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Laura Edwards on consciousness of law before and after the Fourteenth Amendment

Looking back at the early nineteenth century through today’s lens, which generally conceives of justice in terms of  individual rights, many Americans – particularly slaves and married women – were largely invisible from a legal perspective, lacking any real recourse to federal and state law. The story of the Reconstruction amendments to the Constitution accordingly is often told as establishing and enabling completely new rights, especially for African Americans.

Last Wednesday, as part of the Supreme Court Historical Society’s lecture series, historian Laura Edwards told a new story of the Reconstruction amendments, one told from the ground up within the contours of daily life in the many and varied locales of the United States in the nineteenth century. Through her research, Edwards has uncovered numerous dusty documents, nearly unintelligible for their handwriting and for the cases they describe – one slave claiming two other slaves stole his property, one married woman claiming another woman stole her goose, slaves against slaveholders, children against parents, wives against husbands. These forgotten cases describe scenarios – like slaves and married women owning property and bringing charges – that are impossible from the perspective of federal and state law – an entire framework of legal consciousness that, as Edwards related, would have been the common, everyday experience of most Americans (and she really meant “most,” not just white men) with the law.

Within this legal framework, the question was not about “rights” but “what was right,” and justice pertained less to the individual and more to public order. The goal was keeping the “peace,” and it involved everyone. Magistrates, who often had no formal legal training, heard individuals plead their own cases and bring their own witnesses in courts convened wherever – including houses, barns, or yards – there was a dispute. Even though they did not have a voice in state and federal court, slaves and married women could provide “information,” on the basis of which magistrates could proceed to bring claims on their own. More than making a legal decision, the magistrate was healing rifts within the community and with the participation of all.

In effect this “peace” was often anything but, and these courts coercively sought to maintain the status quo. Everyone had a place within the hierarchy of the local community, whether they liked it or not, and for magistrates maintaining public order often meant maintaining the hierarchy. And yet, even as local courts were not the place to make structural changes to the organization and justice of society on a national level, these local courts were the venue for ordinary Americans to resolve their disputes. The logic of such resolution did not depend entirely or even mostly on legal texts and precedent, but often on local custom and accepted wisdom (like the Bible), and the basis for an argument was not individual rights but what would be right for that community. The woman whose goose was stolen – she got it back, not because it was her property right but simply because the goose belonged with her. More important than the woman harmed by losing her goose, though, was that the community structure as a whole would be harmed if geese were stolen. This type of decision did not create precedent for future cases, but within her local community everyone knew that this goose really was hers, and so through her local court she could get her goose back. This, as Edwards argued, generated within the ordinary American a confidence in the power of the courts to redress personal wrongs and a consciousness that courts were the place to expound visions of what was right for the local community.

Within this legal framework, the state and federal governments were distant and even abstract. The federal government in particular played a small role in most people’s lives – affecting them only through military service, political campaigns, and the post office. The Civil War radically changed this. Especially in the South, the advance of the Union troops literally brought the federal government into rural and previously semi-isolated communities. Martial law put the federal government in charge of local courts; right away, before the battles even abated, African Americans began turning there for redress. Notably, this all happened well before the passage of the Fourteenth Amendment.

When I asked Edwards afterwards how ordinary Americans could suddenly have had the legal knowledge to adopt what seemed like a new strategy, she responded that the point is exactly the opposite: ordinary Americans did not have such awareness. To them a court was a court, and it was where one goes to put right what has gone wrong. At this moment in history, African Americans were not suddenly turning to federal courts with a sense of individual rights, but instead as if the federal court were just another local magistrate – albeit one more likely to give a favorable ruling. What was different now was that their cases in federal court did result in precedents on which other African Americans elsewhere could rely, even if they only meant for their own local situation to be corrected.

Edwards emphasized that this was all being driven by ordinary Americans. When the Fourteenth Amendment was passed, it facilitated such cases, but it was not their start, and even after its passage ordinary Americans maintained their previous conceptions of law and the courts. Edwards referenced two cases in particular. Lawyers in Illinois did not consider Myra Bradwell for the bar, even though they depended on her analysis within the Chicago Legal News. In Bradwell v. Illinois, she lost in her attempt to rely on the Fourteenth Amendment to gain access to the bar. Even though she admitted she did not have a “right” to be a member of the bar, it violated “what was right” that she should be categorically denied a privilege available to her male peers. Similarly, in the Slaughterhouse Cases, butchers from New Orleans frustrated with city regulations tried to frame the Fourteenth Amendment around economic rights.

They lost, but to Edwards it is important to recognize that these legal conflicts were happening all over the country. In Edwards’s description, scholarship has reached an impasse on whether these cases, in which the Supreme Court limited the expansion of rights by construing the Fourteenth Amendment around the political and civil rights of African Americans, demonstrate that the Fourteenth Amendment really was just about African Americans or serve as a harbinger for future uses of the Fourteenth Amendment. For Edwards the “conflict is the point,” because the legal conflicts demonstrate how ordinary Americans sought to use political and civil rights. Ordinary Americans, especially those formerly excluded from federal and state courts, conceived of those rights within an entirely different framework; namely, those rights gave access to expounding a vision of what society could look like, just as if they were in a small local magistrate court.

The final lecture  in the group’s 2015 lecture series will take place next Wednesday, October 28.

Recommended Citation: Andrew Hamm, Laura Edwards on consciousness of law before and after the Fourteenth Amendment, SCOTUSblog (Oct. 20, 2015, 11:51 AM),