The Rights of American Slaves

There’s a traditional narrative about the history of Black people and the law. It describes how slaves were entirely shut out of the legal system, disenfranchised and bereft of even a modicum of legal know-how or protection.

The UC Berkeley professor Dylan C. Penningroth upends this narrative in his book Before the Movement: The Hidden History of Black Civil Rights, which traces the forgotten history of how slaves used the law—how they forged contract and property rights and other “rights of everyday use.”

Penningroth makes clear that although slaves obviously did not have equal protections under the law, the needs of slave owners and the regular interactions between slaves required legal relationships. This use of the law by Black communities flourished, even under slavery and Jim Crow, often because rights are regularly enforced even without government intervention:

“And so, when you think about, How does a white person in 1850 own a cow?” Penningroth asks, “Well, it’s not because there’s a policeman standing behind waiting to arrest anyone who touches the cow. It’s because most people in that area have seen the white person with the cow, understand the white person’s relationship to the cow. In other words, property, in general, isn’t so much a relationship between a person and a thing; it’s a relationship among people about a thing. And enslaved people are participants in the same system of property that white people are.”

Listen to the conversation here:

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The following is a transcript of the episode:

[Music]

Jerusalem Demsas: In a just society, the law both constrains action—prevents us or punishes us for certain behaviors—but it also outlines our liberties: domains where we are free from interference of others and the government. It outlines the rules of the road so that anyone can play and demand fair treatment. The laws that govern contracts, govern marriage, govern what we owe to each other—all of these bind and free us in turn.

But what was the law to a slave?

My name is Jerusalem Demsas. I’m a staff writer here at The Atlantic. And in today’s episode of Good on Paper, I’ve asked Berkeley historian Dylan C. Penningroth to join me to investigate this very question.

Dylan wrote a highly acclaimed book titled Before the Movement: The Hidden History of Black Civil Rights where he complicates the traditional narrative about how slaves interacted with the law, and the unexpected ways they interacted with the legal system.

But I’ll let Dylan explain that narrative. It’s the one we’re familiar with:

Dylan Penningroth: The master narrative of African Americans in the law is, I think, at some level, pretty simple. It’s that they were oppressed by law. They were outsiders to law. That if they had any contact with law, it was as an oppressive force.

And so that, I think, is true as far as it goes, but it has some consequences. When you think about Black people as outsiders to law, it’s part of this larger narrative that I call the freedom-struggle narrative. Which, broadly speaking—and I’ll sort of caricature just for a moment—it tells a story of Black people who are outsiders to America and who, over the course of 250 years, gradually move toward greater inclusion, more equal rights, from no rights to equal rights, from slavery to something like freedom.

In his telling, this traditional narrative misses the full picture. Dylan’s argument gives us a window into life under American slavery where slaves often interacted with the law—were clearly understood to have some rights to property and contract—and particularly in interactions among slaves, understood how the law worked.

That is, we’re used to thinking of the history of Black Americans and the law as being the relationship between Black and white Americans. What Dylan’s book does is show how much of Black Americans’ relationship to the law happened among Black people themselves.

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And perhaps most surprising to me was that even white slave owners and the soldiers defending their rights couldn’t ignore the obvious humanity of the people they were enslaving. That’s where we begin, with the story that pushed Dylan to write this book.

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Demsas: You start off the book with a story. It’s a 1976 tape recording that your uncle, Craig Baskerville, made. And I know you say that you’re not trying to overturn the freedom-struggle narrative, but it was shocking in the way that you described it to be shocking. So I’m hoping, for the listeners, you can tell that story and explain how it pushed you down the road of telling the new history of Black Americans.

Penningroth: Sure. This is a story that I probably heard a few times when I was growing up, but I really didn’t grasp it until I got a recording from my mom.

It was a little cassette tape that her brother made, Craig Baskerville, of his great uncle, Thomas Holcomb. So on the tape, one of the very first things that Thomas Holcomb says—and Uncle Craig’s asking him about the family history—Uncle Tom says that his father, Jackson Holcomb, was a slave, that his mother was a slave, too: Louisa Brown.

