DISMANTLING THE HOUSE OF PLESSY: A PRIVATE LAW STUDY OF RACE IN CULTURAL AND LEGAL HISTORY WITH CONTEMPORARY RESONANCES

• Date: 01 July 2004
• Published date: 01 July 2004
• Pages: 91-159
• DOI: https://doi.org/10.1016/S1059-4337(04)33004-8
• Author: Imani Perry

DISMANTLING THE HOUSE OF

PLESSY: A PRIVATE LAW STUDY OF

RACE IN CULTURAL AND LEGAL

HISTORY WITH CONTEMPORARY

RESONANCES夽

Imani Perry

ABSTRACT

In this article Professor Perry argues that Plessy v. Ferguson and the de

jure segregation it heralded has overdetermined the discourse on Jim Crow.

She demonstrates through a historical analysis of activist movements,

popular literature, and case law that private law, specifically property

and contract, were significant aspects of Jim Crow law and culture.

The failure to understand the significance of private law has limited the

breadth of juridical analyses of how to respond to racial divisions and

injustices. Perry therefore contends that a paradigmatic shift is necessary

in scholarly analyses of the Jim Crow era, to include private law, and

夽The author wishes to thank a number of people for their assistance and support including the faculty

of Rutgers School of Law-Camden who gave feedback when an earlier version of this article was

presented as a lecture, and her dissertation readers Henry Louis Gates Jr., and Morton J. Horwitz

who read and guided earlier versions of this research. As well she thanks her parents, Theresa Perry

and Steven Whitman, and her spouse Christopher Murphy Rabb for their encouragement and support

through many hours of writing and research.

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 33, 91–159

© 2004 Published by Elsevier Ltd.

ISSN: 1059-4337/doi:10.1016/S1059-4337(04)33004-8

91

92 IMANI PERRY

moreover that this shift will enrich our understandings of both historic and

current inequalities.

INTRODUCTION

The claim that African Americans merit reparations for enslavement and Jim

Crow elicits a wide array of responses, ranging from astonishment, to appall, to

enthusiasm. Many reparations activists have argued that regardless of whether or

not reparations litigation is successful, it is important that the cases bring about

a public conversation about the history of exclusion experienced by African

Americans. Further, it is argued that the discourse about reparations leads to a

greater understanding of current gaps between African Americans and white

Americans in wealth, income, and education.

The litigation and public conversation about reparations also leads us into

relatively under-explored territory in thinking about race and law. Reparations

discourse is, in part, about the law of property, tort and contract. The litigation

has led us to consider how private actors, governed by private law rules, might

be liable for racist practices, and how profit-bearing enterprises, as governed by

private law, should be treated when the profit was garnered through systematic

racist practices.1Furthermore, reparations discourse aids us in considering how

the law of race exists in both public and privaterealms, and in the messy interstices

between public and private law.

Reparationsdiscourseisalarmingtosomepreciselybecauseitissuchadramatic

departure from the traditional civil rights model of thinking about race and law,in

which public law is conceived of as the sole appropriate realm in which to respond

to deliberate and conscious practices of racism, either at the hands of legislators

or private citizens. Reparations discourse pushes us to broaden, to think about

profit, ownership, and impoverishment in our considerations of race and the law.

However, the reality is that a thorough legal-historical examination of the law of

Jim Crow demonstrates clearly that the shift in thought proposed by Reparations

activists should not be so alarming. Rather, a privatelaw analysis of Jim Crow and

its legacy is demanded by any thorough interpretation of race in American legal

history.When I refer to Jim Crow here, I mean the broad legal infrastructure created

in the final days of Reconstruction and the terrifying period called “Redemption.”I

donotsimplymean the law of segregation assignifiedbyPlessy v. Ferguson(1896).

Rather I positively assert that Plessy just isn’t enough to understand Jim Crow!2

Plessy v. Ferguson has overdetermined3the discourse about race, and in

particular, Jim Crow in the 20th century. I use the term overdetermined in two

senses. First, Plessy has been over-used as both a shorthand for the practice of

Dismantling the House of Plessy 93

legal segregation, and the practice of legal segregation has been used as a cultural

synecdoche for the range of practices that excluded African Americans from

full participation in the body politic in the late 19th through the first half of the

twentieth century. This, despite the fact that Plessy as a case represents a small

fraction of the practices of exclusion, and its status as cultural synecdoche has

obscured the range of de jure practices that were integral to Jim Crow.

Second, Homer Plessy’s case has become the signature symbol of Jim Crow

such that we fail to understand that the practice of legal segregation had meaning

largely as a result of is existence within a larger coherent network of de jure and

cultural practices consistent with an ideology of white supremacy.

In this article I want to take up both the challenge of the overdetermination of

Plessy, and the challenge of private law as race law put forth by the reparations

debate. In so doing I am proposing here a methodological shift in how race is

analyzed in late 19th and 20th century law.I argue that we should decentralize legal

segregation in considering Jim Crow,and engage in a series of reconsiderations of

other racialized legal practices. In centering other areas of race law I believe the

critical race theoretical problematic of moving outside of the “color conscious”

vs. “color blind” dichotomy is facilitated. This is an important undertaking as the

body of critical race theoretical scholarship has shown us, and should be done so

with a historical awareness.

The shift this article proposes is one of theory in practice. This article is not

simply suggesting a paradigm shift motivated by a rejection of the overdetermina-

tion of Plessy, but is actually an attempt to engage in the kind of work that results

from that shift. It is a culturo-historical inquiry of the private law of Jim Crow.

The period of examination is post-emancipation and pre WorldWar I. Specifically

I am treating the law of property and contract as experienced by the majority of

black workers, primarily agricultural, during this period. The law of property and

contract in this period were used to re-establish white supremacy after slavery

ended, and after Reconstruction was dismantled. The white supremacist execution

of private law during this era served to exclude African Americans from the full

practice and experience of citizenship.

This historical analysis is engaged in through an observation of legislation,

case law, and literature written about the subject. In demonstrating that private

law, and its relationship to African American citizenship, was of central concern

to literary and other public figures of the time, I show that the paradigm shift I

propose is not radical or novel, but rather suggested by intellectual as well as legal

and cultural history.

Following the historical discussion, I will argue that the lens of Jim Crow

offered by this history is illuminating and instructive for contemporary studies

of race and law. In showing the contemporary significance of this history it is my