Date01 July 2004
Published date01 July 2004
AuthorImani Perry
Imani Perry
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
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
moreover that this shift will enrich our understandings of both historic and
current inequalities.
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.
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

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