And then he says Jackson Holcomb had a boat. And then he goes on to tell this story about how, in the last days of the Civil War, after the Battle of Richmond, there are all these Confederate soldiers running through the woods, and they come to the Appomattox River, where Jackson Holcomb has his boat. And he carries them across the Appomattox—ferries them across—and then when they get to the other side, they paid him.

And so I’m thinking about this story and wondering, Hold on a second. These are heavily armed white men—Confederate soldiers—fighting to preserve slavery, to keep men like Jackson Holcomb in slavery. They have no legal obligation, and they don’t really need to pay him anything. But they do.

And so that set me off wondering, not just, Why did they pay him? but, Why did it seem so taken for granted for them to pay him? And as I dug in, I realized that the story that I just told, the story of Jackson Holcomb and his boat, it’s part of this larger world of privileges that’s very much intertwined with—it’s mixed up with—not a world outside law but with law itself.

The reason they paid him is because white people in the South in 1865 were used to paying enslaved people for services rendered. They were used to seeing enslaved people having boats, having property, chickens, horses, and so forth.

Jackson Holcomb could not have sued to get his boat if they had taken it. He couldn’t have sued for breach of contract if they hadn’t paid him. He didn’t have rights, but he had privileges, and those privileges were powerful enough and broadly enough understood that these Confederate soldiers paid him without any questions. And that’s the story that begins the book and sets up this longer story that I want to tell about Black people’s relationship to law, their relationship to one another, and about civil rights.

Demsas: So when you dive in after hearing the story and deciding to look into this question of what sorts of what you call privileges were available, what did you find? What sort of privileges was it? I mean, it sounds like what’s implied here are contract rights and property rights. What other things were you finding and kind of what are examples of that?

Penningroth: Right. So when we think about what civil rights meant in, say, 1850, most Americans would have said something like, It’s the right to contract, the right to property, and the right to go to court—sue and be sued. I call these the rights of everyday use.

Abraham Lincoln campaigned for president on a platform that said that all men, including free Black men, are entitled to these basic, fundamental rights. For him, that was the line between slavery and freedom. So slaves didn’t have civil rights, so they couldn’t sue over property, and they didn’t have legal rights of contract or property, but they had these privileges.

And I’ll just give an example of one privilege that slaves had and why it was that they were allowed to have these privileges. So one privilege that many slaves had was the privilege of working after hours and to earn money. And so in many different parts of the South, you had enslaved people who would come home after working 12 or 14 hours in the fields, and they would go and they’d spend an hour or two working a garden of their own. They would raise chickens. If they were lucky, they could raise cows and more expensive livestock. And they would basically use the proceeds of these things to make their lives better. But a lot of what slaves are doing is they’re trying to nourish themselves beyond the corn and fatback that their masters are giving them.

Now, why did masters let enslaved people do that? The answer is that it saved the masters money. It was good for the bottom line, for their profits. That’s why they did it. The second reason they did it is because they never had to acknowledge these things as rights. Again, they were powerfully understood, broadly shared understandings. But, of course, if an enslaved person had tried to go to court and say, Well, my master didn’t allot me the garden plot that I’m entitled to, the court would have laughed him out. But there is this kind of baseline understanding.

And so one of the things that I say in the book is that, because enslaved people had these privileges, when freedom came, the advent of civil rights—that is, the idea that Black people could have rights and be citizens—was actually not such a huge step for white southerners to take.

Now, of course, there are all these questions about dignity; they weren’t willing to grant that. They weren’t willing to grant what they called social rights, and they certainly weren’t willing to grant political rights to Black southerners. But when it came to these basic civil rights of property, contract, and standing, it wasn’t such an enormous transition for white southerners, and that had consequences.

Demsas: Well, I want to dive into a little bit why it was that white people and masters were, in any way, respecting these privileges or these quasi rights. You write, at some point, that slaves owned property in every legal sense of the word, except that no court would protect their ownership as a right. You just made that argument here, too. But that feels like a significant exception, right?

If no court protects that ownership, how is it meaningful? Why are they respecting it? What does it mean to the bottom line? If the slave has the energy to plot the garden, why doesn’t the master make them continue working for a couple more hours? What is actually playing out there that makes it in the interests of the dominant class to allow this to go on?

