Black Civil Rights before the Civil Rights Movement | Unsung History

Summary

Highlights

• Dr. Dylan C. Penningroth unveils stories of Black legal agency from the 1800s, highlighting unsung heroes of civil rights 🚀
• The Civil Rights Act of 1866 played a crucial role in establishing legal equality for Black Americans🏛️
• White lawyers often represented Black clients, motivated by profits, showcasing complex racial dynamics in the South 💼
• Historical Black corporations, like the NAACP's Legal Defense Fund, were instrumental in civil rights advancements 🤝
• Examining past Black civil legal experiences challenges current perceptions of Black historical narratives 🔍

Key Takeaways

• Black civil rights efforts date back to the early 1800s, long before the recognized Civil Rights Movement 🚀
• The Civil Rights Act of 1866 was a landmark legislation ensuring equal contract and property rights 🏛️
• White lawyers in the South historically represented Black clients for financial gain, despite personal biases 💼
• Corporations were pivotal for Black communities, aiding in organization and advocacy long before modern movements 🤝
• Understanding early Black legal history reveals a diverse and nuanced picture of the struggle for equality 🔍

Overview

Chapters

• 00:00 - 00:30: Introduction Introduction to 'Unsung History', a podcast focusing on overlooked people and events in American history. Hosted by Kelly, each episode begins with a brief introduction followed by an expert discussion. Listeners are encouraged to subscribe and spread the word.
• 00:30 - 01:30: When did the Civil Rights Movement begin? The chapter explores the question of when the Civil Rights Movement began. It considers significant events such as December 1st, 1955, when Rosa Parks refused to give up her seat on a Montgomery, Alabama bus, and May 17th, 1954, when the Supreme Court's decision in Brown v. Board of Education declared segregation in public schools unconstitutional.
• 01:30 - 03:00: Civil Rights before the Civil War This chapter discusses the civil rights movements and significant organizations prior to the Civil War. It references the principle that "separate educational facilities are inherently unequal," implying the long-standing battle against segregation and inequality in education. It mentions the founding of the Congress of Racial Equality in 1942 in Chicago and the NAACP, described as the nation's largest and most widely recognized civil rights organization. These organizations played pivotal roles in the fight for civil rights and laid the groundwork for future advancements.
• 03:00 - 09:00: Reconstruction Amendments and Civil Rights Acts This chapter discusses the foundation of a significant civil rights movement organization on February 12, 1909, which highlights that Black Americans were advocating for civil rights even before its establishment, and, in many cases, before the Civil War itself. It points out that the federal government's commitment to ensuring these rights can be traced back to the post-Civil War era, marked by the introduction of three constitutional amendments.
• 09:00 - 13:00: Resistance and Enforcement Acts The chapter titled 'Resistance and Enforcement Acts' focuses on the Reconstruction amendments enacted by Congress and ratified by the states. These amendments were designed to protect and ensure the rights of Black Americans, particularly those who were formerly enslaved. The 13th Amendment, ratified in 1865, specifically abolished slavery and involuntary servitude in the United States.
• 13:00 - 33:00: Interview with Dr. Dylan C Penningroth The chapter includes an interview with Dr. Dylan C Penningroth who discusses legal aspects of citizenship and punishment. It references the territories accepting punishment as a consequence of crime, provided the individual has been duly convicted. Moreover, it emphasizes the significance of the 14th Amendment ratified in 1868, which granted citizenship to all persons born or naturalized in the United States, including former slaves, thereby highlighting a pivotal moment in American legal history.
• 33:00 - 34:30: Concluding Remarks The chapter discusses the implications of the 14th Amendment, which overturned the 1857 Supreme Court decision in Dred Scott v. Sanford. This decision had previously declared that Americans descended from African slaves could not be U.S. citizens. The 14th Amendment addressed issues of citizenship, Congressional apportionment, privileges and immunities, due process, and equal protection. It has been frequently referenced in Supreme Court cases.
