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Thursday, November 25th, 2004


Black Trials: Citizenship from the Beginnings of Slavery to the End of Caste

by Mark Stuart Weiner

Indelible Marks

A review by Justin Driver

"Nothing so charms the American people as personal bravery," wrote John Brown in 1851, more than eight years before he stormed Harpers Ferry. Whatever one makes of his assessment of the American character, no one can doubt the sincerity of Brown's belief. Many commentators have offered elaborate theories about what attributes make Americans distinctively American, but few have been so prepared to put their hypotheses to the test. Mark S. Weiner simultaneously embodies and endorses Brown's sentiment, as tales of personal bravery lie at the core of his treatment of African American history. And while no one will ever confuse writing a book with sacrificing one's life, the choices that Weiner makes in framing black history reveal not a little bravery of the intellectual variety, even if Weiner's courage sometimes exceeds his better judgment.

Covering nearly four hundred years of history, Weiner focuses on legal episodes that reveal how the descendants of slaves became citizens and, in the process, helped to transform the national identity. I use the term "legal episodes" because Weiner adopts an appropriately expansive definition of what constitutes a "black trial." Although the law is always implicated, Weiner's episodes are not trials in a strictly legal sense, in that the events do not always culminate in a courtroom showdown. "Black trials," Weiner writes, "are legal events that figure symbolically and dramatically in American culture by making public certain basic ideological conflicts about race and civic life." Weiner contends that an examination of African Americans' relationship to American law is uniquely revealing because over the centuries they have been the group most often deemed undeserving of legal protections: "The story of black trials concerns an especially vital aspect of the history of group inclusion, because the minority community whose status has been of the greatest consequence for the development of our society as a whole ... has been Afro-Americans." Although Weiner explored archives for a few of his pre-1900 chapters, the book is largely a distillation of other research, with exegeses of events ranging from well-known to relatively obscure.

Weiner identifies three prominent ideological threads that run throughout black history. First, he concentrates on the strong appeals to liberal individualism that have flourished in the nation since the colonial era. Second, he imports the Indian notion of caste to describe the racial hierarchy that whites erected by enslaving blacks and deeming them impure. Third, he stresses the importance of understanding how Christianity shaped the nation's ideals and played a central role in debates concerning the status of blacks. Ultimately, Weiner's book is a study of the diminution of America's racial caste system, as seen through the prisms of liberalism and Christianity.

Weiner complicates the relationship of caste to liberalism and religion by noting that the ideologies contain internal divisions. Although the rhetoric of liberal individualism had been in circulation since well before the country's inception, whites denied blacks liberty and justified their enslavement by deciding that liberalism's protection of property interests dictated that government should refrain from interfering with a white man's property -- including his slaves. One can perhaps best locate the jurisprudential tension within liberalism in Chief Justice Roger Taney's opinion in Dred Scott v. Sandford in 1857: "The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit from the trader were supposed to need protection."

Just as liberalism has been enlisted to support both the subjugation and the liberation of blacks, so too has Christianity performed double duty. Invoking the principles of racial caste, white Christians used Scripture to contend that blacks could not become full-fledged Christians because they were descended from Ham. Judges openly expressed such beliefs at least into the 1950s, as evidenced by a little-known decision of the Florida Supreme Court that served to delay the integration of the University of Florida's law school. "When God created man," reasoned Justice Glenn Terrell's concurring opinion in State ex rel. Hawkins v. Board of Control in 1955, "he allotted each race to his own continent according to color, Europe to the white man, Asia to the yellow man, Africa to the black man, and America to the red man, but we are now advised that God's plan was in error." In sharp contrast to Terrell's analysis, Weiner notes that Christians also served to galvanize "some of the most important drives toward civic egalitarianism and reform in American history, and it was their opposition to racial hierarchy -- based on the principle that all are one in the body of Christ -- that was to transform the modern Christian outlook on matters of race and ethnicity."

