As America’s rule of law is threatened, Black history holds lessons

Former President Donald Trump, who is currently charged with over 90 criminal counts for attempting to overturn election results, recently claimed that the discrimination he feels he has received from the legal system is the same thing Black Americans have encountered in the eyes of the law, saying “What’s happening to me, happens to them.”

But unlike Trump and his enablers, who react to perceived injustice against him by undermining America’s rule of law and falsely denying the legality of the 2020 presidential election, UC Berkeley professor Dylan Penningroth says Black Americans, who faced real legal discrimination during slavery and segregation, overwhelmingly sought to reform the law, not overthrow it.    

“They didn’t violently storm the U.S Capitol,” said Penningroth, who teaches at Berkeley’s law school and in the history department. “When non-violent civil rights leaders like Thurgood Marshall and Martin Luther King Jr. stepped forward, they spoke in the language of law. They worked within the law and wanted to transform the laws to get America to live up to its creed. The question is: Why?”   

In his new book Before the Movement, Penningroth reveals the many ways that Black Americans, long before the Civil Rights Movement, navigated the law by asserting their rights — not through federal lawsuits charging racial discrimination, but through the ordinary tools of property, contract and the law of associations.                

In the 1800s, this is what “civil rights” meant, he said.

His book was partly inspired by family stories about Penningroth’s great-great-great-uncle and -aunt, Jackson and Louisa Holcomb, former slaves who in 1883 purchased 100 acres of farmland in Cumberland County, Virginia.   

With earnings from their tobacco crops, the couple bought, sold and mortgaged land, and by 1908 owned nearly 300 acres. Over time, they passed some of the land on to their children and relatives. They also sold parcels to Black neighbors and donated some to their local community and churches.    

Each of those actions was an exercise of civil rights.    

“I started to think, ‘How was this possible?’” said Penningroth, who is also Berkeley’s associate dean of the jurisprudence, social policy and legal studies program. “Were they the exception, or was this a common practice that had been left out of the mainstream narrative of African American history?”   

Shared agreements, and a shared history

To find answers, Penningroth delved deep into the basements of county courthouses across five states and the District of Columbia. He copied entries from heavy, clothbound docket ledgers, files of corporate registries, and folded-up trial testimony handwritten on paper that had sometimes been chewed away by vermin.   

His research revealed that Black Americans before the 1960s constantly used law for their benefit, and talked about it in their everyday lives.

Penningroth found examples from as early as the 1800s of enslaved people making shared property agreements with their enslavers that, over time, became “prescriptive rights.” Penningroth’s ancestor Jackson Holcomb, while still enslaved, owned a boat and was paid to ferry people, including Confederate soldiers after the Battle of Richmond in 1865, across the Appomattox River.   

By 1860, over 16,000 free Black southerners owned property that would have been worth nearly $9 billion in 2021. Penningroth said Black homeownership kept rising after the Civil War, peaking in 1910 with over 500,000 families owning more than 15 million acres of land, nearly all of it in the South.   

“White people liked to think of rights as divided into three buckets: political, social and civil rights,” said Penningroth. “When it came to political rights, like voting, or so-called social rights, like the right to ride a train or go to a theater, Black people were segregated. But their civil rights of property and contract could not be segregated in the same way.”    

“The law wasn’t colorblind, and it didn’t treat Black people equally. But whites found it was easier to padlock the rail car and voter rolls than the deed books or even the courts.” 

More than race relations   

This long history of Black legal activity did not challenge the Jim Crow system, Penningroth said, at least not overtly.    

When Black people went to court, it was nearly always against another Black person. But Black history is about more than race relations, Penningroth said. “Black people did not spend all their time thinking about white people. There were 99 other things on their minds that had to do with their family, community and their futures,” he said. “They were negotiating over things they cared about and remaking their relationships with each other.”   

Penningroth said his book amplifies a side of Black life that really hasn’t gotten much attention and is often overshadowed by the mainstream historical narrative of the Civil Rights Movement.

“But it is a part of history that we all can learn from,” he said. “Black people had rights before the movement. And that long history of using and talking and thinking about law laid essential groundwork for the Civil Rights Movement.”    

That history helps explain why, when voting rights activists showed up in the 1960s, so many Black people decided to put their faith in the rule of law, Penningroth said.    

“And it rebukes former President Donald Trump’s message that white people are in danger of losing their rights and should violently defy the law and the Constitution if they do not get their way.”