Speak to Your Dead, Write for Your Dead: David Galloway, Malinda Brandon, and a Story of American Reconstruction

• Author: Aderson Bellegarde Francois
• Position: Anne Fleming Research Professor; Professor of Law; Director, Institute for Public Representation Civil Rights Clinic, Georgetown University Law Center
• Pages: 31-93

Speak to Your Dead, Write for Your Dead: David

Galloway, Malinda Brandon, and a Story of

American Reconstruction

ADERSON BELLEGARDE FRANC¸OIS*

Speak to your dead. Write for your dead. Tell them a story. What are you doing

with this life? Let them hold you accountable. Let them make you bolder or

more modest or louder or more loving, whatever it is, but ask them in, listen,

and then write.

1

someone will remember us

I say

even in another time

2

For over ten years, the state of Tennessee prosecuted a Black man and

a white woman, first for living together and then for marrying one

another. Their names were David Galloway and Malinda Brandon, and

this is their story. It is also the story of American Reconstruction—a sin-

gular moment in American history in general, and American constitu-

tional jurisprudence in particular, when, for a brief instant, between

Dred Scott v. Sandford and Plessy v. Ferguson, between the Civil War

and Jim Crow, between the bondage of cotton plantations and the segre-

gation of drinking fountains, between the charnel house of Gettysburg

and the strange fruits hanging from Southern trees, the old world of

racial slavery had fallen into pieces and had not yet rebuilt itself into the

new social order of racial apartheid; everything seemed, again for a

brief moment, possible, everything changing, in flux, in motion. W.E.B.

Du Bois once eulogized Reconstruction as a “splendid failure” which,

had it succeeded, would have given birth to “a different world.” David

and Malinda were two ordinary people whose lives—diminished, damaged,

broken—were, in that liminal flicker of Reconstruction, an emblem of the

different world whose passing Du Bois would in time come to mourn.

* Anne Fleming Research Professor; Professor of Law; Director, Institute for Public Representation

Civil Rights Clinic, Georgetown University Law Center. © 2022, Aderson Bellegarde Franc¸ois. I am

thankful to Georgetown University Law Center alum Agnes Williams and her family for supporting the

Williams Research Professorship that made this Article possible; to the librarians of Georgetown

University Law Center for never telling me “no” even when—especially when—I was asking for the

impossible; to my students Alexander Afnan and Olivia Grob-Lipkis for helping bring this Article into

being over the months they talked me through my unfocused ideas; and, as always, to Parisa, Kian, and

Shahrzad for making time for me to write.

1. ALEXANDER CHEE, How to Write an Autobiographical Novel, in HOW TO WRITE AN

AUTOBIOGRAPHICAL NOVEL 244, 277 (2018).

2. SAPPHO, IF NOT, WINTER: FRAGMENTS OF SAPPHO 147 (Anne Carson trans., 2003).

31

TABLE OF CONTENTS

PROLOGUE .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. . .. .. .. 32

I. THE ORPHAN AND THE SISTERS OF CHARITY OF NAZARETH. .. . .. .. .. 38

II. MALINDA BRANDON.. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. . .. .. 40

III. THE INVALID SOLDIERS OF THE 64TH UNITED STATES COLORED

INFANTRY . .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. 41

IV. THE PREACHER AND THE BROTHELS OF SMOKY ROW .. .. .. . .. .. .. .. 45

V. DAVID AND MALINDA .. . .. .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. . .. . 54

VI. BLACK MOSES AND THE EXODUS TO THE NEW CANAAN OF KANSAS . .. 59

VII. THE LIMESTONE HOUSE ON SIXTEENTH AND CHURCH STREETS. . .. .. . 69

VIII. DAVID AND MALINDA IN MIDDLE AGE. .. .. .. .. . .. .. .. .. . .. .. .. . 74

IX. SPEAK TO YOUR DEAD. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. . .. .. .. .. 82

EPILOGUE.. .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. . 88

PROLOGUE

This is a story about twelve French Catholic nuns who sailed across the

Atlantic in search of paradise in New Orleans, Louisiana; about a white banker

who once owned every Black inmate in Tennessee’s prison system; about a river-

boat captain who sailed the Ohio in search of a port that would take in the hun-

dreds of female sex workers the Union Army had conscripted to his care; about a

Black prophet named Pap Moses who led an exodus of his people out of the cot-

ton plantations of the South in search of a new Canaan in the Great Plains of

Kansas; about a former Confederate soldier who single-handedly tried to block

Tennessee’s ratification of the Fourteenth Amendment and whose grandson

would in time sign the Southern Manifesto to block implementation of Brown v.