Penningroth: I think there are two ways to answer that. One, as I said, is that it was good for the master’s bottom line. There’s what Derrick Bell, the founder of critical race theory, called an interest convergence, where the interests of the master converged in some small measure with the interest of the slave. So that’s one answer.

But the other answer that I think you’re getting at here is that enslaved people didn’t have civil rights, and so when I say that they owned property in every sense of the word except the legal one, that’s a very significant one. They couldn’t go to court, but that raises a secondary question: How often do we go to court over property or contract? We really only do it when something goes wrong. And even then, we tend not to do it. Most people, when something goes wrong with a contractor, suing is a last resort. We generally try to work things out outside court because court is expensive. It’s unpredictable. All sorts of things can happen in court that you may not anticipate. And things were not that different in the 1840s and 1850s.

So the fact that enslaved people couldn’t go to court meant that, yes, they couldn’t do anything about it, legally, if the master decided to take away that privilege. They could go on strike. The master could punish them. But then you’re into a spiral, which is profoundly unprofitable for the master and dangerous for the slave. So there’s this kind of negotiated balance. When it goes wrong, the slaves are out of luck. But when it is working, the masters are perfectly willing to let enslaved people have these privileges as long as they don’t try to claim them as rights.

The other part of the story is that white people are operating in this same world. If slaves aren’t going to court over property, neither are white people. And so, when you think about, How does a white person in 1850 own a cow? well, it’s not because there’s a policeman standing behind waiting to arrest anyone who touches the cow. It’s because most people in that area have seen the white person with the cow, understand the white person’s relationship to the cow. In other words, property, in general, isn’t so much a relationship between a person and a thing; it’s a relationship among people about a thing. And enslaved people are participants in the same system of property that white people are.

Demsas: You know, it’s funny. I write a lot about housing, and I’ve done a lot of research on segregation and how the color line broke down and residential segregation. And there’s this great paper: Economist Allison Shertzer and her co-authors—they talk about how they were able to look block by block and see how it segregated and desegregated and the prices that were paid for different homes and rentals.

And they find that “to induce incumbent white owners to sell to a Black family, these pioneers paid a premium of roughly 28 percent relative to the prices that white homeowners were paying on the same block.” And so, in that story, that’s much further past where we are right now. But you see that the color line is not broken down because you have individual white homeowners deciding, Out of my own beneficence or desire to be a good person or belief that Black people are actually equal partners in the law. It is that there’s a financial incentive here.

And it seems like a through line that you’re drawing all the way back to slavery is that it just was easier. It just was easier. It was less costly. It was less difficult to allow people their dignity. And I wonder how much of that is a theme of your work.

Penningroth: Absolutely. It’s a theme throughout, and it threads through a bunch of different things that I talk about in the book. So, for example, efficiency or the efficiency costs of going to the trouble of carving out a separate law of property for Black people—that’s a through line. The costs that white lawyers would have had to endure if they had either declined to take Black clients or segregated them on their books—that’s another theme.

In many different ways, you see white people, over and over again, recognizing Black people’s rights, not so much because they are committed to a cause but because it’s good for them, in some sense. We could talk about why, for example, white supremacist lawyers, like Senator James Eastland of Mississippi—who blocked dozens of civil-rights bills during the 1950s—why it was that he had a great number of Black clients, who he represented in lawsuits against contractors who refuse to pay, tort lawsuits for accidents. He had Black clients. It didn’t seem to bother him. And at the very same time, he’s a member of the White Citizens’ Council, and he’s blocking all these civil-rights bills.

And I think the reason he does that is because he wants to make money. And there really isn’t a threat to him or a threat to the system of white supremacy. In other words, his interests are converging with those of Black people. And you see that again and again in the stories that I tell.

Demsas: It feels like there’s a big tension within historical and economic scholarship about whether these markets are helping break down racial inequalities or they are a part of perpetuating them. Obviously, it doesn’t have to be one or the other. There are ways in which both of those things can be true at the same time.

But how do you think about that? Because obviously this is something that is happening because these markets are allowing people to sell their labor or sell goods and services. And then, of course, the housing markets were the way they were because of a lot of capitalist tendencies. And, at the same time, there’s a lot of scholarship about racial capitalism that indicates it is a system of exploitation that’s really built on slavery. How do you think about the tension?

