Race, Law and Society

Ian Haney López

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351907002
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Soziologie

Race, Law and Society draws together some of the very best writing on race and racism from the law and society tradition, yet it is not intended to merely reprint the greatest hits of the past. Instead, from its introduction to its selection of articles, this anthology is designed as a 'how-to manual', a guide for scholars and students seeking templates for their own work in this important but also tricky area. Race, Law and Society pulls together leading exemplars of the sorts of social science scholarship on race, society and law that will be essential to racial progress as the world begins to travel the twenty-first century.

Part I
Beyond Doctrine: Race and Rights

[1]
Law, Society, Identity, and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875–1905

Kenneth W. Mack

This article reexamines the well-known debate over the origins of de jure segregation in the American South, which began in 1955 with the publication of C. Vann Woodward’s The Strange Career of Jim Crow. Arguing that the debate over Woodward’s thesis implicates familiar but outmoded ways of looking at sociolegal change and Southern society, the article proposes a reorientation of this debate using theoretical perspectives taken from recent work by legal historians, critical race theorists, and historians of race, class, and gender. This article examines the advent of railroad segregation in Tennessee (the state that enacted the nations first railroad segregation statute) in order to sketch out these themes, arguing that de jure segregation was brought about by a dialectic between legal, social, and identity-based phenomena. This dialectic did not die out with the coming of de jure segregation; rather it continued into the modern era.

On September 15, 1883, a young Ida B. Wells boarded a train from Memphis, Tennessee, to the nearby town of Woodstock, where she taught school, and entered an ongoing debate over law, society, and identity in late-nineteenth-century Tennessee. Wells, the future civil rights crusader, was concerned about railroad companies’ recent attempts to segregate passengers by race, and about drinking and smoking on the train. Taking her seat in the nonsmoking rear coach, which according to the railroad, was reserved for “white ladies and gentlemen,” she refused the conductor’s request that she move to another car. The conductor, aided by two other men, physically ejected her from the car, in the process tearing her dress but suffering a serious bite wound inflicted by Wells in return. Ida Wells later sued the railroad for this incident and a subsequent ejection, ultimately losing in the state supreme court and incurring several hundred dollars in court costs in the process¹ (Chesapeake, O. & S.W. R.R. v. Wells 1885a, 1885b, 1887; Duster 1970). Disappointed with the outcome of her suit, Wells confided to her diary: “I have firmly believed all along that the law was on our side and would, when we appealed to it, give us justice” (DeCosta-Willis 1995, 141). Wells’s views of the importance of the law in settling questions of identity, place, and race mirrored those of her fellow Tennesseans. By the 1870s and 1880s, the law of common carriers had emerged as a crucial battleground in the working out of the social, political, and economic order in the New South.

LAW, SOCIETY, AND THE STRANGE CAREER OF JIM CROW

The law of common carriers is an important element in C. Vann Woodward’s much-debated thesis, set out in The Strange Career of Jim Crow (1974), concerning the establishment of racial segregation in late-nineteenth-century Southern life. Woodward argued that the period was characterized by experimentation in Southern race relations, and that rigid and widespread racial segregation did not emerge until the turn of the century, when Southern states enacted a wave of segregation laws.² Woodward’s critics contended that many aspects of racial segregation, even if not always enshrined in positive law, were put in place shortly after the Civil War if not before.³ Legal scholars weighed in on the side of the critics, arguing that judicial decisions upholding separate-but-equal had endorsed Jim Crow practices long before Southern states began enacting segregation statutes in the late 1880s and 1890s (Riegel 1984; Lofgren 1987, 116–47). According to Woodward’s critics, the late-nineteenth-century push for pervasive de jure segregation was merely a novel manifestation of long-standing trends in Southern life.

If Woodward, steeped in the lessons of progressive historiography, viewed the story of the late-nineteenth-century South to be one of conflict between men of different classes, many of his critics saw racial division rather than class conflict as the eternal verity of Southern society.⁴ Recent scholarship has sought to reorient the contours of the Woodward debate, interrogating the concepts of race and class themselves. Much of this newer scholarship has used the categories of gender and sexuality to break race and class down into their component parts, and in turn, used race and class to break down these categories.⁵ Newer scholars have added gender and sexuality to insights taken from both Woodward and his critics. For example, they argue that the most-cited rationale for racial segregation—the need to reduce contact between black men and white women—drew on racial anxieties with long-standing roots in Southern culture, as well as race, gender, and class conflicts of more recent origin. White supremacy, according to this scholarship, was a means of containing and disciplining these conflicts and hiding them behind a facade of white racial unity (Edwards 1997; Hodes 1997; Gilmore 1996; Bardaglio 1995; Somerville 1995; Greenwood 1994; MacLean 1994; Painter 1988; Hall 1983, 1979).

Similarly, recent scholarship has examined black responses to the hardening of white racial attitudes in the Jim Crow South, and in the country as a whole. Examining issues such as class and gender divisions in black communities, the emergence of uplift ideology, and alternate avenues for black politics, historians have described how African Americans constructed new identities for themselves in a society that seemed bent on denying their citizenship. This scholarship serves as a curative for the Woodward thesis’s disproportionate focus on white attitudes toward blacks rather than black responses to segregation (Edwards 1997; Hunter 1997; Dale 1997; Bates 1997; Gaines 1997, 1996; Gilmore 1996; Brown 1994; Greenwood 1994; Kelley 1994; Higginbotham 1993).

