Race, Place, and the Law, 1836-1948

[ African American Studies ]

Race, Place, and the Law, 1836-1948

By David Delaney

This historical investigation yields new insights into the patterns of segregation that persist in American society today.



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6 x 9 | 239 pp.

ISBN: 978-0-292-71597-4

Black and white Americans have occupied separate spaces since the days of "the big house" and "the quarters." But the segregation and racialization of American society was not a natural phenomenon that "just happened." The decisions, enacted into laws, that kept the races apart and restricted blacks to less desirable places sprang from legal reasoning which argued that segregated spaces were right, reasonable, and preferable to other arrangements.

In this book, David Delaney explores the historical intersections of race, place, and the law. Drawing on court cases spanning more than a century, he examines the moves and countermoves of attorneys and judges who participated in the geopolitics of slavery and emancipation; in the development of Jim Crow segregation, which effectively created apartheid laws in many cities; and in debates over the "doctrine of changed conditions," which challenged the legality of restrictive covenants and private contracts designed to exclude people of color from white neighborhoods. This historical investigation yields new insights into the patterns of segregation that persist in American society today.

  • Preface
  • 1. Orientations
  • 2. Geographies of Slavery and Emancipation
  • 3. Legal Reasoning and the Geopolitics of Nineteenth-Century Race Relations
  • 4. The Geopolitics of Jim Crow
  • 5. The Reasonableness of Jim Crow Geographies
  • 6. Restrictive Space and the Doctrine of Changed Conditions
  • 7. Epilogue
  • Notes
  • Bibliography
  • Index

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This book is about two aspects of social reality in the United States and their relationship. The first aspect concerns the central position that geography has occupied in the unfolding dynamics of African American history. More specifically, it examines the significance of conflicts over space in the historical politics of race relations between blacks and whites. By geography I mean, as a first approximation, the shifting arrangements of social space, the creation and transformation of real places, and the differing experiential geographies of real people. Mine is an interpretation of the importance of geography to U.S. history that, I believe, has not been offered before. Its value is in relating otherwise separate events in a common story. I hope that in illuminating the complex connections between space, power, and experience that are at the heart of this story, we will come to understand better the ways in which the worlds we live our lives in have been racialized.

The second aspect concerns the involvement of a specialized but highly significant set of social practices in the historical geopolitics of race and (antiblack) racism. These are the practices associated with formal legal argument and judgment. To refer to legal argument—the creation and manipulation of legal meaning through procedures known as legal reasoning—as a social practice is to recognize it simply as something that people do. It is an activity, a craft, a practice. In studying the role played by legal reasoning in the construction and revision of inherited geographies of race and racism, we can see how a certain sort of meaning has been inscribed onto lived-in landscapes. We can see how the spatial configurations that reflect and reinforce racist ideologies have been justified as right, reasonable, and preferable to other arrangements. We can also see how these geographies have been challenged, criticized, and occasionally reshaped by these same legal practices. But, as we will see, the point of argument is usually not simply to justify or critique; the point is to make something happen. The point is to actually change the world (or to prevent change) by enlisting the power of law.

Chapter 1 provides an orientation to the general themes that are developed and explored in subsequent chapters. Here I discuss ideas such as geographies of race and racism, the geopolitics of race, and the legal landscape. I also present a way of understanding legal practice as a kind of (geo)political practice. In the following five chapters these general notions are used to make sense of historical events.

Chapters 2 and 3 treat roughly the same period of time. Each also pivots on spatial, racial, and legal transformations wrought by the Civil War. Chapter 2 looks at the on-the-ground geographies of race that characterized and were integral to slavery in the United States and at the changes in these geographies that followed abolition. The main themes here are the politics of space and the shifting connections between space, power and experience. In chapter 3 we shift our focus to formal legal practice. Here, through an analysis of a series of cases directly concerned with the spatiality of race, we examine the moves and countermoves of attorneys and judges who were participating in the geopolitics of slavery and emancipation. Our principal theme here is the politics of the creation of legal meaning.

