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Katherine M. Franke
excerpted from: Katherine M. Franke, Becoming a
Citizen: Reconstruction Era Regulation of African American Marriages ,
11 Yale Journal of Law and the Humanities 251-309, 251-258, 307-309
(Summer 1999)
While many Black people regarded slavery as a form of social death,
some nineteenth-century white policy-makers extolled the virtues of
slavery as a tool to uplift the characters of Africans in America:
"[Slavery in America] has been the lever by which five million
human beings have been elevated from the degraded and benighted
condition of savage life . . . to a knowledge of their responsibilities
to God and their relations to society," observed a Kentucky
Congressman in 1860. These sentiments were echoed by abolitionist
northern officers not three years later when the institution of marriage
was lauded for its civilizing effect on the newly freed men and women:
"[Marriage] is the great lever by which [the freed men and women]
are to be lifted up and prepared for a state of civilization."
With an increasingly heterogeneous population in the United States,
nineteenth-century social reformers considered it their project to lift
uncivilized people up from a natural savage state and mold them into
proper citizens. Institutions such as slavery and marriage provided
these reformers with a domesticating technology or lever that could pry
the uncivilized apart from their savage ways.
Of course, African Americans experienced these institutions very
differently. If slavery was a kind of social death for Black people in
the United States, then Reconstruction held out the promise of social
rebirth--rebirth as enfranchised citizens and rights holders. During the
period after the Civil War, Black people in the United States celebrated
the rightto alienate their labor, own property, and participate in the
institutions of civil and public society that were considered
fundamental to a good and free life. The right to marry figured
prominently among the bundle of rights African Americans held dear in
the postbellum years.
Because the status citizen had both legal and moral content for
nineteenth- century republicans, the transition of Black people from
slave to citizen was not something the larger culture regarded as
self-executing upon ratification of the Thirteenth and Fourteenth
Amendments to the Constitution. Rather, even to progressives of this
era, citizenship was something that had to be cultivated in Black
people. In this Article, I will show how the institution of marriage was
viewed as one of the primary instruments by which citizenship was both
developed and managed in African Americans.
Antebellum social rules and laws considered enslaved people morally
and legally unfit to marry. They were incapacitated from entering into
civil contracts, of which marriage was one, and were regarded as lacking
the moral fiber necessary to respect and honor the sanctity of the
marital vows. Nevertheless, many slave couples lived together as husband
and wife after undertaking wedding celebrations as simple as jumping
over a broomstick, or as elaborate as a "Scripture Wedding,"
or grand banquet thrown for the entire community. These couples
considered themselves married before the eyes of God, the community,
and, in some cases, their owners. But of course they were not married in
the eyes of the law.
For many newly freed slaves in the latter half of the nineteenth
century, the ability to marry was a powerfully important aspect of
freedom and of acceptance into civil society. Black people celebrated
the transition from marriage-in-fact to marriage-in-law, but the
transmogrification of the civil and legal status of African Americans'
intimate relationships was not bereft of both unintended and tragic
consequences. Close attention to the records of this era reveals the
paradox of legal recognition and regulation, and draws into question the
fiction of a rights discourse that fixes as victory participation in
institutions such as marriage.
African Americans did not enter civil society on their own terms and
accompanied by their own values, but rather did so on the non-negotiable
terms set by the dominant culture. Those who sought to enjoy the
benefits of legal marriage according to pre-existing Black community
norms--norms that were more fluid and more communal than that of white
culture--were harshly punished, disciplined, and thereby domesticated by
postbellum laws in ways less severe than, but not dissimilar to,
antebellum laws.
The experiences of formerly enslaved people in the immediate
postbellum period illustrates something quite important, and by no means
unique to African Americans, about the relationship between civil rights
and state regulation. The abolition of slavery is commonly understood to
have accomplished both an escape from coercive state control and a grant
of autonomy and rights. Yet, for African Americans, the ability to
exercise these new rights merely inaugurated a different relationship
with the state. Rather than escaping from the coercive power of the
state, the newly emancipated former slaves encountered the state in new
institutional garb. Marriage, I will argue, provides the best--albeit
not the only--example of the degree to which African Americans had to be
"domesticated" before they could be admitted into society as
full citizens.
In many important respects, contemporary civil rights struggles must
be understood as the legacy of the battles won and lost by and on behalf
of African Americans in the Reconstruction era. Civil rights movements
inevitably formulate both inequity and freedom in rights-based terms:
the right to contract, to own property, to racially-integrated
education, to privacy, to vote, to speak Spanish, and to marry a person
of a different race or of the same sex. The emancipatory force of
rights-based claims made on behalf of subordinated groups remains
relatively unquestioned in modern liberatory discourses within the
academy as well as in practical political and legal domains.
Rights-based strategies have retained this stature notwithstanding
sustained, principled critiques from various shores. Without attempting
to rehearse the now well-known critiques and defenses of rights made
elsewhere, yet mindful of the difficult problems these conversations
have raised, I want to interrogate a paradox lurking in virtually all
modern civil rights movements. The struggles of abject groups to emerge
from the obscurity of the legal margins into the mainstream of civil
society often materialized through demands for legal recognition by the
state, and inclusion in the dominant legal and political institutions of
society. Marriage is a good example, but surely not the only one.