Weiner contends that in the twentieth century liberalism emerged triumphant from among these ideologies. "During the course of American history, advocates of black civic inclusion would use the rhetorical weapons of Christian and liberal jurisprudence to oppose the caste vision of black legal incapacity born of slavery," Weiner writes. "Over the centuries, Afro-Americans and their allies won this fight, destroying caste theories of citizenship, a victory of which our society can justly be proud." In Weiner's account, appeals to the nation's religious foundation receded as liberalism flourished: "The terms of the victory, however, were not only to draw a liberal notion of citizenship more deeply into the heart of American national identity, but also to marginalize the Christian legal vision long central to the fight against caste."

Weiner concludes his book by contending that the American caste system met its demise by the close of the twentieth century. He makes a somewhat surprising claim in identifying Clarence Thomas's confirmation hearings as an associate justice of the Supreme Court as the central moment that illustrated caste's defeat: according to Weiner, the parade of impressive black professionals before the Senate Judiciary Committee, coming in support of both Thomas and Anita Hill (who had accused him of sexual harassment), humanized African Americans in a way that nothing previously had done. The casual acceptance of cross-racial friendships and Thomas's interracial marriage indicated the abatement of notions concerning white purity. Although both parties deployed the rhetoric of racial caste, Weiner argues, the ubiquity of such talk underscores the absence of the ideology itself. When the nation tuned in to watch the hearings, the question was "not the rightness of black inclusion in American civic life, but rather how best to achieve it."

Weiner's commitment to his intellectual framework is unmistakable, but it seems clear that narratives of personal bravery are what most excite him. The episodic approach to history permits Weiner to place great weight on individuals overcoming difficult circumstances. And Weiner is excellent at spinning these yarns. He creates genuine drama when he details the ordeal of Prudence Crandall, who subjected herself to abuse from New England townspeople because she had the temerity to admit a young black woman into her school in the 1830s. Weiner is palpably awed by the courage of Clem Bowden, a sixty-one-year-old black farmer who managed to testify against the Ku Klux Klan before a congressional committee in the 1870s after the local chapter of terrorists attempted to discourage him from participating in the democratic process. Weiner is also quite strong in detailing how Judge J. Waties Waring, once the very embodiment of South Carolina's ruling class, turned himself into an outcast in the early 1950s by holding the untimely view that the Constitution prohibited school segregation.

At his best, Weiner adopts a clear-eyed and unromanticized approach to black history, one that is all too often lacking in the field. Regrettably, many writers of black history seem as if they should replace their pens with pom-poms. Writing history, of course, invariably requires making choices that advance a particular narrative, but these choices should not involve ignoring inconvenient facts that might place a few black people in an unflattering light. By sanitizing events in an effort to prove that blacks are not somehow subhuman, historians, often unwittingly, overcompensate in the opposite direction and make them appear superhuman.

To his credit, Weiner does not flinch from delivering truths that help to humanize rather than valorize the character of African Americans. Blacks have sometimes been courageous and selfless, but -- just like every other group of humans -- they have also displayed less high-minded ideals. So, in Weiner's account, Africans actually sell other Africans into slavery, and one of the Scottsboro Boys, Clarence Norris, falsely testifies that a rape had occurred in an effort to exonerate himself: "I saw that negro just on the stand, Weems, rape one of those girls. I saw that myself.... I did not go down in the car and I did not have my hands on the girls at all, but I saw that one rape her. They all raped her, every one of them." Weiner's candid discussion of these episodes demonstrates a fine appreciation of historical ambiguity.

Weiner is particularly strong when dismissing the claims of some scholars who contend that the status of blacks in America over the last half-century has been marked more by continuity than by change. "The memory of Jim Crow is fading so rapidly ... that today one sometimes hears otherwise sensible people, keen to improve our society, equate the racial inequalities of our own time with those of America before World War II, or during the 1950s and 1960s," Weiner observes, with appropriate contempt for the view that nothing has changed. "It is not an uncommon view, and however preposterous it may be, the moral power it is accorded, with the best of intentions, ensures it some longevity." The nostalgia for certain aspects of life in the Jim Crow era espoused by a number of vocal black scholars is an alarming trend that Weiner's history ably counteracts.