While chapter 3 analyzes a series of cases over a long period of time, chapters 4 and 5 focus on events leading up to a single case, Buchanan v. Warley. Chapter 4 looks at the phenomenon of classical Jim Crow segregation. We begin with a rather general exploration that focuses on the political significance of using law to shape social space in this way. This is followed by a closer look at the emergence of a popular social movement advocating something like municipal apartheid laws in many U.S. cities in the early twentieth century. Finally, we study in some detail how the politics of segregation and antisegregation played out in Louisville, Kentucky.

Like chapter 3, chapter 5 shifts from the messy world of politics and power to the seemingly controlled and reasonable world of legal argument. After analyzing how segregation ordinances were handled by various state courts I undertake a detailed examination of the briefs presented to the U.S. Supreme Court by both sides in the case of Buchanan v. Warley. These arguments reveal strikingly divergent views of the connections between space, race, and law. They also represent contrasting visions of desirable worlds. The arguments in Buchanan illustrate the different ways that the idea of race itself was understood by white people at the time. Particularly interesting for us is how connections between race, class, and sexuality were given expression in legal argument and how understandings of these connections were used to ground legal distinctions.

Chapter 6 again shifts to a different level of analysis, this time from a single case to a single doctrine—the doctrine of changed conditions—as it was developed in a number of cases in the thirty years following Buchanan. The focus of dispute in these cases was racially restrictive covenants or private contracts among white property owners that excluded people of color from most neighborhoods of U.S. cities in the twentieth century. Here I trace the micromoves of argument and the small increments of legal meaning that went into shaping the geographies of race and racism that we have inherited. Of some significance here are the ways in which political conflicts over social space were transformed into specialized debates about the spatiality of a rule. In a section on the judicial construction of place, which studies a series of cases all concerning a single neighborhood in Washington, D.C., I try to demonstrate how these micromoves and countermoves mattered to real people. Chapter 7 is an epilogue.

In the summer of 1836, a six-year-old girl from Louisiana known only to us as Med found herself in Massachusetts. We don't know much about her experiences in the North that summer or about what she thought of her journey. We do know that her impending return to the South generated a good deal of controversy. The reason was that in Louisiana Med was considered to be a slave—legally speaking, someone's property. Attorneys for the Massachusetts Female Anti-Slavery Society argued that she could not be compelled to return because, at least while she was within Massachusetts, she was free. Forcing her to go back to the plantation in Louisiana therefore not only would mean returning her to bondage but, perhaps more alarming, could only be done by recognizing that the person who claimed to own her in the South "owned" her in Massachusetts as well. Otherwise, by what right could he compel her to return? In the view of abolitionists, such a recognition would amount to the reestablishment of slavery in a state from which, they believed, it had been eliminated. The return of Med could only be accomplished by the expansion of slavery.

This claim was answered by an attorney for Med's "owner" with the no less plausible—in legal terms—argument that Med was, by Louisiana law, simply an object of property like any other, and that it was both sound policy and settled judicial practice that the property rights of the citizens of the several states of the Union be recognized and protected by the sister states. In legal terms, he argued that comity be granted by the courts of Massachusetts to the laws of Louisiana. He invited the court to imagine the consequences should the citizens of any state feel insecure in their possession of property when traveling outside their home state. In any event, the owner was simply asserting a limited and qualified right of removing the property in question. This hardly constituted the reestablishment of slavery in New England. Grant comity, he argued, and the problem quite literally will go away. These arguments about Med's travels through the antebellum United States were made before a judge who complimented each of the attorneys on the quality of his presentation. The question in this case was not simply what was to happen to Med but about the meaning of slavery, of comity, of property, and so on. What was to happen to Med, in fact, depended on the answers given to these other—peculiarly legal—questions. For the judge, some of the considerations that went into the determination of Med's fate were the circumstances of her arrival in Massachusetts in the first place (did she escape or was she brought by someone else?), the differences between natural law and positive law as they related to the case at hand, and decisions by other judges in similar cases.

