decisions of appellate courts, statutes
of legislatures at the state and the federal level. We think of white columned
court houses in capitals where law is formulated
by lawmakers and everybody else follows them. But that was not the
case in the 19th century, especially the first
half of the 19th century. Legal authority —
the legal authority of the federal government,
and this is the US capitol as a metaphor for
legal authority at the federal level — was
not what it would be later. The federal government was
actually a distant entity for most people who generally
encountered it in one of only a few ways:
military service and military pensions
(very popular), campaigns for aspirants
to federal office, and actually more commonly but more prosaically
the post office. People were more likely to
encounter the legal authority of states which had
jurisdiction over most of the actual daily
work of governance. States protected the
rights of individuals and maintained the public
order doing what was right. Both of those rights
belonged to the states. But states then delegated
significant power to counties and to municipalities,
particularly in matters involving the
maintenance of the public order, making local areas
— not states — the jurisdictions with which
most people were familiar. These were the local
venues that handled cases like Maria Mitchell’s. And these locations
made law part of the fabric of people’s lives. They convened wherever there
was sufficient space — in a house, a barn,
a mill, or a yard. That was true even for circuit
courts in the first decades of the 19th century where many
counties lacked the formal courthouses that would
later house circuit courts. So here we have the
first courthouse in Spartanburg, South Carolina. And it’s like, oh
yeah, they have a mill. Aren’t they cute and quaint? They’re in South Carolina. And we don’t really think of it as a real legal forum,
but it was. And this is what
law looked like. It was part of people’s lives. Now the distance of
most people from state and federal government
tracked their distance from the individual rights
that we now assume to be so necessary and so powerful. So in the first half of the 19th
century, individual rights — or rights for short — refer
primarily to those rights that at the time were thought to
be conferred by the government, namely civil rights,
increasingly political rights. And the reach of those
rights was limited. Civil rights dealt primarily with the matters involving
the ownership and exchange of property and access to courts to defend those property
interests. Before the 14th amendment,
the federal government dealt with the rights of individuals
only when those people or legal issues with which
they were involved were not within a state’s jurisdiction. So in the territories you
would encounter federal power. In relation to Indian
nations you would encounter federal power. In the District of Columbia,
which was not a state, you encountered federal power. And in federal cases, but there
were very few federal cases. And even the rights enumerated
in the US Constitution’s Bill of Rights remained out of
reach for most Americans because they applied
only in cases that involved federal
law, not state law. You couldn’t go into your basic
state or local court and say, I’m demanding my rights. Oops. I’m demanding my rights
in the US Constitution. They would say, ha! And they would throw your
little pointer on the floor. [Laughter] So it was. Rights, those rights,
they were not as present as they are today. Now the federal government
did not even attach rights to citizenship, and
this is something that I think is really
crucial but is forgotten. In fact, there was no clear
definition of citizenship at all in federal law in the first
half of the 19th century. When asked in 1863
during the Civil War to determine whether African
Americans could be citizens of the United States, Attorney
General Edward Bates’ answer underscored the ambiguity
of this whole question. Who is a citizen, he asked. What constitutes a citizen
of the United States? These are rhetorical
questions that he put into his little brief. He found no definition in
either federal legislation or judicial decisions,
even for Americans who were free and white. So he said, quote, 80 years
of practical enjoyment of citizenship under the
Constitution have not sufficed to teach us either the
exact meaning of the word or the constituent
elements of the things that we prize so highly. Now to the extent that there was
a link between US citizenship and rights at all, it
was at the state level where there was a concept
of state citizenship which did establish claims to
rights as defined within states. But citizenship was still
a murky concept there because rights were not
absolute and could be restricted if deemed necessary
for the public order. So states’ jurisdictions over Americans’ legal status was
actually why some states could sanction slavery and others not. It was in the state’s
power to decide whether or not they were going to
restrict people’s rights to the point where
they were enslaved. And it was not just slave states that restricted Americans’
rights. All states limited or negated
the rights of African Americans, all women, many property-less
men, and a range of other
racial, ethnic, and religious minorities
as well. No free women of any
race, married or single, could claim the full
array of civil rights or political rights
or even natural. Rights. Many men