Weiner also makes whites prominent in his telling of black history. Though he often casts whites in the role of villain, he is unapologetic about portraying them as heroes in the quest for black citizenship. One of the central debates among scholars of African American history over the last seventy-five years has concerned how much historical agency should be imputed to blacks before the age of civil rights. (The debate has been most pronounced with respect to historical treatments of slavery, but echoes of that debate have reverberated throughout the study of black history.) For a long period, historians viewed blacks largely as the pawns of white abolitionists and their ilk -- as bit players in the story of their own liberation, since freedom was something conferred on them rather than attained by them. This view was rightly seen as being woefully in need of revision. Eventually the pendulum swung in the other direction, and historians now stress the strategies of resistance that blacks utilized in seeking their own liberation during slavery and how they later accomplished the central objectives of the civil rights movement. Weiner enjoys only limited success at carving out some sustainable middle ground in this debate. But his book is admirable in its aims, and he is right to insist that one cannot tell the story of the struggle for black citizenship without understanding that whites aided in that struggle.

Weiner's book would be stronger still if he were more willing to challenge the received wisdom about a number of the Supreme Court justices who are his subjects. In his discussion of the leading anti-canonical case in all of American law, Weiner observes that "the ringing endorsement of slavery they produced was written by Chief Justice Roger Brooke Taney of Maryland, one of the most respected jurists of his time (and, despite Dred Scott, still one of the great justices in the history of the Court)." Despite President Bush's condemnation of Taney's most infamous opinion in a recent presidential debate, Weiner enjoys good company in asserting Taney's greatness, an assessment chiefly attributable to his stewardship of the Court through the nation's adolescence. In 1936, no less a personage than Felix Frankfurter termed Taney "second only to [Chief Justice John] Marshall in the constitutional law of our country."

But Frankfurter's praise reflects more the contemporaneous debates regarding judicial restraint than it does an accurate assessment of Taney's legacy. Important as some of his decisions on federalism were, Taney may be viewed as largely a transitional figure. And his record is irrevocably marred by his repeated mishandling of the most pressing and most primary issue of his time. It is too clever to dismiss his opinions in Prigg v. Pennsylvania, Strader v. Graham, and Dred Scott as mere blind spots. When it mattered most, Taney's opinion failed as law, failed as history, and failed as morality.

Weiner also offers an overly sanguine assessment of Justice John Marshall Harlan's dissent in Plessy v. Ferguson in 1896:

A southerner by birth and a former slaveholder (though a Unionist and colonel in the northern army during the Civil War), Harlan was by early training no racial egalitarian; he had once opposed the Thirteenth Amendment. Yet he underwent a true political conversion after the war and, whatever his continuing views on social equality and his racial pride, came to believe that blacks were fully entitled to the inclusion in American civic life enunciated in the Reconstruction Amendments.
Although Weiner highlights the celebrated portions of Harlan's Plessy dissent, he gives no further attention to the idea buried in the dependent clause of that last sentence. Using the euphemism "racial pride" does nothing to mitigate Harlan's championing of white supremacy. In addition to an ugly aside about the fundamentally alien nature of "the Chinese race," Harlan wrote: "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time."

The point is not to demonstrate that Harlan's opinion is incompatible with modern racial attitudes. Vilifying racial prejudice from the 1890s offers considerably less sport than shooting fish in a barrel; and, more importantly, it is an aggressively anti-historical endeavor. Today's conventional wisdom, moreover, has a way of becoming tomorrow's bigotry. But confronting headlong the contradictory impulses and complexity in Harlan's dissent permits a deeper appreciation of his forward thinking on civic equality. Instead of eliding that complexity, Weiner should have embraced it.

And Weiner repeats the tired argument that Justice Thomas's opposition to affirmative action amounts to hypocrisy because he benefited from such programs in the past. This claim has roughly the same amount of force as the argument that John Kerry's support of a progressive tax structure is hypocritical because a person of his wealth has benefited from tax cuts. Being a beneficiary of a particular system does not compel one to endorse that system. Both Thomas and Kerry criticize programs that they view as unjust and unwise, and there is no reason to doubt the sincerity of either man's convictions. Proponents of affirmative action would do better to engage Thomas on the merits of the argument rather than continue this seemingly endless game of biographical gotcha.