• 34:30 - 35:30: Outro The 'Outro' chapter summarizes judicial decisions in significant court cases like Brown v. Board of Education in 1954, Roe v. Wade in 1973, and Obergefell v. Hodges in 2015, highlighting their impact on civil rights. It also references the 15th Amendment, ratified in 1870, which prohibits the denial or abridgment of the right to vote based on race or color, emphasizing its importance in protecting voting rights.

Black Civil Rights before the Civil Rights Movement | Unsung History Transcription

• 00:00 - 00:30 this is unsung history the podcast where we discuss people and events in American history that haven't always received a lot of attention I'm your host Kelly theres Pollock I'll start each episode with a brief introduction to the topic and then talk to someone who knows a lot more than I do be sure to subscribe to unsung history on your favorite podcasting app so you never miss an episode and please tell your friends family Neighbors colleagues maybe even
• 00:30 - 01:00 strangers to listen to when did the Civil Rights Movement began was it on December 1st 1955 when Rosa Parks refused to give up her seat on a Montgomery Alabama bus was it on May 17th 1954 when the Supreme Court decided in brown V Board of Education that quote
• 01:00 - 01:30 separate educational facilities are inherently unequal unquote of course neither of those moments was born in a vacuum the Congress of racial equality was founded over a decade earlier in Chicago in 1942 and the NAACP which calls itself quote the nation's largest and most widely recognized civil rights organiz ation
• 01:30 - 02:00 unquote was founded much earlier on February 12th 1909 as today's guest will show us black Americans were exercising civil rights long before even the NAACP existed in many cases even before the Civil War the federal government's Assurance of those rights dates back to the end of the Civil War after the Civil War three constitutional amendments were voted on
• 02:00 - 02:30 by Congress and ratified by the states these three amendments known collectively as the Reconstruction amendments were designed to ensure the rights of black Americans especially those who had been enslaved the 13th Amendment ratified in 1865 abolished slavery and involuntary servitude in the United States and its
• 02:30 - 03:00 territories quote accept as a punishment for Crime whereof the party shall have been duly convicted unquote the 14th Amendment ratified in 1868 granted citizenship to quote all persons born or naturalized in the United States and subject to the jurisdiction thereof unquote which included formerly enslaved African
• 03:00 - 03:30 Americans superseding the 1857 Supreme Court decision in Dread Scott V Sanford which had stated that Americans descended from African slaves could not be US citizens the 14th Amendment spoke not just to citizenship and Congressional apportionment but also to privileges and immunities due process and equal protection and it has been widely cited in Supreme Court
• 03:30 - 04:00 decisions including in such landmark cases as brown B Board of Education in 1954 Ro v Wade in 1973 and oera fell V Hodes in 2015 the 15th Amendment ratified in 1870 prohibited the federal government and the States from denying or abridging the right to vote quote on account of
• 04:00 - 04:30 race color or previous condition of servitude unquote of course it said nothing about denying the right to vote based on sex or gender it would be another 50 years until the ratification of the 19th Amendment extended the same rights to women of any race these three amendments Monumental though they were did not stand alone after the ratification of the 13th Amendment the United States Congress
• 04:30 - 05:00 passed the Civil Rights Act of 1866 a full 98 years before the more well-known Civil Rights Act of 1964 Illinois Senator Lyman Trumble introduced The Bill Early in 1866 the First Federal Civil Rights bill in United States history after the House and Senate passed it President Andrew Johnson
• 05:00 - 05:30 vetoed arguing that the safeguards established for African-Americans in the ACT quote go indefinitely Beyond any that the general government has ever provided for the white race unquote and that it would quote sap and destroy our federative system of limited power and break down the barriers which preserve the rights of the states unquote Congress disagreed and overrode the veto
• 05:30 - 06:00 the Civil Rights outlined in the ACT were not the political or social rights that the later Civil Rights Movement would agitate for instead the 1866 act granted to nearly all people born in the United States citizenship and said that they quote shall have the same right in every state and territory in the United States to make and enforce contracts to sue be
• 06:00 - 06:30 parties and give evidence to inherit purchase lease sell hold and convey real and personal property and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by White Citizens unquote prior to 1866 many black Americans had already enjoyed these legal rights but the act ensured that they extended
• 06:30 - 07:00 to everyone and provided enforcement mechanisms some of the other Provisions in the 1866 act would later become the template for the 14th Amendment Andrew Johnson wasn't the only person opposed to the 1866 act and as the 14th and 15th amendments extended rights to African-Americans some white Americans especially in the southern states fought