found themselves in a similar position. Free blacks in particular
had very limited rights, even if they lived
in free states. So rights are not absolute. They’re always contingent on whether states are
willing to grant them to you. Bottom line here: authority over
rights did not mean that states in the federal government
exercised extensive authority over people’s lives. Political rhetoric
of the time — which equated rights with
freedom, with liberty, and even social equality
— would suggest otherwise, but as we all know political
rhetoric does not actually describe reality on the ground. And with some exceptions, rights accomplished
particular limited ends within the legal system, even for those Americans
who could claim them. So given this context
here, it seems odd that so many historians look
to state and federal law to understand Americans’
legal experiences in the first half
of the 19th century. In fact, if you assume that
the law was defined primarily at the state and federal
levels through the framework that looked after the
rights of individuals, you have a very partial,
very skewed view of the law before the Civil War. You would have a view of law
based on the adjudication of rights, and yet
the vast majority of Americans could not
claim those rights, which brings us back to local
legal venues which were charged with upholding the public
order and doing what was right. These were the legal
institutions and conceptions of law that actually
were most familiar to most Americans
before the Civil War. Maintaining the public order or
keeping the peace was actually about maintaining hierarchy. The peace, this concept
well-established in anglo-American law and expresses the
ideal social order, which at the time
subordinated everyone in various ways within it. So the peace was inclusive,
but only in the sense that you were forced into it. You had to be there
whether you liked it or not. Inclusiveness was not some
happy little thing here. It’s actually subordination. And it’s also not about you. It raises the interests
of the collective order over anybody’s individual
interests. In fact, keeping the peace
meant keeping everyone — from the lowest to highest —
in their appropriate places, judged by the rigid inequalities
of the early 19th century. The peace was actually
about coercion. Now while this localized system
actively subordinated people, it still incorporated a
wide range of Americans — free women, children,
enslaved people, free blacks — into its basic workings
because they were part of the social order that the
legal process was charged with overseeing. So even as a system
maintained their subordination and regulated their behavior, it relied on information
they supplied about community disorder. Women, enslaved people, free — they knew all about what was
going on in everybody’s houses. So take, for example, two cases in North Carolina
initiated by slaves. One slave complained
to a magistrate that a free black man
had been playing cards with other slaves on Sunday. Not good. Definitely not good. Another complained that that
same free black man assaulted one of those slaves
after the card game. And once [inaudible] could
be other complaints here made about the imbibing of spiritous
liquors, which often go along with card games on Sunday. Now technically these
slaves gave information because laws prohibited all
slaves from filing a complaint. But the local magistrate then
proceeded with the case based on that information and
he did so in the name of the public interest. Now of course these slaves
had their own reasons for what they did —
reasons that were distinct from the magistrate’s
likely concerns about disorder among
slaves and free blacks. Perhaps they’re actually trying
to get back their winnings from the free black
man who stole them. But as such this case
illustrates central elements and of parts of this
legal system. Different people could pursue
different ends within it, sometimes contradictory and conflicting all
at the same time. And that was possible because
the system depended upon the participation of everyone. In most legal matters,
as I’ve said, the interested parties collected
evidence, gathered witness, represented themselves. There were cases
where people were out there measuring footprints and then measuring suspects’
feet and seeing if they fit and if their gait is
proper and correct. Now the definition of interest
here is broad and varied, which should actually
not surprise anybody who grew up in a small town. And it was not unusual, then,
for witnesses with an interest to line up and come forward
and tell what they knew. So you get the repetition
of detail after detail from person after person. And the magistrates
bore this patiently, knowing that the resolution
of a legal conflict was also about repairing a rift
in the social order. Now the law in this part
of the system was capacious and uncontrolled
by professionals, thus calls for reform by many
trained lawyers in this period who sought to limit the
texts cited in court to legal documents
actually recognized as law by their states. But local courts actually
included a wide array of kinds of legal principles
and legal context. So actually they’re
relying on local custom; how things had been done
in a particular community; accepted wisdom which could
include the bible, fables, and fiction; and the wisdom of
somebody’s grandmother, perhaps. You know, the kind where she
puts her hand on her hip, she sticks her finger