Penningroth: Just taking the example of slaves owning property—that did not do anything to break down the system of slavery, and it didn’t challenge the idea of white supremacy, either. It actually helped slavery. It helped the master’s bottom line. It made slavery more profitable. What you see going on there is enslaved people super-exploiting themselves. You remember: They’re working 10, 14 hours a day for a master, and then they have to go home and work in a garden so that they can grow the vegetables that they need to survive. I don’t think that this interest convergence undermines institutions like slavery.

It’s a difficult question, and I think that the literature on racial capitalism is really important in understanding what’s going on there. What I would add to it, though, is that Black people—to the extent that they’re participating in these systems, to the extent that they’re exercising rights of property and contract—that opens up a way for us to think about Black people’s relationships with one another, as well as their relationships with whites. And a lot of the way that Black people negotiated their relationships with each other—as parents and children, as friends, as neighbors—was through law.

And when I say law here, they’re not negotiating their relationships through what we think of as civil-rights law—that is, antidiscrimination law, federal antidiscrimination law. It’s not in the Supreme Court. That’s not how they’re doing it. They’re doing it through face-to-face negotiations over a horse, over a fence, over a contract to carry someone across a river. That’s the way that civil rights help us open up this dimension of Black life that I think has been underexplored because we’ve been so rightly concerned with the struggle against white supremacy.

Demsas: It’s interesting. I don’t have a definitive point of view on this yet, but, in my sense, it does feel like there are ways in which these interactions do help break down white supremacy. Even having to recognize that this person is capable of these interactions—I mean, this is Confederate soldiers, right? These are not repeat players trying to cross the river when they’re coming to your ancestor there. These are people who are just like, All right. Well, this is a person who’s making a claim to me. I’m recognizing, at some level, this humanity in this interaction that we’re having together.

It’s interesting that you don’t see that as playing a role in breaking down the idea that there is no dignity. No one would ever pay, you know, an animal to cross them across a river, so I wonder how you see that.

Penningroth: That’s a really important thing to point out, and I’m glad you’re pushing back here because it gets at a really important point that I’ve tried to make. So I think what you’re articulating—this idea that whites thought of Black people as subhuman, as something other than human—is something that you see a lot in African American history scholarship. There’s this idea that the essence of slavery was the chattel principle—the idea that slaves were property, just like a horse or a cart, was the animating spirit, the driving engine of slavery.

And I just think that’s not true. Or, at least, it’s not the whole story. If anything, the genius of slavery is that it could be so many different things at once. In one situation, a master could treat a slave as a thing. But in another situation, a master would treat a slave as an agent—someone who is exercising the master’s prerogatives on his behalf. And so, the mutability of slavery, I think, is what gives it its enduring power.

There’s a larger issue tied up here, though, and that is that the chattel-principle idea—this idea that the essence of slavery is that the slave is a thing, a person with no rights—that actually is, at bottom, or, at least, it echoes an abolitionist argument that later becomes an important component of the Republican Party’s platform that sends Abraham Lincoln to the White House. That is to say: They portrayed slavery as an institution that reduced people to things, and they portrayed freedom as an institution that made people the opposite of slaves. And they went a step further, and they said that the difference between slavery and freedom was civil rights, that the powers, the rights that made you more than a thing—more than a horse or a cow—was the right to property, the right to contract, and the right to go to court.

That, I think—you can see where this is going—it’s a powerful argument. It also, I think, is part of the animating spirit of the ultraconservative Roberts court. It animates a lot of libertarian discourse. And the basic idea is—you take it a step further—those mark the difference, the bright line between slavery and freedom. And that’s all you need.

Demsas: All right, time for a quick break. More with Dylan when we get back.

[Break]

Demsas: I think you got at this a little bit, but why isn’t this the traditional story? Because when I read your book, I realized that, implicitly, had absorbed this idea that there really wasn’t anything going on amongst slaves and the law. And, even during Jim Crow, the idea that people would really be doing anything other than being oppressed by the law—I mean, that’s just not how I thought about history.