At times, Weiner places more weight on religion's role in motivating change than it can credibly be expected to bear. His discussions of the resolve that prompted Prudence Crandall and John Brown to resist social norms illustrate his overly reverent approach to Christianity. "Despite its obvious difficulties," Weiner writes, "the prospect of enrolling a black student must have appealed to Crandall's heart from the first. After all, she had been raised by Quakers, the first religious group in history to prohibit slaveholders among its members." Similarly, Weiner's treatment of John Brown begins: "Born in 1800 in West Torrington, Connecticut, John Brown was taught to honor his parents and to fear God. His mother was the daughter of a Congregationalist minister...."

Such an account resolves the matter of motivation a bit too tidily. While it is true that evangelical faith ran quite high in the mid-eighteenth century, few people then -- like few people now -- willingly endangered their lives for the advancement of a despised group. The motives of human action are compound and mysterious. Admittedly, Brown thought that he was a messenger from God, but it is not the claim of divine inspiration that set the violent Brown apart from his contemporaries. Indeed, Weiner's acknowledgment that faith was unimportant to some of the men who accompanied Brown on the Harpers Ferry raid should have prompted him to be more equivocal on the role of religiosity. If devoutly religious people are willing to tolerate oppression in their midst, it seems misguided to emphasize that it is religious fervor that motivated Crandall and Brown rather than a fervor to eradicate oppression.

Weiner is on shakier ground still in his discussion of the social science relied upon by the Supreme Court in Brown v. Board of Education. His focus on caste prompts him to read Chief Justice Earl Warren's decision as significant because it stressed the mental toll that segregation had inflicted upon blacks. "In the near term," Weiner remarks, "[Brown] was an acknowledgment, for the first time, that the Afro-American self had been psychologically damaged by the perverse logic of the law." Accordingly, Weiner aims to extol Brown's sociologically driven Footnote 11 and more generally the work of Kenneth B. Clark.

In conjunction with the South Carolina component of Brown, Clark conducted a test on sixteen black schoolchildren in which he presented them with images of a black doll and a white doll and asked a series of questions, including: which doll is nice? Which doll is bad? Which doll looks like you? The answers to these questions supposedly indicated that the black schoolchildren experienced feelings of racial inferiority. Weiner describes Clark and his work in glowing terms: "Clark was a scholar destined for great renown, and an intellectual whose research flowed naturally from the currents in social science and political thought characteristic of his time." And he labels the doll study an "emblem of Brown itself" and calls the social-science statement submitted to the Court "a statement still celebrated in academic circles for the social good it brought." Indeed, Weiner believes that the doll studies supplied the broad contours of the opinion in the school desegregation decision: "In the way those studies explained the interaction between culture and the self in the world of Jim Crow, they paralleled the very bridge between the self and the state that Brown hypothesized in its interpretation of the Fourteenth Amendment."

While it is true that Clark's social science became an emblem of Brown, his work enjoys nothing approaching the universally rosy reception that Weiner's gushing account suggests. Many contemporary observers thought that Brown was too important and delicate a decision to rest on the vagaries of doll preferences. The Court had been developing precedents on desegregating higher education in the years prior to 1954; those decisions and their animating principles should have been sufficient justification to outlaw segregated schools. Even key members of the legal team dedicated to ending school segregation took a dim view of introducing Clark's evidence. "Of all the debunkers, I was the most debunking," William T. Coleman Jr. allowed in Richard Kluger's definitive account of Brown. "Jesus Christ, those damned dolls! I thought it was a joke."

Beyond the concerns about the introduction of sociological materials into a trial record, many commentators had legitimate concerns about the methodological quality of Clark's work. Sixteen schoolchildren is far too small a sample size from which to extrapolate. In addition, Edmond Cahn wrote in 1955 that Clark's work betrayed a foreordained view of the student responses: "If Negro children say a brown doll is like themselves, [Clark] infers that segregation has made them conscious of race; yet if they say a white doll is like themselves, he infers that segregation has forced them to evade reality."