Recent legal scholarship has also addressed an issue that occupied center stage in the Woodward debate—the role of law in American society. Writing in the shadow of Brown v. Board of Education, Woodward argued that newly enacted segregation laws contributed significantly to a lessening of interracial social contact in the turn-of-the-century South (thus implying that Brown and subsequent legal initiatives could change things for the better in the modern South). Woodward’s critics, writing at a time of greater pessimism about the efficacy of law in changing racial attitudes, argued that the coming of de jure segregation merely ratified what had been put into practice long before (Woodward 1974, 102–9; 1986, 96; Cell 1982, 91, 94; Rabinowitz 1988, 849; 1976, 349; Williamson 1984, 253). This disagreement over the efficacy of law is a form of a familiar law-and-society debate that current legal scholarship has sought to reorient.

Instead of viewing law as either a cause or a product of social change, recent work in legal history and critical race theory has sketched the complex and often contradictory ways that laws and legal doctrine interact with race, gender, and class identity. Legal historians have analyzed the ways that both litigants and nonlitigants used laws and legal categories to press for social change, but at the same time were often imprisoned by the identities that those categories constructed for them (Hartog 1997, 1987; Dale 1997; Gordon 1996; Klarman 1994; Tomlins 1993; Forbath 1991; Clark 1990; Forbath, Hartog, and Minow 1985).⁶ Critical race theorists have argued that racially neutral laws and legal doctrines often perpetuate race and gender privilege, and that racial identity itself can be a creation of law.⁷

The above scholarship suggests that a central problem that occupied Woodward and his critics—the emergence of de jure segregation in public conveyances—should be revisited, albeit from differing perspectives than those that drove the Woodward debate. Rather than focusing on the primacy of race or class, or the temporal ordering of legal and social change, the analysis below describes how new sociolegal arrangements in an important New South community emerged through the interplay of law, social change, and identity formation. De jure and de facto race segregation emerged in fits and starts as various groups of Tennesseans made strategic use of legal doctrine and social structures to argue for their asserted place in the polity. Tennesseans, however could not keep their arguments within the bounds they set; an argument about race could quickly become one about class or gender, or vice versa. They as often found themselves constrained by categories of law and identity as liberated by them. Sociolegal change in the New South occurred through a dialectical process, as it does in our own time.⁸

RAILROAD TRAVEL AND IDENTITY IN LATE NINETEENTH-CENTURY TENNESSEE

In the 1870s and 1880s, railroad travel complicated Southern notions of identity. In the antebellum period, when white men had confidently assumed that they represented the interests of their dependents—slaves, women, and children—in public life, travelers sometimes reported seeing a surprising degree of interracial intimacy on the trains (White 1978, 14–15, 462–63). Such easy confidence in social hierarchies could not be presumed in the postbellum period, when whites were forced to share the rails with newly emancipated black citizens. While in certain areas of race relations— marriage and schooling, for instance—white Southerners responded quickly to black emancipation by introducing de facto and de jure separation of the races, strict racial segregation of railroad cars was not imposed until the 1890s.⁹ Railroad cars were a relatively unfamiliar mode of travel for many Southerners until the 1870s and 1880s, when railroad companies began a massive program of expansion and consolidation in the region. Railroads, as both metaphor and reality, were markers of the economic changes overtaking the New South. A railroad station could quickly transform a backwater town into a thriving center of commerce, complete with new classes of citizens, both black and white, men and women, riding the rails on their own behalf (Stover 1955, 25, 61, 190–93; Ayers 1992, 9–13, 136–46; Thomas 1995, 1–17). Ida B. Wells’s 1883 trip, for instance, was a product of her membership in Tennessee’s newly formed black middle class: she needed to ride to Woodstock, where she had obtained a teaching job. In the postbellum era, Southerners might encounter strangers aboard the trains without fixed rules of deference and courtesy. It would take several decades to fashion new rules, and refashion old ones, to determine which passengers would ride where on the trains.

Tennesseans, like their fellow New Southerners, struggled to map the race, gender, and class contours of the new social space that railroad cars presented. Tennessee stood at an important crossroads in the Southern rail transit network, with several of the region’s largest railroad networks passing through its territory. Like those of other Southern states in the period, Tennessee’s cities burgeoned with African Americans who moved to town in the postwar period and encountered whites in public spaces like restaurants, theaters, and railroad cars. The state legislature enacted the nation’s first, although ambiguous, railroad segregation law in 1881, inaugurating a new issue—de jure railroad segregation—that Southerners would grapple with through the end of the century (Stover 1955, 61, 190–202; Cartwright 1976; Tenn. Acts 1881, chap. 155, § 1).¹⁰

Like other nineteenth-century Americans, Tennesseans first responded to the social spaces that railroad travel created by reorganizing them into the familiar world of patriarchy, where middle-class white women, when they entered the public sphere, remained under the protection of white men. In 1870...