in your face. Equally applicable in
these local courts. And in addition to that,
they included a wide array of legal texts as well,
including statutes and appellate law, but that was
not necessarily the overriding legal text there. And the legal framework used in
local jurisdictions then allowed for the handling of situations that would not have
had legal standing in state or federal courts. So masters, for instance, would
file charges against slaves that they could not control,
which is kind of unusual when you think about it. Not what you would expect. Wives filed charges against
husbands for domestic abuse. Children informed
on their parents. Even enslaved people tried
to mobilize local courts to address their concerns, as the two sides I
mentioned previously did. In fact, families regularly
brought their feuds to court for resolution, with wives,
husbands, parents, children, siblings, aunts, uncles,
and cousins all lining up to air their dirty laundry. And magistrates took these cases
because disorder was disorder and when it happened people
expected the court would right wrongs. Now the system was profoundly
situational, even personalized. One person’s experience did
not transfer to another person of similar status or
necessarily predict any other case’s outcome. Each jurisdiction thus produced
inconsistent rulings aimed at resolving particular matters
rather than producing a uniform, comprehensive body of law. And many saw that situation
as natural and just. It made no sense to impose
arbitrary rules created elsewhere on local people
and local contexts instead of paying attention to
the particular dynamics and knowledge in
local communities. So local people knew, for
instance, that John Smith, he always picked a
fight when he drank but he didn’t really
mean much by it. He’s a good guy. But James Black,
he’s just plain mean and he needed to
be kept in line. Those two people fighting,
they would look the same to an outsider but local people
knew it as entirely different. Or you know, Elias Carter. He’s an enslaved man, but he
needs to carry a gun to tend to his owner’s business. And Elias has a last
name, Carter, because his father
had a last name. And we don’t know why his
father had a last name. Even though slaves
don’t have last names, that’s just the way it was. So his son has a last name. But we know that. Or for instance, Susan Green. She keeps geese and she
sells them in a business and she’s a married woman. But everybody knows
they’re her property, so when they go missing
we return them. If somebody steals
them we return them. And we call them her
property even though, technically, she can’t own them. But the geese need to go back
to the person they belong to. You needed to know
all that information to maintain order,
to do what was right. And in determining what was
right, then, local legal venues and the people involved in
them played a crucial role in defining law as well as
maintaining the public order. The content of what they
were doing was central in defining the legal
order in their communities. And this brings us
back to reconstruction, to Maria Mitchell, and
to her claims for rights. When she filed assault charges
against B.D. Armstrong in 1870 after emancipation and after the
passage of the 14th amendment, she was in fact using
her new rights to access the legal system, but those rights were
actually not the ones that she was talking about. Those rights, the ones
that were unspecified but very loudly claimed, those
were about what was right. And the charges underscored
the point. She charged B.D. Armstrong
with assault, a disruption of the public order,
not actually a violation of Maria Mitchell’s rights. People pursued these cases, violations against
the public order, because they wanted public
condemnation of behavior at odds with their view of what
should be done, what was just. And in the first half
of the 19th century, people like Maria
Mitchell, though, didn’t actually have
much room or power to define the public order. The rigid hierarchies that
were being upheld as part of a just society in the early
19th century placed Maria Mitchell at the bottom
of the social ladder. They could make small
changes around the edges, but emancipation then
changed all that and opened up the prospect that people like
Maria Mitchell could use law to redefine the public order. What was right would no longer
be the preservation of slavery and racial inequality. And at the same time the 14th
amendment allowed those claims about what was right
to merge with rights and acquire more power. Before the Civil War,
claims about what was right, claims of the slaves who upset
about gaming on Sunday — that all stayed at
the local level. But the Reconstruction
amendments, particularly the 14th
amendment, changed that. These amendments did not
just affirm the rights of African Americans, the
narrow band of rights. They also made it possible for
claims about what was right to travel elsewhere in the
system, altering the meaning of that narrow band of rights in
changing people’s relationship to the federal government. What was right became rights. The two things merged
in this period. Now claims about what
was right first traveled into federal jurisdictions
through the claims of enslaved African Americans
during the Civil War. Maria Mitchell’s efforts to use the legal system are
characteristic of the actions of many formerly
enslaved people. Although contemporary
researchers and later historians have