More than one hundred years later, in the 1940s, Clara Mays and her family, after a long and difficult search for housing in wartime Washington, D.C., bought a house on First Street not far from Howard University. Soon after moving in, Mays received a letter from a prominent local attorney advising her that if she and her family did not vacate the premises quickly, legal action would be initiated that would compel her to leave. Having participated in many similar proceedings, the lawyer felt confident in assuring her that the law was unquestionably on his side. The previous owners of the property had signed a contract—a restrictive covenant—with their neighbors agreeing not to sell any property in the neighborhood to "Negroes." There being no doubt that the Mayses were Negroes, their occupancy was in violation of that contract. The deadline for voluntary compliance passed and the threat was acted upon. At trial the plaintiffs—neighboring "Caucasian" property owners—prevailed and the Mayses were ordered to leave the neighborhood. Mays, assisted by attorneys associated with Howard Law School, appealed. Among the arguments offered by her attorneys was that the neighborhood in question was so different in 1944 compared to what it had been like in 1926 when the contract was drawn up that "the doctrine of changed conditions" should apply. This doctrine, essentially a rule of judicial interpretation, allowed judges to decline to enforce the terms of a contract if, because of changes in the relevant circumstances, enforcement would be unfair. Attorneys for the neighbors argued that conditions had not changed, or at least not so much as to render the contract unenforceable. Attorneys in this case disagreed about what those conditions were, what circumstances were or were not relevant, how much change counted as change in the technical sense, who was responsible for the change that had occurred, and much more. The judges who decided the case also had strikingly divergent understandings of what sort of rule the doctrine of changed conditions was and whether and how it ought to be applied. Nevertheless, as in Med's case, a decision was reached and lives were affected.

These cases, along with others, will be examined in detail in subsequent chapters. Before revealing the outcomes, I would like to draw attention to some elements common to these cases. Perhaps most obvious, each of these cases illustrates the crucial role played by lawyers and judges in shaping the contours of what is sometimes called race relations in U.S. history. To put it bluntly, the kinds of things that lawyers and judges do—argue, interpret, categorize, create, and manipulate legal meaning—have occupied an important place in efforts both to maintain and to challenge racial subordination. Perhaps less obvious, each of these events also illustrates the centrality of "space," "place," or geography in the historical constitution of race. Both of these cases were about space, the meaning of space, and what it means to cross a line. Both of these cases, and many others to be explored, have been about making connections between race, space, law, and, considering the significance of the events for Med and Clara Mays, experience—or what it's like to be in the world. Both of these events, separated as they are by generations, are links in a chain of events that I'll call the geopolitics of race and racism. In each case African Americans were not where some white people wanted them to be. More particularly, each event demonstrates the place of legal reasoning and argument in the unfolding of the geopolitics of race.

In the following pages, I will introduce a number of basic concepts that, taken together, can illuminate these and many other events. More important than understanding these episodes, however, is beginning to see how such events have contributed to shaping the world that we inhabit. Contemporary geographies of race and racism bear the traces of these earlier conflicts. If, as seems likely, these configurations persist and mutate long into the twenty-first century, they will bear the marks of our occupancy as well. Our orientation to this way of looking at the world begins with us: with experience.

Geographies of Experience

If we ever consider the idea that each of us has a biography or life story, we most likely imagine first how our lives unfold through time. Day after day or year following year, time or temporality gives whatever structured coherence our lives seem to have as chains of events. Narratively we may announce episodes by saying "first" or "and then." We tell stories of before and after and change. Our lives are, in a sense, made out of time. But we are also physical, corporal, mobile beings. We inhabit a material, spatial world. We move through it. We change it. It changes us.

Each of us is weaving a singular path through the world. If you are sitting in a room reading this book, retrace your steps. As we think back in time—an hour ago, last week, three birthdays ago—we also think back in space. The paths that we make, the conditions under which we make them, and the experiences that those paths open up or close off are part of what make us who we are. In this sense they are constitutive of our being. Different paths, different experiences, different lives. They are fundamental conditions of what it's like to be in the world.

These geographies of experience, as I'll call them, are in important ways irreducibly unique. Each is as singular, exceptional, and improbable as the biography it helps form. And yet while there is no typical biography, there are of course significant commonalities among lives deriving from shared experiences. We all share some experiences as sentient, corporal human beings. Members of a common culture may confer shared meaning on experience. People share times and places. Paths crisscross, converge, diverge. We are not singular atoms bouncing through a void. There are commonalities among people who inhabit a place at the same time or who do things together. People may be categorized by common spatial experiences-the prisoner, the refugee, the exile, the fugitive, the homeless, the alien. These commonalities plus the elements that are irreducibly individual all contribute to making us—you, me, us—who we are.