• 07:00 - 07:30 back in particular members of the Klux Clan or KKK violently prevented or tried to prevent black Americans from voting or running for office in response in 1871 Congress passed another civil rights act this one signed into law by President ulyses S Grant this was the third Enforcement Act
• 07:30 - 08:00 passed in two years by Congress and also became known as the KKK act the 1871 act empowered the president to use armed forces and even to suspend habus Corpus if necessary to protect the civil rights of African-Americans supporters of the ACT argued that enforcement was necessary to ensure the 14th amendments promised to
• 08:00 - 08:30 equal protection under the law part of the 1871 Act was declared unconstitutional by the Supreme Court in the 1883 decision in United States V Harris which argued that the 14th Amendment gave congress the authority to enforce only acts of the states not acts of individuals other parts of the law still stood though and were Incorporated into United States code in section 1983 and
• 08:30 - 09:00 1985 reconstruction ended with the compromise of 1877 and without Federal enforcement black Americans especially in the South were often forcibly kept from exercising their political rights throughout the Jim Crow era even while those rights were denied however black Americans Contin contined to make and enforce
• 09:00 - 09:30 contracts to sue be parties and give evidence to inherit purchase lease sell hold and convey real and personal property joining me in this episode is Dr Dylan C penningroth professor of Law and history and Associate Dean in the program in Juris prudence and social policy at the University of California Berkeley
• 09:30 - 10:00 and author of before the movement the hidden history of black civil [Music] rights hi Dyan thanks so much for speaking with me today thank you for having me I would like to start by asking a a little bit about the
• 10:00 - 10:30 inspiration for the book and your family connection to this this research that you embarked on it's it's something that has stuck with me for a long time I think all of us have a personal connection to our work in one way or another mine was probably family stories that I heard over the years at cookouts and family reunions and so forth but the specific thing that kind of launched me on this journey was a a cassette tape that my uncle Craig Baskerville recorded
• 10:30 - 11:00 in 1976 of his great uncle talking about his father Jackson hul who was a slave in Cumberland County Virginia and in 1865 Jackson hul had a boat and the Confederate Army was running through the woods after they lost the battle of Richmond and they came to Jackson hulham standing on the banks of the aomax river and he fed them across the river and then when they got to the other side side they paid him you
• 11:00 - 11:30 know my uncle Thomas hul says all this on the tape to my Uncle Craig and I had always heard the story and thought to myself that's kind of strange um because it sounds like uh these soldiers were treating an enslaved man as if he had the right to make contracts and the right to own property so I wanted to know more about that world and that's kind of what launched me on this journey and it was a long journey right you spent quite a long time researching
• 11:30 - 12:00 this book and it's obvious why as you're reading it because it's such a lot of work to find these cases to talk about figure out as you say which ones are actually involved black people and which ones don't so I wonder if you could talk some about that research process what you had to do and you cover quite a lot of history in this book so what it meant to be looking into all of this synthesizing it figuring out how to put the story together
• 12:00 - 12:30 right so just as you say the book is about how black people used law talked about law and thought about law over a very long period of time it's called before the movement and what it really covers is the period from the early 1800s say 1830s through the 1970s and the goal of the book is to look at black people's legal lives and use that as a window onto black life
• 12:30 - 13:00 itself so it's really at bottom a book about African-American history where black people are at the center in order to get at that story I looked at a whole lot of different types of sources so some of them were legal sources some of them were things like Diaries church sermons but the main one that I looked at was the records of local County Courts and these courts
• 13:00 - 13:30 exist all over the United States they're the place where you know when you buy a house your mortgage title company will go or your lawyer will go and record a title uh to the house um the recorded deed that becomes part of the chain of title it's where contracts are recorded it's where all sorts of things uh happen that matter to people in their daily lives all of those things that I just described involve civil rights so
• 13:30 - 14:00 property law contract law those are civil rights as is the right to go to court and so I thought to myself well if I want to write a book about African-Americans use of law I might look at the US Supreme Court but since so many African-Americans were you know economically not that well off probably the only kinds of cases that I'm going to find if I go there are famous
• 14:00 - 14:30 cases so I wanted to find cases that weren't famous so I started going to County cour houses I went to Virginia North Carolina New Jersey Mississippi and Illinois and Washington DC and each time I went I wanted to find cases involving black people so I would go into the courthouse uh I'd talk to the Circuit Clerk or the deputy clerk they're all usually very nice people they're not