taken such actions for granted, it is remarkable that people who have been enslaved
legally would look for redress in the very legal system that had maintained
their enslavement. But they did. Now historians usually attribute
such faith in law to the promise of that narrow band of rights. But formerly enslaved African
Americans were also acting at other deeply rooted
expectations about the law — that it should maintain
a just public order, that it should do
what was right. And the promise at the
moment, then, gave them hope that they could access the
legal system and legal authority and elaborate their
vision of what was right, of what constituted
a just society. Now those expectations explain
why enslaved African Americans began bringing their complaints to legal venues during the
Civil War, when their claims to freedom let alone
rights were still tenuous. So once behind federal lines,
African Americans sought out military officials
and military courts to adjudicate their conflicts. And they continued to do so
after a Confederate surrender. But before passage of
the 14th amendment, which gave them formally
rights, African Americans came to these venues with
rights claims but they also expected federal
officials to address the kinds of issues that would have
fallen to local courts and that had been handled
within the framework of doing what was right — so interpersonal conflicts
often involving violence and domestic issues, as well as matters involving broader
questions of social justice such as the treatment of
refugees, the payment of wages, and the reunification
of families. And in those cases, they
expected federal venues to do what was right,
not uphold their rights. Now all the various courts
under federal jurisdiction, which lacked any
established body of law to handle this diverse array of
claims, struggled to keep up. In reading the records,
the consternation of these officials is
just really palpable and you can almost see their
furrowed brows and their heads in their hands, like how
do I handle this case? I’m trying to come up
with some legal framework in which to do this. None of this issues were really
what court marshalls had ever handled before, needless to say. But African Americans persisted, pushing past these
jurisdictional boundaries in pursuit of justice. And the exercise of federal
authority in cases of this kind, then, might have been
temporary if not for passage of the Reconstruction
amendments, particularly the 14th amendment which gave the federal
government authority over states’ handling of rights, something that the federal
government did not have before. And to be sure, these powers are
limited and largely negative. The 14th amendment placed
restrictions on states, prohibiting them from
making or enforcing — and I’m quoting here — any law which shall abridge the
privileges or immunities of the citizens of the United
States or depriving any person of life, liberty, or property
without due process of law. It also prohibited the
denial to any person within its jurisdiction the
equal protection of the laws. But it did not extend rights
to African Americans — language that is often used to
describe the 14th amendment. Actually, I’ve used
that language before, even knowing what the
14th amendment did. But it’s so deeply engrained, this idea that the 14th
amendment extends rights, that it is really
deeply embedded in our habits of speech. But actually the 14th
amendment could not do that because it did not
establish a federal standard of rights let alone allow
the federal government to define rights. That negative power was
nonetheless profound, particularly in the states
of the former Confederacy. The 14th amendment forced
states to extend rights to African Americans which made
it possible for Maria Mitchell to turn B.D. Armstrong’s
assault into a legal matter. If she had still been enslaved, Maria Mitchell would have had
difficulty making the assault into that legal matter,
making it into a crime. She would have given information like the two slaves
I mentioned earlier. A local official might have
prosecuted the act as an offense against the peace,
but that was unlikely. Instead, a white official would
have been more likely to see that as an act of justified
violence of legal discipline, legally sanctioned discipline,
that masters could inflict on a recalcitrant slave. After passage of the 14th
amendment, though, Mitchell and other African
Americans could file charges because of their civil rights. Enabled by the 14th amendment, enshrined in state
constitutions, it protected them by the threat of
federal intervention. Their rights then
allowed them to act on their ideas of
what was right. And what happened in those local
courts then altered federal authority profoundly. Specifically, the 14th
amendment opened up paths for ordinary Americans’
conceptions about what was right to migrate out of local venues through that framework
of rights. Before those constitutional
changes, Americans’ claims about what was right,
they remained local. Local jurisdictions
handled each case. And what settled it ended there. And such cases never
made their way into state jurisdictions,
rarely. And never a federal
jurisdiction. And jurisdiction made
all the difference. Maria Mitchell’s case did not
migrate out of her local court but the words point to
the logic of the process that did allow other
similar claims to travel into new jurisdictions. B.D. Armstrong’s
actions were not right and they violated Maria