The spatial organization of the society—how the material, social world is put together—is a basic condition of one's experiential geography. This is perhaps a more familiar sense of the term geography. Our world—call it turn-of-the-century United States, or perhaps simply turn-of-the-century Earth—is a very different place than was, say, pre-Columbian America or medieval Europe. It looks different. It would feel different to be in or of those other worlds. Among the fundamental elements of humanly created places that can vary from culture to culture or from era to era are how the world of everyday life is carved up into meaningful spaces and the kinds of culturally specific spatial codes which condition basic experiences of access, exclusion, and protection.

Geographies of Power

To consider phrases like "how the world is carved up into meaningful spaces" raises interesting questions about, for example, who is doing the "carving." To what end or purpose is this carving done? Under what conditions? What kinds of "meaning" are assigned to spaces? Consider ethnographic accounts of gender or age-based spatial exclusions. Consider apartheid. Consider again the spatial conditions required for us to make sense of being a prisoner, a refugee, a fugitive. To call to mind the experience of access granted or denied, of exclusions and expulsions enforced, of protection or sanctuary respected or violated, is to become conscious of the social relations of power. A fundamental element, therefore, of any human world, including ours, is what I will be calling geographies of power. Consider these reminiscences by literary critic Blyden Jackson of a world not too distant, in time, from ours:

Through the veil I could perceive the forbidden city, the Louisville where white folks lived. It was the Louisville of downtown hotels, the lower floors of the big movie houses, the high schools I read about in the daily newspapers, the restricted haunts I sometimes passed, like white restaurants and country clubs, the other side of windows in banks, and of course, the inner sanctums of offices where I could go only as a humble client or a menial custodian. On my side of the veil everything was black: the homes, the people, the churches, the schools, the Negro Park with the Negro park police.... I knew that there were two Louisvilles and in America, two Americas. I knew, also, which of the Americas was mine.

Jackson, of course, was recalling his experience navigating a landscape constructed according to segregationist or white supremacist conceptions of power. This is a world that Clara Mays and millions of other Americans found familiar. For our immediate purposes, geographies of power can be thought of as those spatial configurations that reflect and reinforce social relations of power.

The connections between space and power—and so their connections to experience—can be manifest in any number of ways and can involve any number of the basic elements of social space such as location, distance, spatial networks, routes, centralization, marginalization, and so on. One fundamental way in which the connections between space and power are expressed is through territoriality. Territoriality can be thought of as the assignment of a particular sort of meaning to lines and spaces in order to control, at first glance, determinable segments of the physical world. Upon further reflection, however, it is clear that the objects of control are social relationships and the actions and experiences of people.

Complex territorial configurations are basic though often invisible elements of everyday experience. Retrace your steps again. Examine how many "meaningful spaces" in this sense you enter into and pass out of as you make your way through the world—the number of meaningful lines you cross and what it means to cross them. Examine the proliferation of public and private spaces to which you have access. Consider the complex of spaces around you from which you are excluded and how it would feel to cross the lines and enter these forbidden spaces. Ours, of course, is a highly privatized world. The landscapes that we inhabit are derived, in large part, from a set of ideas centered on the concept of property in all its variety and complexity. A world carved up according to different principles would not be our world. The connections between space and power would be so dissimilar that the experience of living in the world would be different. We would not be us.

Of basic importance for the arguments to be developed in this book is the idea that complex territorial configurations—and the codes of access, exclusion, and inclusion of which these configurations are the physical expression—are inseparable from the workings of large-scale power orders such as those associated with, in our world, gender, race, and class. These are in addition to those associated with explicit legal-political notions such as the state, governance, sovereignty, jurisdiction, and the like. Many of the spatial configurations through which we each make our way are constructed according to various ideologies of domination and subordination, hierarchy, and inequality. Much of what power is and how it is experienced is bound up with how it is spatialized. For example, much of our common understanding of the spatialization of public and private reflects and reinforces inherited conceptions of gender hierarchies. And though the experiential differences between "men's world" and "women's world" are less severe than in previous generations, they have by no means been obliterated. This is especially so when we consider the spatialization of men's work and women's or the differential geographies of fear at night. It makes sense, therefore, to think about geographies of gender or geographies of patriarchy not as maps of where men and women are—whatever that would mean—but rather as those spatial configurations that reflect and reinforce social relations of power or inequality based on conceptions of gender or of patriarchal ideologies. In this way we can understand social space itself as being gendered. Similarly, the experiential geographies in Louisville and elsewhere were strongly conditioned by geographies of power reflecting and reinforcing white supremacy. This is so with respect to many other dimensions of social difference such as age, wealth, labor relations, and sexual orientation. We all live within all of these geographies of power and others. Indeed, there is no "outside" of them.