That period of time felt like a black hole, to me, about what was even going on in the lives of slaves, until you get to this traditional narrative that you’ve described about the civil-rights movement and these lawyers and organizers from the Student Nonviolent Coordinating Committee coming down. And so, how does it get erased? What happened, and why?

Penningroth: Let’s take it into the Jim Crow period. And I’ll just take one important example of what we’re talking about here: Think about Black colleges, like Spelman, Howard, Morehouse. These are all founded in the late 1800s. So are Black fraternities, many Black churches. These are among the most important and wealthy institutions in Black communities. They all get founded in the late 1800s, and they represent enormous concentrations of Black wealth—less than white people but, nevertheless, they’re important.

Then, too, consider that Black people in about 1915 owned about 15 million acres of land, and almost all of it was in the South. That’s around the peak of lynching. So there’s this way in which the story that we tell about Jim Crow fails to account for—or, at least, it has to shunt off on a separate track—this story of Black achievement.

And what happens when we don’t take account of the story in this way is, I guess, a couple of things: One is it’s hard to make sense of it. And two, the only way to make sense of it is to take account of, number one, this interest convergence, and number two is to take account of power dynamics among African Americans. Because the only way that Black people—remember, they’re just a generation removed from slavery—the only way that they could accumulate property on that scale is by mobilizing the labor of family. They literally had to work like crazy for generations and then keep that wealth together, concentrated in the hands of a few people.

In other words, they needed to mobilize members of a family, even members of a community, to go in one direction and to pool their resources. That’s not something people necessarily do just because they’re all Black or just because they’re all members of a family. Somebody had to exert power. And so a lot of the story that I tell about Jim Crow—and, indeed, this has implications for the period of civil-rights struggle—is about how Black people formed organizations or how they thought about existing social organizations like family, how they made decisions about the structure of power, rights and privileges to resources within those social organizations, and who was part of it. To put it in a nutshell: Who got to decide who belonged in the family, and what did it mean to be a member of a family?

Demsas: And so you talk about this in your book, about how SNCC organizers—who are usually cast as the heroes of the civil-rights movement, or one of the heroes of the civil-rights movement—you talk about them kind of critically. It seems that you view them as having perpetuated the idea that Black southerners had no sense of the law. What led you to see them as being perpetrators of that narrative? And why did that happen?

Penningroth: Well, it was really some of the SNCC organizers’ own words that I was reading. Some of them were quite critical of SNCC. John Lewis was one, and one of the things that he wrote in his autobiography was that SNCC had horrendous troubles with governance. I think there’s a line that he writes in his book, quoting members of SNCC, saying something like, SNCC isn’t a democracy. It’s not an organization. It’s not a union. SNCC is a movement.

And to John Lewis—he’s on his way out when he writes these words—but to John Lewis, that was a symptom of one of the fundamental problems with SNCC, which is that, in its pursuit of radical democracy, it failed to embark on the kind of organizational work that it needed to do. It didn’t concentrate power in a president. Anyone could object, at any time, to any decision that it made.

And so, of course, you have these meetings that drag on for hours and nothing gets done. And furthermore, SNCC—although it said that it was all about power to the people and empowering the grassroots—many of the grassroots organizers they were trying to recruit, they actually wanted SNCC to appoint leaders, to elect leaders and empower them, maybe even to incorporate. And so SNCC only lasted for, I think, seven years. And then it collapsed in infighting.

You can contrast that with an organization that came a few years before SNCC—the Montgomery Improvement Association. So that’s the organization that drove the Montgomery bus boycott. And not many people think about this, but about five months into the boycott, in June of 1956, the organizers of the MIA go down and they incorporate the MIA.

In other words, they turn it into a corporation. Martin Luther King is its president. And what that does is it empowers the board of directors to make decisions on behalf of the organization, to speak for the organization. And the members have very few rights within the organization. They can’t speak out against what MIA is doing. That power to take in money, to speak for the organization, to dole out money and do it legally through a corporation—that’s what enabled the MIA to prevail over the ferocious onslaught of the Montgomery white power structure.

And so that contrast, for me, points up a couple of things. One is: Black people knew about law. They were using law for a century before SNCC even came along. And second: That law was essential to the civil-rights movement. So, in other words, they’re seeking changes in federal law, but what powers the movement, often, are these ordinary rights of property, contract, the right to go to court, and this right to incorporate and delegate power.