• 14:30 - 15:00 archists they're not there to serve me historical records they're basically there to process traffic tickets and help title Searchers and so I would go in I'd explain what I was doing and usually they would say that's fine you can go in the back and what you'd find in the back is this big wall full of heavy Ledger books these dockets and on the dockets are the names of all the cases that the court has ever heard going back as far as the court exists what the records don't tell you
• 15:00 - 15:30 is what race the people are they'll tell you who the names of the people involved sometimes they'll tell you what the case was about they'll give you the filings you know they'll say there was a motion for this a motion for that uh the dates on which those things happen but they don't Mark anything as colored or white or anything else and so this is a real problem if you want to write a book about African-American history and you can't tell what race the people are in
• 15:30 - 16:00 your main source and so what I did is I started looking up the names on ancestry.com and so most of us know ancestry as the place where you can swab your cheeks send it in and find out that you're you know 15% Irish or something like that but the main thing that they have always done is they have made the United States census and other censuses around the world digitized and
• 16:00 - 16:30 searchable by name and so that's what me and my research assistants did we copied down by the end 14,000 cases and uh we looked up something like 28,000 names and we wrote down the information that we could find on the censes for each one of those names and what we found um we ended up finding matches for some about half of the
• 16:30 - 17:00 14,000 and of those we could find 1,500 that involved African-Americans either as plaintiffs or respondents and so that gave me the the foundation to go back to the courthouse and pull the records and read the testimony of what was happening happening in each one of these cases and that testimony is frankly amazing yeah it's it's incredible you talk in the book about how different aspects of the law different
• 17:00 - 17:30 areas of the law maybe treat race differently it's easier in some of them to be overtly white supremacist than it is in others I wonder you know especially since I'm sure a lot of people listening are not lawyers if you could talk through a little bit like what those different areas of law are and and maybe even a little bit why they are so different in the way that they might change or not change or time that's a great question so you know
• 17:30 - 18:00 just as you said there are lots of different areas of law there's criminal law there's constitutional law there's contract law property law if you go to law school that's how things are organized before the Civil War many different areas of law had specific provisions and even whole sections that basically were marked off by race so you know there there were various laws
• 18:00 - 18:30 within the law of property that only applied to enslaved people and there were laws within the criminal law that only implied to enslave people and people of color Congress after the Civil War passes the Civil Rights Act of 1866 and then bolsters that with the 14th amendment's equal protection clause and those two acts of Congress their National laws they do one very important thing and that is is they bar the States
• 18:30 - 19:00 from discriminating on the basis of race in certain areas of law and the areas of law that the Civil Rights Act of 1866 specifically singles out as being a place where the states can't discriminate by race are contract property and the right to sue and be sued that essentially the right to go to court and so what that means is this that the states by and large
• 19:00 - 19:30 stop making separate laws for black people in those areas of law and then they begin allowing black people to approach the courts much more than they had been doing before and so what that winds up producing is this world where you know you can't get on a bus next to a white person you can't vote right the states are free to disc discriminate in the area of voting you can't practice law
• 19:30 - 20:00 they're free to discriminate against you know lawyers practicing on the basis of race and sex for that matter but it's very hard for them to write an explicit law that says black people can't own property and it's very hard for them to write a law that says black people are going to be treated a certain way that whites aren't treated in contract law and so white people in order for them to get through their daily lives
• 20:00 - 20:30 actually have to recognize black rights like if they want to sign contracts economically speaking they need black people to work and if they can't whip them into the fields they need to do it through contract law so they actually need to recognize black civil rights they need to respect black civil rights because their whole economy depends upon it so that is an Insight that some of your listeners May ra recognize that Derek Bell one of the founders of