Another principal argument of this book is that such spatial configurations are not incidental to power relations such as those predicated on race but are integral to them. This means, first, that such relations are what they are because of how they are spatialized. The long struggle against racial segregation demonstrates that the spatiality of racism was a central component of the social structure of racial hierarchy, that efforts to transform or maintain these relations entailed the reconfiguration or reinforcing of these geographies, and that participants were very much aware of this. Space and power are so tightly bound that changing one necessarily entails changing the other. In fact, many contemporary human geographers argue that it doesn't make sense to think of them as "separate" at all. Space can often be seen as the embodiment of power; power as the point of spatial differentiation."


Before looking at some specific features of geographies of race and racism, I'd like to introduce two additional elements of our orientation to geographies of power: history and politics. I said above that geographies of power are integral to the maintenance and revision of social relations of power. To speak of the maintenance and revision of power is to introduce time, change, process, and history into our understanding. It is also to implicate social practice or human action. I'll treat each of these in turn.

Geographies of power in all of their complexity are historical and dynamic. They are historical in the sense that they come to us from the past—or, more accurately, we (any generational "we") inherit them from previous generations. We are born into a world. We change it simply by living our lives. We pass it on to those who follow bearing the marks of our occupancy. Geographies of gender, for example, are inherited, revised, reworked, and bequeathed generation after generation. We can see this kind of process unfold rather clearly and dramatically in the context of twentieth-century geographies of race and racism. If you were born in the southern United States before the mid-1950s, you inherited a racialized landscape that was in crucial respects similar to the world described by Blyden Jackson. If you were born there in the 1970s, after the events known as the Civil Rights movement, the geographies of race and racism that you inherited and inhabited were, in crucial respects, strikingly different. They had been transformed. Geographies of power are dynamic and in continual flux, even if they appear in any time or place to be immutable and stable. They change. They are changed. They are in motion. Most important, as with history more generally so far, there is no once and for all.

As reference to the Civil Rights movement also suggests, such changes or transformations are often the result of deliberate actions. They are the products of what I will call the geopolitics of social life or of everyday life." Such actions are rooted in the practical recognition of the connections between space, power, and experience by people whose lives are shaped by geographies of power, that is, by their inhabitants. Images of the Civil Rights movement also call to mind the strong reactions to such attempted changes in the prevailing order. By saying that geographies of social life reflect power, we mean that they are the objects of contestation and the products of actual struggles. Viewed as the products of political conflicts, they may retain elements of tension or contradiction born of compromise. These kinds of geographical configurations may also be seen as having been constructed and revised according to various ideologies or common visions of power. They may be understood as the unsteady products of uneasy resolution among various competing ideologies. Consider Med's journey through the complex geographies of freedom and slavery or Clara Mays' navigation through geographies of race and private property. In the cases to be examined we can see various versions of racism, liberalism, federalism, and other ideologies mapped or inscribed in uneasy accommodation or tension with one another onto real landscapes, real places. The points, here, are that key aspects of geographies of experience are the products or result of political actions, and that these geographies of power are extremely complex and potentially unstable ideological constructions.