Board of Education; about a former governor of Mississippi who once defended

slavery but spent the last decades of his life challenging Jefferson Davis to a duel

and calling for an end to white supremacy; and about a civil rights lawyer who

spent his dying days in an Alabama commune mourning the death of his daughter

and spinning dreams of Black liberation out of the cocoons of silkworms.

These characters—the nuns, the banker, the riverboat captain, the prophet, the

Confederate general, his grandson, the Mississippi governor, the sericulturist—

are not principal players; they are supporting actors orbiting the story’s main

32 THE GEORGETOWN LAW JOURNAL [Vol. 111:31

characters: David Galloway, a biracial Union veteran who was returned to slavery

after the Civil War, and Malinda Brandon, a white girl made orphan in the time

of cholera in Nashville, Tennessee, who, when of age, chose for a while to pass

for Black. Here and there, the story turns to these secondary players because it is

a story about race and slavery and, like black holes that cannot be seen but only

sensed in the gravitational pull and superheated reflection they cast on nearby

stellar matter, so too the central characters in race and slavery stories can often be

seen only in the shadow they throw on those around them and the echo they leave

behind.

And, like all race and slavery stories, the story of David Galloway and Malinda

Brandon cannot be told in a linear fashion; it toggles between past and present;

time moves forward so swiftly that small settlements become large cities over-

night; it moves backwards so relentlessly that, like “boats against the current,”

we are “borne back ceaselessly into the past.”

3

And, again like most race and

slavery stories, the story of David and Malinda has gaps in it; people are born,

live, and die barely leaving behind a public trace that they were here. But these

leaps in time and these lapses in chronology are to be expected because “[e]very

historian of the multitude, the dispossessed, the subaltern, and the enslaved is

forced to grapple with the power and authority of the archive and the limits it sets

on what can be known, whose perspective matters, and who is endowed with the

gravity and authority of historical actor.”

4

This story takes place mostly during Reconstruction, and to write about

Reconstruction is to constantly imagine a series of counter-factual narratives and

counter-constitutional doctrines—what would the American constitutional

experiment have amounted to had Reconstruction been made to work, and the

second Founding not been killed off in its infancy? What would have been our

modern conception of substantive rights had the Supreme Court not hollowed out

the Privileges and Immunities Clause in Slaughter-House?

5

Would Plessy v.

3. F. SCOTT FITZGERALD, THE GREAT GATSBY 121 (1925).

4. SAIDIYA HARTMAN, WAYWARD LIVES, BEAUTIFUL EXPERIMENTS: INTIMATE HISTORIES OF SOCIAL

UPHEAVAL xiii (2019).

5. 83 U.S. 36 (1873). Between its 1872 decision in Blyew v. United States, 80 U.S. 581 (1872), when

the Court considered for the first time the reach of federal power under the Reconstruction Amendments,

and its 1906 ruling in Hodges v. United States, 203 U.S. 1 (1906), when it unequivocally declined to

read the Reconstruction Amendments as granting a markedly greater role for the federal government in

the protection of individual rights, the Court issued eleven decisions in which it purportedly attempted to

grapple with the meaning of the Reconstruction Amendments and Congress’s power to enforce them:

Blyew, 80 U.S. 581 (1872); Slaughter-House Cases, 83 U.S. 36 (1873); United States v. Cruikshank, 92

U.S. 542 (1876); United States v. Reese, 92 U.S. 214 (1876); Strauder v. West Virginia, 100 U.S. 303

(1879); Ex parte Virginia, 100 U.S. 339 (1879); Virginia v. Rives, 100 U.S. 313 (1879); Neal v.

Delaware, 103 U.S. 370 (1881); United States v. Harris, 106 U.S. 629 (1882); The Civil Rights Cases,

109 U.S. 3 (1883); and Hodges, 203 U.S. 1 (1906). In some of these rulings, namely Strauder, Ex parte

Virginia, Rives, and Neal, the Court conceded that whatever else the framers of the Reconstruction

Amendments intended, at a bare minimum they meant for the Amendments to invalidate state laws or

state actions that on their face denied Black people solely on account of their race those rights and

immunities that were already guaranteed to others either under the 1789 Constitution or under the

constitution of a particular state. See Strauder, 100 U.S. at 310; Ex parte Virginia, 100 U.S. at 347;

2022] SPEAK TO YOUR DEAD, WRITE FOR YOUR DEAD 33