Ignored in these struggles is the degree to which these institutions are
highly regulatory in nature: They are the sites in which the state is
actively involved in creating social and legal statuses for both men and
women in highly raced and gendered terms. Thus, an institution like
marriage accomplishes a kind of colonialism by domesticating more
"primitive" sexuality. Insofar as "sexuality . . .
provides the principle categories for a strategic transformation of
behavior into manipulable characterological types," husbands and
wives--the primary adult units of civilized society--are the product of
this cultural positioning. The process by which previously enslaved men
and women became free husbands and wives reveals a great deal about the
manner in which the assertion of rights initiates regulation by a
"bureaucratic juridical apparatus" even as those rights are
asserted as a means of liberation.
What tends to be obscured in marriage-based civil rights strategies
is the manner in which abject status is exchanged for that of civil(ized)
subject, tamed by the disciplinary technology of public marital norms.
Civil rights, it becomes clear, come at a price:
Historically, rights emerged in modernity both as a vehicle of
emancipation from political disenfranchisement or institutionalized
servitude and as a means of privileging an emerging bourgeois class
within a discourse of formal egalitarianism and universal citizenship.
Thus, they emerged both as a means of protection against arbitrary use
and abuse by sovereign and social power as a mode of securing and
naturalizing dominant social powers--class, gender and so forth. Wendy
Brown poses the problem as follows: "When does identity articulated
through rights become production? When does legal recognition become an
instrument of regulation, and political recognition become an instrument
of subordination?"
Primary archival evidence as well as postbellum legal opinions
demonstrate that African Americans who emerged from slavery to
participate freely in society were transformed in subtle and not so
subtle ways into the kinds of citizens upon which southern society
depended at that time. Historian Nancy Cott claims that "[o]ne
might go so far as to say that the institution of marriage and the
modern state have been mutually constitutive." Without question,
African Americans have been called upon, and often coerced, to play a
role in nation-building at different times in different ways. The
evidence I discuss below demonstrates the extent to which matrimonial
laws and norms afforded African American people social and economic
benefits that had been previously foreclosed to them, but on the
condition that African Americans abide by the race- and gender-based
rules of bourgeois culture. Moreover, the complex way in which African
Americans were inducted into the regulatory regime of marriage can be
explained by reference to the felicitous convergence of the interests of
Blacks and white males. White men had their own stake in Freedpeople's
adherence to marriage laws wholly independent from any altruistic
concern for Black civil rights or personal sovereignty.
In Part II, I discuss the various ways in which enslaved people
organized their intimate sexual relationships. I examine secondary
materials discussing the nature of slave society, as well as Freedmen's
Bureau reports and war widow pension applications containing transcripts
of interviews with formerly enslaved women in which they discuss the
kinds of relationships maintained by enslaved Black people. These
materials reveal that while many enslaved people preferred to live as
husband and wife, thereby making life- long, monogamous commitments to
one another, slave communities acknowledged other acceptable
arrangements: "taking up," "sweethearting," living
together, and trial marriages. Couples who took up or were sweethearts
were not necessarily monogamous, although they could be. It was
acceptable for enslaved women to bear children in all manner of
relationships. These primary and secondary materials indicate that slave
societies permitted a range of sexual relationships for their members.
After emancipation, formerly enslaved people were granted the right
to marry legally. An array of laws were passed legitimizing both slave
marriages and the children that had been born to enslaved parents. In
Part III, I explore the ways in which formerly enslaved people were
folded into civilized and free society through their inclusion in the
institution of marriage. It cannot be denied that many African American
people had lived as husband and wife while enslaved. The legitimization
of their relationships did little to affect the form of those
relationships. However, I show that for a significant number of former
slaves, legal marriage was not experienced as a source of validation and
empowerment, but as discipline and punishment when the rigid rules of
legal marriage were transgressed, often unintentionally. Thus, the
robust enforcement of bigamy, fornication, and adultery laws served to
domesticate African American people who were either unaware of, or
ignored, the formal requirements of marital formation and dissolution,
or who chose to conduct their intimate sexual relationships in ways that
fell outside the matrimonial norms of Victorian society. In the end, the
efforts of African Americans to maintain a spectrum of intimate sexual
relationships in the postbellum period had to give way to the dictates
of positive marriage laws. Part III shows how the process of becoming
husbands and wives was not a benign one whereby the state lent its
imprimatur to autonomous, self-defining couples, but rather was coercive
in nature: Previously acceptable behavior was punished and the
regulatory force of the state was invoked so as to mold the newly freed
slaves into citizens. These cases illustrate "public authority
using marriage policy to create a social order" and to create
proper citizens.