Demsas: I wonder what you think would have been different if there had been a focus on these rights of everyday use that you call them, instead of focusing on the civil rights and this kind of movement politics that it seems you’re lamenting left behind something important. What would it have looked like for a civil-rights movement to focus on those laws and to see civil rights as something all people have in common with one another rather than something the law is granting to Black people?

Penningroth: I think, really, this is more a matter of messaging than anything else, or the public face of the movement. So the public face of the movement is about anti-subordination, antidiscrimination. It’s about federal law. But it’s clear as day that everyone in the movement, every day, is relying on these rights of everyday use. Another part of it is that what I’m calling rights of everyday use, people didn’t call them that. That’s just a word that I’m bringing to them.

And people also, by the 1940s, they were no longer tending to refer to those as civil rights anymore. So in popular discourse, like in Life magazine or in presidential addresses, when people talk about civil rights, they’re now talking about things that in 1850 would have been thought of as social rights, like the right to go to school with someone else, the right to marry someone of a different race, the right to ride on a train or other public accommodation with members of a different race.

The civil rights that they’re talking about in the 1960s and ’50s are social rights and also political rights. So in the 1850s, you’ve got this three-part division of rights: social rights, civil rights, and political rights. By the 1950s, those categories are starting to blur in interesting ways. And property, contract, and the right to go to court—those are kind of an unmarked category. People don’t really refer to them explicitly anymore as civil rights. So that’s how I would answer that question, is that it’s there all the time. It’s hiding in plain sight, but that’s largely because of this change in the public meaning of the term civil rights.

Demsas: I write a lot about exclusionary zoning and local government and the ways in which local governments have been really the front lines of discrimination and segregation in the history of the United States—and often kind of seen as the federal government coming in and enforcing civil-rights law, whether it’s desegregation, or preventing it, you know, during reconstruction. And even now, we see that how people conceive of how to get local governments to do the right thing is to get the federal agents involved, whether it’s the Justice Department coming in to do consent decrees or things like that.

In your story, local and state courts are really avenues where Black Americans were able to navigate areas of freedom and these rights of everyday use but also carve out, really, their own dignity. Should I be thinking better of local governments? I really don’t want to, but I will hear you out if you tell me to.

Penningroth: Well, I don’t know if you should think better of them, but I think that it’s worth considering that they were, in fact, dealing with Black people all the time. So I like to think back on this famous scene from the movie Selma because I think it captures what you’re talking about really nicely. So, Ava DuVernay’s wonderful movie from 2014 has this scene—many of you may have seen it—where a character played by Oprah Winfrey goes to the courthouse to try to register to vote, and she’s treated horribly by the registrar, the voter registrar. That is true.

But the larger implication of the movie is that Oprah Winfrey has never been to that courthouse before, or that she’s scared to be there. She’s scared all right, but the reason she’s scared is because she’s registering to vote. I know, because I’ve looked at 14,000 of these cases, that Black people were in local courts all the time. They were there exercising these other civil rights. They weren’t trying to register to vote—that’s political rights. They weren’t trying to go to school with white children—that’s social rights. But they were there to argue over a horse or a cow or to get divorced or to sue their minister. These sorts of everyday uses of law are the stuff of Black legal life, and they don’t challenge white supremacy.

I don’t necessarily think that you should think better of state and local officials, but I do think that there’s a story that hasn’t been told about those local courthouses. And it’s a story that’s as much about Black people’s relations with each other as it is about dealings with the registrar or the sheriff or the county clerk.

Demsas: Well, as long as I get to continue thinking badly of these groups, then I’ll continue to read—

Penningroth: (Laughs.) Yes, you have my permission.

Demsas: (Laughs.) When I was reading your book, I actually started thinking more about how common it is to miss the details of the lives of people who are oppressed. I think that a big part of this missing story you’re talking about is not seeing Black communities and Black people as fully human, and to see them just as members of an oppressed class.

