Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South

Abstract

In 1971 I published a history of the way government officials used the law to suppress black protest but refused to use the law to protect blacks from assaults by whites. I concluded that in the United States, law and the Constitution reflect the will of the white majority to keep superior economic, political, social, and military power, while black people served as the mudsills of American Society.' Those words and the title of the book, Black Resistance / White Law: A History of Constitutional Racism in America, were a bit strong for some people, but that was at the end of the 1960s. Twenty years later, in 1991, I would probably be more polite and write something like, The legal system supports our capitalistic economic system. Because capitalism requires inequality, the only real question is who will be the repositories of the inequality. To date, black people have disproportionally been those repositories. Those words were meant to convey my understanding that in any society law reflects the will of the powerful. Usually, their will is to keep the power in their own hands. Most thinking people today would say that such remarks only state the obvious. Depending on who they are, some thinking people might discourage saying such things to the powerless, who might mobilize against the powerful. Law is a wondrous thing to behold when it works in favor of a cause we care about, when we see our power extended in the world. Law, however, is a monstrous thing when it weighs in on the other side. In a period of retreat on human rights issues, when the fight for social justice is not popular, the law is too often monstrous. Here I have focused on the law as it expressed the will of those who exercised authority at another time when another great struggle, which bore much progressive fruit,