Geographies of Race and Racism

The connections between space and power are probably illustrated no more clearly than in the context of the historical politics of race and racism in the United States. It is hard to understate the central significance of geographical themes—space, place, and mobility—to the social and political history of race relations and antiblack racism in the United States. Consequently, we cannot underestimate the importance of the historical geography of race to United States history more generally. It's obvious, for example, that segregation, integration, and separation are spatial processes; that ghettos and exclusionary suburbs are spatial entities; that access, exclusion, confinement, sanctuary, forced or forcibly limited mobility are spatial experiences. Some of the cleavages and conflicts within black political thought through the generations have concerned divergent views of both the desired and possible connections between space and power. Nineteenth-century debates about the merits of emigration or colonization, twentieth-century debates about the practical meaning of integration, and recurrent strands of separatism and black nationalism that have found expression in the stated desire for—or necessity of—a black nation in North America or community control of inner-city neighborhoods all have been directed at imagining and creating alternative geographies of race. More pervasively, what has been called the politics of black mobility has been an enduring and often explosive theme in U.S. social and political history. Finally, in conventional political discourse the perceived "problems" of race have been rhetorically spatialized as the "southern problem" or the "urban problem." In innumerable ways, then, the history of race relations in the United States has been the history of conflicts over spatial relations. The geographies that we all live in tell the tale.

It is a basic premise of this book that the history and dynamics of race and racism are not marginal but integral to an understanding of the political construction of U.S. landscapes more generally. The close connections among race, space, and power have been most obvious with respect to the urban and metropolitan landscapes of the twentieth century and to many of the Southern rural landscapes of the eighteenth and nineteenth centuries. If we want to understand the historical construction of geographies of race and racism in the United States, it seems we have to do more than map changing distributions of "black people"—as if the geographies of race were in principle no different than the geographies of cotton or the blues or the AME Church. We will instead examine the ways in which racism as a set of ideologies contributes to the shaping of geographies of power. We will look at the spatial configurations that make race relations what they are at any time and place. Our aim is to explore the creation and re-creation of part of what Toni Morrison has called "the wholly racialized world."

The Geopolitics of Race

Our focus here, then, is on the social practices that contribute to this shaping and reshaping of geographies of race as instances of both geographies of power and geographies of experience. The geopolitics of race can be conceived of as a single but complex process that in the United States began with European contact with indigenous peoples—and the resultant racialization of the Western Hemisphere—and continues to the present day. With respect to the geopolitics of European American and African American race relations, the process took root with the introduction of slavery and, again, can be projected deep into the twenty-first century. The geopolitics of race refers to a complex chain of events. We can regard it in the broad sweep of U.S. history as a story of continuity and change from generation to generation. In subsequent chapters, for example, we will look at the geopolitics of slavery, abolition, emancipation, segregation, and desegregation. We will also examine specific illustrative events and particular strategic encounters and the actual practices that contributed to the formation of the geographies of race which we have inherited.

Geopolitical Practices

By geopolitical practices I mean, most generally, those social and political actions oriented toward reshaping the spatial conditions of social life. In the context of race relations, these have included such practices as firebombing, lynching, picketing, demonstrating, schooling, and preaching. Perhaps more commonly they have included evicting or denying access to housing in certain neighborhoods, posting Whites Only signs over doorways, ignoring such signs, passing statutes authorizing or mandating racial exclusions, and issuing judicial opinions and decrees validating or voiding these statutes. That is, many of the most significant practices which constitute the geopolitics of race are what we think of as specifically legal practices. Likewise, much of the meaning that is mapped onto lived-in landscapes is specifically legal meaning. This book is largely about how this meaning is arrived at and how this mapping is accomplished. To shift the emphasis somewhat, we want to know how connections between law and space or between meaning and power are made and unmade in practice.


Before examining these ideas more closely, consider this event from everyday life. On the morning of Friday, November 14, 1913, W D. Binford, a superintendent in the mechanical department of the Louisville Courier-Journal, went to the Hotel Henry Watterson to address a luncheon of the Real Estate Exchange of Louisville. He came to tell the fifty or so assembled realtors that Louisville had a problem, that he had a solution, and that they had an opportunity to be part of that solution. The problem identified by Binford concerned the consequences of the ongoing "invasion" of Louisville's "white residential districts" by Negro "mercenaries."

According to Binford, the Negro was moving into the "best and most exclusive squares in the city" and waiting for neighboring property owners to make an offer "large enough to induce him to leave." Among the observable consequences of this invasion were a "migratory movement of whites from pillar to post," a precipitous decline in property values, and a growing preference among whites to rent their homes rather than buy. If unchecked, he claimed, this state of affairs would lead to racial disturbances and would "make a provincial city of our much boasted 'Gateway to the South.'"