• 20:30 - 21:00 critical race Theory came up with he called it interest convergence he didn't talk about it in the context that I was talking about it he was thinking of desegregation but it's the same thing and I borrowed that insight to figure out why would white people let black people own property why wouldn't they just go and take it why would they make Bargains with black people why would they respect black people's contracts and I think it's because as Derek Bell said it was in white people's interests to do so and white lawyers even that was
• 21:00 - 21:30 one of the things that I I found really surprising was as you're discussing in some cases these white lawyers especially in the South who are themselves pretty racist but are perfectly willing to take on black people as clients to fight on their behalf could you talk through that a little bit cuz it's such an interesting tension it's it's fascinating to me there was a guy in Mississippi Clarksdale Mississippi named John W
• 21:30 - 22:00 coutrier he was one of the delegates to the 1890 Constitutional Convention from Mississippi that wound up disfranchising all the black people in Mississippi once another white man accused him of having black ancestry and cucher went out and shot that man so this is not a man who's really you know he's not big on black rights
• 22:00 - 22:30 but he represents black clients in property disputes in accident cases in contract disputes he helps them probate Wills he has a significant number of black people as his clients and I think it's basically pretty simple he made money doing it and in fact enough white lawyers made money representing black clients that that became one of the big
• 22:30 - 23:00 motivating factors uh behind their push to drive black lawyers out of the legal profession in the 1890s you know you think about why would white lawyers do that and it's easy to assume that they just sort of instinctively had a desire to make lawyering a white man's business and that that doesn't really explain it it was about money yeah it's fascinating you mentioned earlier civil
• 23:00 - 23:30 rights and that the kinds of things that we're talking about that people are are not considering civil rights today not the way people think about it but that these are civil rights and so I wonder if you could talk some about the the way that that term civil rights sort of evolves in meaning and the way that people think about it maybe not meaning exactly but the sort of way that people popularly conceptualize what rights are yeah so that that ends up being a really
• 23:30 - 24:00 fascinating Story the term civil rights doesn't really get defined in National terms as I said until 1866 before the Civil War it has a number of different meanings they generally sort of cohere around this sphere that I described earlier about the right to go to court the right to own property the right to make contracts some people think it also
• 24:00 - 24:30 includes the right to move from state to state so Mobility personal Liberty is often considered part of civil rights some people also think it includes political rights like holding office and voting after say you know the 1850s that idea that civil rights includes the right to vote falls out in part because people like Abraham Lincoln realize that they they can win elections
• 24:30 - 25:00 by defining civil rights in this narrow way that doesn't include the right to vote or hold office but only includes contract property and standing that's what enables Lincoln to win the White House in 1860 and it's the meaning that comes through American history from the 1860s until the early 1900s when a number of activists and and AD
• 25:00 - 25:30 you know cause lawyers as well as popular culture begin to resurrect these meanings of civil rights that go far beyond that so activists have are they're pushing all along to make it mean something more like protection from discrimination right they never give up on that broader Vision but the courts and popular white culture generally still keep that narrow definition for a long time but what
• 25:30 - 26:00 happens starting in the 1920s and 30s is that black lawyers and other cause lawyers begin pushing to make it mean something more so there are labor lawyers who want it to mean something like economic rights like the right to a job or the right to a decent living there are other people who want it to mean something like the right to go to school on an equal basis with white children or the right to go to the same schools
• 26:00 - 26:30 as white children those there are people pushing to make those part of what is understood as civil rights and in large part that's kind of what the Civil Rights Movement is about it's not just fighting for civil rights it's fighting to Define what civil rights are and the definition that they end up on which is generally about this principle of non-discrimination and nons
• 26:30 - 27:00 subordination on the basis of race that vision is both powerful and narrower than visions that had been kicking around off and on for the previous 150 years and so that that's the vision that we sort of have today but it's different than the ones that people that our ancestors actually held in the past they were much more variable and complicated than we realized so I want to ask about
• 27:00 - 27:30 incorporation and I think reading your book helped me finally understand something so I live very near the national headquarters of Alpha Kappa Alpha sorority and on the sign right out front it says Alpac Kappa ala comma Incorporated and that has puzzled me for a long time because I thought this isn't like a for-profit corporation what's going on here so could you talk some about Corporation what that what that actually means and how a lot of black people people used that and used that