A year ago, I was in Frankfurt. I went to the Museum Judengasse, and they have a preserved block of the Jewish ghetto from the 1400s and 1500s. And they’ve preserved, somehow, many of the informal legal documents that governed Jews’ relations to one another. So it’s people fighting or stealing from one another or getting married. And they have this exhibit where you can listen to a dramatization of a lot of these documents read aloud and give you a picture of that life.

And it just struck me then—and again while reading your book—it’s a very common thing to see, in historical narratives about oppressed groups, that they’re really flattened in this way. Do you view the civil-rights arc that you talk about in your story as somehow being particular to the experience of Black Americans in not seeing that full humanity? Or is this a kind of trope that is employed time and again because of how effective it is at getting more support—you have to really erase some of the humanity and human interactions and the privileges that people do have in order to make your case to a broader public?

Penningroth: That’s a great question. And, of course, I’m not an expert in European history and these other fields, but it absolutely makes sense that a powerful way to organize a social movement and to attract support from people beyond the affected minority group is precisely that. You have to engage in storytelling—and storytelling, by definition, flattens. And so there are some aspects of the freedom-struggle story that are absolutely true, and it is also absolutely true that the activists who did that work—many of them unsung—were indeed heroes. But I also think that treating them as heroes and treating them as outsiders to law, as you say, flattens our understanding of what Black life was like.

Demsas: Mm-hmm.

Penningroth: I’ll just give one example that comes from the early period and actually has a through line to today, and it’s about Black churches. So in 1966, there was a woman named Vernita Wimbush, who’s a member of a CME church—what they called a Colored Methodist Episcopal church, now Christian Methodist Episcopal church—in Washington, D.C. She writes a letter to her bishop where she says, Do you remember the March on Washington of ’63? And she basically threatens that she and a bunch of her fellow members are going to march on the bishop’s house if the bishop does not reappoint the minister they want in their church.

So what she’s doing here is she’s co-opting the language of the freedom struggle in order to fight a battle that she has with her bishop. Vernita Wimbush is one of many Black women who are essentially fighting a two-front war. There’s a war against white supremacy in society, and then there’s a war against male supremacy in church. I think that these sorts of questions ought to change the way that we see Black life by focusing attention on Black people’s relationship with each other and by focusing on the way that Black people used law and tried to turn privileges into rights.

Demsas: It’s so interesting because you talk about this in your book, and it’s interesting how much women were willing to subordinate their cause as Black women to just the cause of Black people and civil-rights movement and how much that story was necessary in order to get them to do that.

I wanted to move us to modern day because one of the things I couldn’t help thinking when reading your book is there’s another group of people, I think with very different political goals than your books, that use some of this rhetoric, too. There’s been push by some conservatives to recast the era of slavery as having had many privileges and benefits for slaves. For instance, in Florida, there was a debate on an education bill, and the Republican state rep said, “There is only one way to teach about slavery in Florida, and that is that it was evil. But if we can’t have an honest discussion and say that some slaves were paid for their work and were able to actually get a portion of payment that slave owners receive for their labor, then we’re afraid of teaching accurate history.”

I could imagine someone reading your book, coming across the first chapter that’s titled, “The Privileges of Slavery,” and seeing that as somehow simpatico with this argument that slavery wasn’t that bad for slaves or, at least, that we’re missing some of these privileges. How do you think about that debate that’s going on and how your scholarship fits into it?

Penningroth: Oh, goodness. That’s just politicians being politicians. They’re twisting the past for their own ends. I thought about this issue—what bad actors might do politically with the things that I was writing about. That gets at a really big question: What is the obligation of a scholar? Is it solely to uncover the truth? Or how much should we worry about what Ron DeSantis and his cronies on the Florida education board are going to do with our work?

What I decided is that I was going to tell the story, and that story is not very complimentary to the argument that DeSantis and his people are making. On the one hand, they want to say that slavery was evil. On the other hand, they want to say that there were some good things about it. I mean, evil is sort of a categorical statement, right?

Demsas: Yeah.