Even ten years after Cahn noted this important methodological flaw, Clark continued to make precisely the same mistake in logic. Consider this passage from his most lasting work, Dark Ghetto:

The preoccupation of many Negroes with hair straighteners, skin bleachers, and the like illustrates this tragic aspect of American racial prejudice -- Negroes have come to believe in their own inferiority. In recent years Negro men and women have rebelled against the constant struggle to become white and have given special emphasis to their "Negroid" features and hair textures in a self-conscious acceptance of "negritude" -- a wholehearted embracing of the African heritage. But whether a Negro woman uses hair straightener or whether she highlights her natural hair texture by flaunting au naturel styles, whether a Negro man hides behind a neat Ivy League suit or wears blue jeans defiantly in the manner of the Student Nonviolent Coordinating Committee (SNCC), each is still reacting primarily to the pervasive factor of race and still not free to take himself for granted or to judge himself by the usual standards of personal success and character.
Clark had many virtues, but conducting rigorous social science was not among them. It is folly to believe that the Supreme Court owes one of its greatest achievements to his work.

Is caste dead? Weiner's analysis leads ineluctably to this question. The answer, of course, is that it all depends on what you mean by "caste." Weiner is not as direct as he might have been on this score, but it is clear that he does not use the term synonymously with racism. Weiner understands that racial prejudice continues to have real consequences. He seems to believe that caste is dead because repulsion is no longer the most prominent feeling that most whites have toward blacks. Under this exceedingly modest claim, Weiner has a point.

But as he expands upon this claim, his description of the modern racial landscape appears myopic. "The destitution of the ghetto affects far more than those who live there," Weiner writes. "The criminality its conditions breed has tended to stigmatize all blacks with an association with violence and lawlessness -- caste is dead, but black legal exile is not -- a phenomenon that has substantially hindered their full assimilation into mainstream civic life, despite their collective social and economic accomplishments." This is much too simple. Whatever the association with criminality that is projected onto middle-class African Americans, anti-black attitudes are more pervasive and more fundamental than Weiner's analysis permits.

Weiner's account may explain the familiar tale of black professionals who have difficulty hailing cabs. Yet transportation woes are the least of the black professional's concerns. Far more troubling is the lingering skepticism about the cognitive capacity of blacks. It is in these speculations -- not about poor blacks, but about all blacks -- that traces of racial caste are most readily identifiable. Only ten years have passed, remember, since the publication of The Bell Curve.

"From a historical perspective," Weiner declares, "careers like those of Vernon Jordan, Colin Powell, Condoleezza Rice, and Clarence Thomas, and their complete acceptance in the most prominent roles of the national elite, signals a true revolution in America. Caste, the white republic, a world of white purity and black pollution, is dead." But surely the acceptance of African Americans is not nearly as complete as Weiner would have it. Consider the case of Clarence Thomas. His judicial opinions on voting rights and the establishment clause demonstrate that he is far and away the current justice most willing to rethink entire doctrinal areas if he believes that a line of cases warrants a novel approach. Despite this independence of thought, Thomas is often depicted as Justice Antonin Scalia's one-man amen corner, a portrayal eerily reminiscent of the power that Justice William Brennan supposedly exercised over Justice Thurgood Marshall. Though several pairs of justices generally vote together, no white justice has been perceived to be so thoroughly in the hip pocket of another justice in the Supreme Court's modern era. This perception suggests a deep reluctance to view black jurists as capable of developing their own juridical philosophies.

Conditions for African Americans have improved dramatically in the last forty years. Thanks to the achievements of the civil rights movement, there has never been a better time to be black in America. This is worth remembering, not least because the story of black progress has not exactly been a tale of manifest destiny. The trend has been generally upward, but each decade has not always been better than the one preceding it. If caste is dead, the remnants of caste continue to exercise a powerful hold on the nation's consciousness. While some blacks are no longer deemed untouchables, they too often remain undesirables.

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