• 27:30 - 28:00 type of law that that realm of law to to really make progress in some ways it's a great question so a corporation broadly speaking is a legal tool it's a tool that empowers a group of people to pull their energies and resources in support of a common goal at its at its most basic level that that's what a corporation is and black
• 28:00 - 28:30 people after the Civil War and even before the Civil War formed corporations some of the earliest corporations that any Americans formed were black corporations they were black churches bethl AME in Philadelphia Incorporated uh 1796 Sally Gordon at University of Pennsylvania has shown this and after the Civil War you see this blossoming of black people incorporating
• 28:30 - 29:00 stuff right and you know some of what they incorporate is for-profit businesses so North Carolina Mutual Life Insurance company but some of what they incorporate are fraternal organizations and so those include sororities like alphaa alpha or the the fraternities that my cousins and uncles were part of a Kappa alpas Sai the omegas those are all Incorporated which means that
• 29:00 - 29:30 somebody went filed a set of papers with the state you know this could be Washington DC could be the state of Alabama and then they received a charter from the state that empowered them to do certain things so they can collect dues they can have a president and a governing board that can make decisions and act on behalf of all the members of the corporation and the members can only object at certain c times and in certain places and
• 29:30 - 30:00 so black people found these corporations because it enables them to do things in this world some of the most famous corporations that we recognize as players in the Civil Rights Movement Like the naacp's legal defense fund that argues the Brown versus Board of Education case that's a a nonprofit Membership Corporation the uh Southern Christian leadership conference that Martin Luther King is the head of that's also a corporation so was Dexter Avenue Baptist
• 30:00 - 30:30 Church the church that he preached at that was a corporation and so was the Montgomery Improvement Association uh which is the organization that spearheaded the Montgomery Bus Boycott uh the one that Rosa Parks so famously initiated with her brave stand on the bus all of these are corporations the Black Panther Party was incorporated black people are corporations for a very simple reason which is that it enables
• 30:30 - 31:00 them to get stuff done I found it interesting in the the discussion of religion though so you just mentioned that a lot of these churches are Incorporated but that sometimes you know that helps the the organization perhaps it doesn't always help the membership because sometimes the way things are structured is is more of a top down wonder if you could talk through that a little bit because you know especially you discussed Martin Luther King Jr Jun and the ways that we think of him as this Bastion of
• 31:00 - 31:30 democracy and you know and really maybe that wasn't always the case in in his dealings in certain areas because of the way things were Incorporated no that's right whenever you form a corporation you are using law you're using the powers delegated to you by the state to channel resources in a certain direction to put them into certain people's hands and take them out of other people's hands one of the things that incorporation does
• 31:30 - 32:00 especially in churches is it takes certain kinds of powers such as the right to property and the right to governance and it puts them in the hands of leaders but it also makes those leaders responsive in some way to the members if the members choose to appeal to the state so members can in certain limited circumstances go to a judge the local
• 32:00 - 32:30 County courthouse and complain about what their Pastor or their corporate leader is doing and then a judge will come in and decide whether the judge has the power to decide this question when it comes to religious corporations judges over the years have tied their own hands and they do that for a simple reason it's that they felt that they they as secular judges are not the right people to
• 32:30 - 33:00 decide spiritual matters so anything that has to do with the spirit with theology with theological Doctrine the courts typically take a hands-off stance they leave it to the highest governing Authority in the church or the mosque or the synagogue what they say is the law within that mosque but that sets up a a a little bit of a a a problematic
• 33:00 - 33:30 Dynamic potentially which is that the leaders of churches and mosques and synagogues are much less accountable to the members than the members sometimes might want and in black churches in particular this also means that there's a a real gender dynamic because in the church that I grew up in and in most black churches down to this day most leadership positions are held by men and
• 33:30 - 34:00 most of the members of the churches are women so the members are the ones who are putting in most of the money they're the ones who are doing the Outreach they're taking meals to the sick and shut in they're going to the hospitals most of those members who are doing that work are women but they don't have the offices in the churches that uh control the property and it's even more complicated than that because remember I