Mitchell’s rights. When claims about what was right
were attached to the framework of rights and placed
in the context of state and federal jurisdictions,
they acquired meanings that they did not have
in local jurisdictions. They were no longer about
the particular conflicts of the particular people. Instead they involved rights
universally applicable to others in like circumstances and
enforced by the authority of state or federal government. The framework of rights
allowed one person’s claims about what was right, then, to acquire the power
of a universal claim. They could even acquire status of constitutionally
protected rights. In one of the most dramatic
examples here is access to public venues and services
such as streetcars, railroads, restaurants, hotels, and
even government jobs — things that we take for
granted today as a civil right. But in the early 19th
century, these claims to access involved maintenance
of the public order, not rights. To the extent that questions
of access were involving rights at all, it was this nebulous
idea of social rights. There were privileges
established in context and that varied from
one community to another and that were regulated
by local areas. So vendors of public
services were required to serve the public and
were subject to regulation, but such expectations of
public regulation never guaranteed access. To the country, access to public
property — sidewalks, streets, buildings, that sort of thing
— had always been restricted, particularly for African
Americans but also for women, all in the name of
protecting the public order. So the result is a
patchwork of local ordinances and longstanding customary
practices which constrained where Americans could
go in public and how they could
act in public. But during and after the Civil
War, African Americans’ claims to new spaces in terms
of rights that the state and the federal government
should protect. And the Civil Rights Act in 1875
then explicitly acknowledged such claims as rights. Now those — the 1875 Civil
Rights Act provisions were subsequently declared
unconstitutional but ultimately cases involving
access to public space continued to cast the issues of access
in terms of civil rights. And that characterization
ultimately stuck. And in fact, we have that
characterization today. And in doing this, what was
happening is people were substituting their vision
of right by using rights. So my focus here
has thus far been on cases involving African
Americans in the states of the former Confederacy. But in ending up
here, we need to think about the larger implications. And the implications of this
era’s constitutional changes did not actually end with
African Americans, which is the common story
of the 14th amendment and the Reconstruction acts. And actually that amendment and the Reconstruction acts
altered the relationship of all Americans to rights
in the federal government. They position the federal
government as an arbiter between all Americans and their
states while also elevating the importance of rights
as the means by which Americans could
access federal power. And it did not take them long
to do so, which brings us to white women and butchers —
the first in Bradwell v. state and then butchers in the
slaughterhouse cases. Both of these cases were heard
by the Supreme Court in 1873. So Maya Bradwell in Bradwell v.
State played an influential role in Illinois legal
circles as editor of the Chicago Legal
News, the publication on which many lawyers
in this state depended to keep current with law. It was then, since she was the
legal matron of the entire state of Illinois, deeply ironic when the Illinois
state legislature — filled with lawyers who
read her publication — refused to consider her
application to the bar. Not one to be cowed, though, Bradwell challenged the
decision, making creative use of the 14th amendment. And she was also
actually using arguments that other women’s rights
activists were advocating at the time. And she admitted that
the opportunity to apply for the bar was not
in itself a right, but even so it was centrally
connected to her right to pursue her livelihood
and her property interests, which were connected to
civil rights at this time. So when the legislature refused
to consider her application, she said, they had denied
rights to her that were granted as a matter of course to
other, male, citizens. Now the US Supreme Court in
1873 rejected the first part of the argument which
was her claim that protected rights
included the right to pursue a livelihood. And in so doing, they also
evaded then the second part of her argument, her claim
that federal protection of rights extended to women. They didn’t go there at all. But still, her use of the 14th
amendment illustrates a broader transformation underway. So it is difficult to
imagine stranger allies than Maya Bradwell and
butchers in New Orleans in those slaughterhouse cases, but there are actually
very distinct parallels. The butchers here were
challenging an ordnance that regulated the
slaughtering of meat, and among other things
required licensing and a designated central
location for slaughterhouses. Actually, downstream
of the city. You can imagine upstream
slaughterhouse, not so good, right? Downstream regulation
here for obvious reasons. Now the New Orleans ordnance
here is actually not unusual. State and local governments
had traditionally regulated slaughterhouses where
butchers worked because of the obvious
health risks. But the butchers in New Orleans