The right to marry that African Americans enjoyed in the postbellum
period must be understood within a cultural context in which marriage
and the family were institutions employed by the larger culture to
promote certain social and economic values. Reform of the law of
marriage during this period played a key role in advancing these
agendas. In Part IV, I argue that African Americans were granted the
right to marry at precisely the moment when that right was being
radically transformed in such a way that the public interest in marriage
took priority over private interests in the creation of autonomous
intimate partnerships. In this Part, I provide an account of the
implications of the prosecution and incarceration of African
Americans--more often men than women-- for violating laws regulating
matrimonial morality. The aggressiveness with which African American men
were prosecuted for matrimonial deviance can be seen as an epiphenomenon
of changes in white masculinity and agency that were taking place in
postbellum industrializing America more generally. If the integrity of
white male agency could no longer be anchored as the antinomy of Black
chattel slavery, since all men were now, at least in theory, free market
actors, then white masculinity required new ground against which to be
set off. This task was complicated by the fact that wage laborers in the
Gilded Age were in a famously weak position to negotiate with
industrialists over wages and working conditions. Thus, as Nancy Cott
and Amy Dru Stanley have argued, white men needed to construct a new
domain other than slavery against which to contrast masculine agency.
Marriage and the domestic sphere of the feminine became that fiction. It
would have been calamitous for African American men to be able to opt
out of this important regulatory regime. Thus African Americans entered
the domain of marriage just as its institutional boundaries became
heavily freighted in new ways.
This Part concludes with the observation that the use of criminal
prosecutions accomplished the disenfranchisement of Blackmen and
supported the creation of a criminal leasing system in which Black male
prisoners were leased out to white planters to work the fields under
conditions that were, in many respects, worse than those during slavery.
Thus, winning the right to marry was a source of great celebration as
well as great suffering for many African Americans in the postbellum
period. This is hardly surprising, given that it did not take place in
isolation from the material and symbolic interests of the larger
Victorian culture.
. . .
This history illustrates the problem of treating the right to marry
as an unproblematic civil rights victory and in treating
"slavery" and "liberty" as antinomous terms. While
the right to legally marry brought significant economic, legal, and
psychological benefits to freedpeople, there were also harmful
consequences. The larger Victorian society had its own agenda, that the
freedpeople did not share, and that worked to the detriment of African
American men and women. These agendas were advanced in part through the
use of marriage laws. Some at the time believed that the glory of the
right to marry was that the slave master no longer functioned as the
head of the African American household. While this was true, it did not
mean that African American men and women enjoyed the kind of matrimonial
autonomy often portrayed in romanticized accounts of this period.
Rather, the state stepped in to regulate the form and structure of
African American intimate relationships in ways that coerced freedpeople
to participate in the re-imagination of masculine agency by conforming
to republican family norms while at the same time appropriating their
labor in order to repair and industrialize the postbellum southern
economy.
My aim has been to demonstrate the complexity of rights discourses in
movements for personal and political emancipation. Rather than simply
liberating a people to make autonomous decisions free from state-imposed
constraints, the granting of rights signals the inauguration of a new
relationship with the state. Rights both shape political culture and
produce political subjects. In the postbellum era, African Americans
acquired an identity as rights holders and entered the
"bureaucratic juridical apparatus" through which those rights
were negotiated. Wendy Brown frames this dynamic in the following way:
"Rights . . . may subject us to intense forms of bureaucratic
domination and regulatory power even at the moment that we assert them
in our own defense."
Frederick Douglass once said that freedom cannot be given, it must be
seized. An examination of the relationship of the newly freed slaves to
the state during Reconstruction suggests that citizenship cannot be
seized but must be cultivated. Marriage laws were expressly deployed by
the larger culture to discipline African Americans who failed to
"act like citizens." As Laura Edwards observes,
[w]ithout the moral influence of marriage, many white legislators and
editorialists maintained, freedpeople would never take responsibility
for themselves and their families. Completely ignoring the state's
complicity in denying legal marriage to enslaved people, white
commentators cited its absence as further evidence proving the
immorality and irresponsibility of exslaves.
This is not to say that we should abandon rights-based struggles
altogether. Instead, we should appreciate the inherent complexities that
lie in such strategies. The award of rights must not be regarded as the
telos of any social movement but instead as a new location from which to
negotiate state power and the production of political identity for
individuals and groups. Again, Wendy Brown has adroitly described the
degree to which rights strategies cut two or more ways,
"naturalizing identity even as they reduce elements of its stigma,
depoliticizing even as they protect recently produced political
subjects, empowering what they also regulate."
Typically, the exclusion from an institution on racial or other
similarly suspect grounds provokes demands for justice articulated in
terms of equal access to that institution. The experiences of African
Americans in the postbellum era demonstrate how a demand for
institutional access must be accompanied by a critique of the
institution to which access is being sought. This critique must include
an analysis of the way in which the state always retains the power to
manipulate participation in an institution in ways that may be at odds
with the interests of new rights holders. The experiences of African
Americans in the immediate postbellum era illustrate well this paradox
of simultaneous identity, empowerment, and regulation. And it holds
lessons for contemporary rights-based movements in which the right to
marry is held out as an intrinsic good, the enjoyment of which is
regarded uncritically as an advance in the cause of equality and
freedom. |