• 34:00 - 34:30 said a bit ago that when there's a dispute that someone brings to a court and says you know I've been mistreated by the church the court will typically look to the highest governing Authority and that often means the minister and the Board of Trustees usually a bunch of dudes and so then you have this Dynamic where men can rule inside the church because of their leadership positions but even when women go and
• 34:30 - 35:00 appeal to a secular judge outside the church they may still run into male Authority because the judge will kick it back and look first and foremost to what male leaders have said or are saying about what church law is on a given subject one of the things you start talking about toward the end of the book book is the way that the legal profession trains new lawyers and the
• 35:00 - 35:30 way that for the past 50 plus years the law cases that people are reading in law schools actually do involve cases that have black litigant in them and yet that is kind of hidden could you talk a little bit about that and why it's so important to think about revising those law books and and really actually demonstrating to these budding
• 35:30 - 36:00 lawyers what the race of the people involved in the cases is it's it's a really important question and I should preface that my answer by saying that American law schools have been wrestling for quite some time with the question of race in their curriculum going back to the 1970s um late 1960s early 1970s when American law schools first began to
• 36:00 - 36:30 admit black students into law school they realized that well you know they didn't have very many black law professors and they looked at their case books and they realized that there were a few cases in the case books that talked about race or talked about black people but those cases typically did so in a very derogatory way they would refer to black people as boys or as slaves there were literally cases
• 36:30 - 37:00 involving enslaved property in the case books that American law students were reading uh to become trained as lawyers and so the case book authors and the law professors began to cast about for ways to rethink the case books and basically what they did is that they took out the few cases that explicitly referred to black people and or they
• 37:00 - 37:30 erased references to race in those cases and they kind of called it a day they didn't go back and rethink the structure of the law school curriculum or even the way that the case books were built so I come along and I'm doing this big project where I'm thinking about the presence of black people in local cour houses and I kind of thought well let me look and see whether there are any black people in these case books that seem to
• 37:30 - 38:00 be all white and lo and behold there are some cases involving black people already in the case books it's just that they're not marked that way so the one case that everybody reads that involves a black person and the students know that it's a black person is Williams versus Walker Thomas Furniture that's a case about unconscionability a black woman who gets sold a furniture set and some and and and appliances on time she's buying on
• 38:00 - 38:30 the installment plan and there's this really punitive clause in the purchase contract that basically means that if she misses any payments she forfeits the whole thing she forfeits the property and her payments and this is basically predatory lending and so this case is still in every case book in in in America and although it doesn't actually say that she's black it it talks about thing it says that she's on welfare it
• 38:30 - 39:00 says she has seven children that she lives in Washington DC in an urban setting and everybody knows that she's black and in fact she was black but that's the only case that students get taught where they know that the person is black but there are other cases so one case that that they read is about contract formation so there's this doctrine that says
• 39:00 - 39:30 that past consideration is no consideration at all in forming a contract so you can't sort of go to court and say that I made a contract with somebody and the the quidd in the quid pro quo was something that person did for me before I made the agreement and the case one of the cases that gets used to teach this Doctrine is a case called Harrington versus Taylor
• 39:30 - 40:00 1945 from North Carolina and the case books teach it as a case where there's a domestic dispute one person gets injured her hand is maimed and she Sues and the court holds that the agreement she made with the man whose life she saved by sticking out her hand and blocking the axe from hurting him killing him the agreement that she made with him orally is not valid it turns out that all of the
• 40:00 - 40:30 people in that case were black and that the case was not only about a contract between black people it was about domestic violence where a black woman had been attacked by her husband repeatedly was dropped off at her neighbor's house who was also black because the police in that little town of Hamlet North Carolina didn't take her
• 40:30 - 41:00 seriously essentially she was using contract law to replace a criminal justice system that did not punish black men for the things they did to black women and so that's a context that's a case that I think needs to be told differently in the contracts case book not because not just because it allows black students to see ourselves in the casebook but because it it will allow all students to understand the doctrine of past consideration better yeah I want