had, well, a particular beef, so to speak, with
their government. And they were mostly white
men, mostly supporters of the Democratic Party, who
saw the regulation as overreach on the part of the
Republican Party who was then in control of the city. And so with the backing of their
Democratic Party’s leadership, they reached for the laws
of the Republican Party, their political opponents,
and used the 14th amendment to protect what they
saw as their right — the right, like Maya Bradwell, to pursue a livelihood
as others could. Now, both Bradwell and
butchers framed access to economic opportunities
as a right protected by the 14th amendment. And the court in 1873 rejected
the butchers’ claims just as it did Bradwell’s, upholding
states’ rights to regulate for the public good, which is
actually not such a bad thing if you think of all the
slaughterhouse stuff floating down the river. Now in the slaughterhouse case,
the court was also explicit in trying to limit the meaning
of rights in the 14th amendment, insisting that it was
designed to protect the civil and political rights of African
Americans only and that was it. You can’t use it
for anything else. It was not intended to
these more expansive uses which the butchers and others
were trying to put it to. And in both cases,
the judges sought to contain the multiplication
of rights. Now these two cases were
harbingers of arguments to come, arguments that connected
the 14th amendment to economic claims and ultimately a broader
array of rights claims. And those 14th amendment claims
often came at the expense of protecting civil and political equality
of African Americans. And yet the cases for
formerly enslaved people like Maria Mitchell — people
who were claiming access to public venues, OK, who were
claiming political rights — had a lot in common with
those of Maya Bradwell and the New Orleans butchers. They all made rights
claims appealing to federal authority either
directly or indirectly. All of these Americans expected
a lot of federal jurisdictions and they were not alone. There were a whole bunch of cases involving an amazingly
diverse array of actors in this period — grain elevator
operators, German brewers, bakers, just to name
a few of kind of the hallmark constitutional
cases of this period. And all with actually
expensive views of federal power and what it could accomplish. Now those views were
firmly embedded in the constitutional change
of the Reconstruction era that dealt with rights, but did
so in a way that tied rights to expectations that legal
venues could also right wrongs, that rights could
make the world right. And if anything, the
connection between rights and what was right grew even
stronger in popular connections of the legal order which
increasingly identified rights as the means, even the primary
means, to achieve justice. My students do this all
the time when they talk about their rights in
the context of my class. It’s like, you actually
don’t have rights here but this is the language
they use. [ Laughter ] I have a right to an A.
It’s like, hmm, not so much. So this carries its own
problems and it still does. Individual rights, even in
their most expansive form, have definite limits
when it comes to achieving social justice. The rights of one individual
do not necessarily translate into what is good for everybody. Still, the policy changes of the Reconstruction Era
allowed the aspirations of a diverse group of
Americans to move into the realm of federal law for the
first time, and once there to acquire the status as
universal legal principles. So the specific claims express
the values then of conflict, of values of particular
groups of Americans, a very diverse group
of Americans. But at the same time, while
those claims to rights and what was right was in
conflict, it is actually part of a deeply rooted,
common governing practice that is widely held by a
broad range of Americans from all parts of the
country and all walks of life. So the commonalities
there in the practice — the conflict is what we
want out of that practice. And those conflicts
were and are the point. These cases are examples of
the efforts of Americans, all kinds of Americans,
to make their view of what was right into a right. And the results then remade the
relationship between Americans in the nation state,
raising expectations about the federal
government’s role in maintaining a
just public order. Before it was the post office. Now in late 19th century,
20th century, 21st century, it was the place we look
to to do the right thing. Those expectations could
only result in conflict since there was and is no
consensus among the American people about what is right, about what constitutes
a just society. At the same time, though,
the conflicts are necessary. And they were necessary and
they still are necessary. They are about our aspirations
for what the nation can be and they’re about
our faith in the law to realize those aspirations. Rights are things the means to which we actually
have this conversation about the public order now. And that process is going
to be about conflict. There was no mythic point in
the past where we all agreed. And rights claims are always
going to be controversial and contentious because
they are also about differing conceptions
of what is right. They are at the heart of
also our political debate about what constitutes
a just society. Thank you. [ Applause ]

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