Penningroth: Something can’t be evil but also good. So their argument is contradictory, at bottom. But I think the most damning point about this is that the argument that DeSantis is making is that there’s something inherently liberating about having property. And, of course, that fits into a longstanding component of Republican Party ideology—again, it goes back to Abraham Lincoln—which is that civil rights are the things that make us free and that if you have civil rights, you are free and nothing else. We don’t need to worry any more than that. I think you can see elements of that coming out in the idea that, somehow, slaves owning property and having gardens means that slavery wasn’t evil. That’s a testament to what I view as one of the fundamental flaws of Republican Party ideology.

Demsas: You know, I really appreciate you sharing that weighing with me because, as someone who—I’m not in the academy, but I’m often talking to academics about their work, and it’s really useful to know that people are thinking about this stuff but also choosing, at the end of the day, to do the scholarship anyway. Because you just never really know how your stuff is going to be used, but if you are doing good scholarship, you have the chance to move the needle toward the truth, which is incredibly important for understanding and getting toward progress.

So I talk to a lot of academics all the time who wrestle with this in their own work, and it is useful to me, and I think to a lot of people, that there is still a strong norm of, You still have to publish. It’s not about what someone right now might do. Scholarship is supposed to live for decades, if not centuries.

Penningroth: Absolutely. I’m not going to say that I published everything that I found. I mean, there is this—

Demsas: What are the secret files?

Penningroth: Yeah. Well, what I mean by that is that the kinds of records I was looking at—a lot of them are very personal. They’re very intimate, especially when people get divorced or when there’s inheritance. Again, my book is largely about Black people’s relationships with each other. And those relationships were often angry. Sometimes they were petty, and so there were times when I thought, Well, there are stories that I could put in here, and I’m just not going to do it. I’m not going to put that into the book, because I don’t know how that might get used.

And, at bottom, it’s not really essential. It’s not necessary for me to make the argument that I’m going to make. The more important thing that I want to take from this part of the conversation is precisely that these records are so incredibly rich. You could write 20 books from these records about Black life. I’ve just scratched the tip of the iceberg. And I want to give a shout out, too, to the people who are the caretakers of these records. These are local county clerks and deputy clerks in little towns all over America. They often have very small budgets. And they made it possible for me to do this work.

Demsas: Well, when you write one of those potential 50 books, we’ll have to have you back. But, for now, it’s our final question: What is something that you initially felt was a good idea, but it turned out to only be good on paper?

Penningroth: I’m thinking back on a bicycle trip that I took with my father when I think I was 11. We used to do that from time to time. I lived in central Jersey and Princeton. And I remember that one trip we took, we were going to the Pine Barrens, and we mapped out the whole thing on the table. This is back when you had paper maps.

And one of the places we wanted to go was a little town called Friendship and then take the road from Friendship to the Carranza Memorial, which is an interesting local monument. So we bicycled down these roads, and we get to where Friendship is supposed to be, and we can’t find it. And we’ve realized that Friendship is a ghost town. And then, you know, finally we got back on our bikes, and we start down the road to the next stop, at the Carranza Memorial. It turns out that the whole road was sand after that point.

Demsas: Oh, no!

Penningroth: And so we’re spending hours—you can’t ride a bicycle on sand. These are not beach bikes. I had a ball. I was 11, and I was going back and forth, and—I’ll add—I did not have all the sleeping bags and tent and food on my back. So my dad is back there sweating. His wheels are digging into the sand, and he finally gets off and walks. Like I said, it looked good on paper. But when we actually got there, it was even more fun.

Demsas: I do feel like some of these stories about—I think that we’ve had a couple of these now where it’s about someone making the wrong turn while on their bike or driving or whatever. And it’s funny. It feels like GPS has taken away this rite of passage for us. Now it’s like everyone knows—you can even see on Google Maps—the exact walkability. What’s it going to look like? And you don’t get lost anymore.

Well, thank you so much for coming on the show. This was incredibly fun. I feel like I just learned so much, and I really appreciate you taking the time.

Penningroth: Oh, I so appreciate you having me on. Thank you.

[Music]

Demsas: Good on Paper is produced by Jinae West. It was edited by Dave Shaw and Claudine Ebeid, fact-checked by Ena Alvarado, and engineered by Erica Huang. Our theme music is composed by Rob Smierciak. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.

And hey, if you like what you’re hearing, please leave us a rating and review on Apple Podcasts.

I’m Jerusalem Demsas, and we’ll see you next week.