• 41:00 - 41:30 to ask you a different kind of question if that's okay in your acknowledgements you say that you uh donated a kidney and that you've been told that it's important to talk about that more I wonder if you would want to talk about that now oh I appreciate the opportunity to do that yeah I did that back in um what was it 2021 I think it was the middle of the pandemic I had uh have a family member who had diabetes and I had
• 41:30 - 42:00 always wanted to donate to her to my sister for years and she always had said you know she put me off but it became time to do that and so I was very grateful very blessed that uh when I took the tests uh Tampa General Hospital I wasn't a match but I was able to donate I was um suitable for candidate for donation you know it's kind of you
• 42:00 - 42:30 know a battery of tests takes about a day day and a half you go home and then you wait for a call for a a match from another donor they can actually you don't need to be a perfect match with the person you want to donate to you can actually pair with another couple of people or you can donate in a chain where they use these superc computers to kind of match you up with to 20 or even 40 different people in our case it was
• 42:30 - 43:00 just us and two other people and so you know when we got the call we were ready and so we scheduled this I flew to Florida and had the operation and my sister had the operation the next morning everything went fine I you know ate a lot of ice cream over the next several days I was home and back at work within a couple of weeks and I was I like to run I'm a runner and so I was back to running within I'd say about
• 43:00 - 43:30 four to six weeks uh and fully recovered running wind Sprints and Hill training within a couple of months so I it it was an experience that so precious to me and I'm grateful to all the the people who made that possible and I highly encourage all of your listeners to consider it it it doesn't necessarily need to cost any money there are programs to defray the cost all it takes is you know a willing
• 43:30 - 44:00 donor that's incredible thanks for sharing that so we're not going to be able to talk about everything in the book of course it's a really detailed packed book so wonder if you could tell listeners how to get a copy of the book anywhere books are sold you can go to ww norton.com and they have a number of links uh where you can buy books or you can Google my name it's an unusual name Dylan penningroth and somewhere in there you will find links to purchase a copy
• 44:00 - 44:30 of before the movement is there anything else you wanted to make sure we talk about I guess maybe the one thing that might be worth mentioning is I guess some listeners might be wondering what the takeaways might be or what lessons all of this might hold for today and I guess I'd point to a couple of things one is just that it's important for us to see the diversity of black life I think that it's it's something we all know
• 44:30 - 45:00 that American history is in large part a story of racial oppression and that is absolutely true and it has created a commonality of experience among African-Americans but that shouldn't detract from the the basic Humanity of African-Americans and part of that humanity is the differences among African-Americans including differences of opinion differences of background sometimes
• 45:00 - 45:30 black people argued with each other sometimes we were Petty with each other uh we joked with each other all sorts of things that don't necessarily conform to a narrative that I think has tended to dominate the way we think about African-American history which is that it's a struggle for Freedom so that's the first thing I'd say and then the second thing I'd say is more in the form of a question we often think of African Americans as being alienated from law before the Civil Rights Movement and
• 45:30 - 46:00 perhaps even today but especially if we think of a black person in 1900 the last place that we would imagine that person wanting to be would be in a local courthouse in Mississippi and yet we found people there me and my team found black people in southern cour houses using their rights talking about law in all sorts of creative ways and it makes one wonder why if
• 46:00 - 46:30 African-Americans were so alienated from law before the Civil Rights Movement why did they put their faith in law when the activists came to the South why did they think of law as something that might do right from them I give one answer in the book but I think that that question is something that we really As Americans should be asking ourselves again and again because we now have one of our major political parties and its leader who are openly
• 46:30 - 47:00 questioning the rule of law well this was such a a perfect fit I think for this podcast I've said before that one of my goals when starting was to know like what did people eat for lunch in Kansas in 1900 and this is exactly that that sort of story what were people doing on the ground uh not the famous people but the everyday people so I'm so thrilled to have read the book and it's been just great talking with you thank you so much Dylan thank you I really appreciate
• 47:00 - 47:30 [Music] it thanks for listening to unsung history
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