Binford's solution was a municipal segregation ordinance modeled on one enacted in Baltimore in 1911. The objective of the ordinance was the maintenance of racially segregated residential districts throughout the city. The ordinance would include procedures for the identification and mapping of "white blocks" and "colored blocks" and would penalize members of the two recognized races for residing in the territory assigned to the other.

Binford had done his homework. Giving the legislative and judicial histories of the Baltimore ordinance—as well as those enacted in other municipalities—he suggested ways that Louisvillians could avoid some of the difficulties that Baltimore segregationists had encountered. He also noted the beneficial effects such an ordinance would have on the Negro: it would help to maintain "the most friendly feeling" that white Louisvillians, as southerners, had for "the colored man and brother"—a feeling that the invasion of mercenaries had begun to jeopardize. Speaking both to the organization and to the assembled individuals as realtors, Louisvillians, property owners, and white men, he urged his audience not to remain passive and to lend support "at the proper time." However, Binford cautioned that if Louisvillians were to avoid the exacerbation of the problem that had characterized the Baltimore campaign, then supporters of the segregation ordinance must act quickly and quietly.

According to press accounts, the president of the real estate exchange, J. D. Wright, disagreed with Binford's assessment of the problem as well as with the efficacy of his proposed solution. Wright voiced his opposition to any undue discrimination, stating that Louisville and Washington, D.C., were the only two U.S. cities in which "the negro has an ample chance to elevate himself." Moreover, an ordinance such as the one proposed, he believed, would be more likely to "make the negro rebellious" than to create conditions conducive to harmony. In any case, he felt that the real estate exchange should not take any action until public opinion was clear. On the other hand, another realtor, J. E. Dawkins, seems to have been convinced that the law would "help the negro" and that the real estate exchange should endorse Binford's proposal. The Courier-Journal reported that "a resolution to make the question a special order of the next meeting was defeated, Pinkney Varble contending that the resolution violated a rule against business at social meetings."

Binford and the others mentioned in this story were all participants in the geopolitics of race. They and countless others were contributing to the shaping of the landscape that Blyden Jackson would recall years later. The geopolitics of race can take place anywhere. We can find it at a Friday business luncheon, on street corners, at kitchen tables, or in schools and churches. We find expressions of it in the press. It happens in city council chambers, mayors' offices, and courtrooms. It takes place locally, nationally, and internationally, in private and public. It is important to note here, though, that the instrument Binford advocated in his project to reshape the geography of race in Louisville was a law, a set of rules. More specifically, he urged the city government to put certain restrictions on property owners—to limit those to whom one could sell or rent real property. He sought to modify in a small but potentially significant way the legal meaning of property, of what it means to own. As I'll now discuss, he sought to change (or maintain) inherited geographies of race by reshaping the legal landscape.

On the Legal Landscape

In the following pages we will be looking more closely at some specifically legal kinds of practices. We want to see how the kinds of activities that go into crafting legal arguments (and judgments) are involved in the geopolitics of race. This requires at least a cursory examination of questions about law, language, and politics. We will begin, however, on the ground.

In the modern world—or in that segment of it that we call the United States—all geographies of power and experience are embedded within and take much of their meaning from what I will be calling the legal landscape. It is helpful to think of the legal landscape as the complex ensemble of lines and spaces—territorial configurations—that give legal meaning to determinable segments of the physical world or actual lived-in landscapes. Again, begin with where you are. The landscape within which you are situated is composed of innumerable "legal spaces" which in aggregate constitute systems of sociospatial differentiation. They effect a spatial distribution of power conceived of in terms of "rights." Work outward from the room you're in to the building and its configuration of authorized and unauthorized spaces; to the institution or neighborhood within which the building is set. The walls and fences, the gates and doors, tell only a fraction of the story. Consider the complex mapping of public and private. We live, after all, in a sea of property, a dense grid of spatialized power. Consider the legal meaning contributed to the landscape by the specific deeds, leases, contracts, and licenses drawn up with reference to these spaces. Now add in the jurisdictional spaces, the municipality, county, and state spaces. In the United States we must also take account of the complex spatiality of federalism according to which formally distinct states are considered to occupy the same physical space. As we can see, legal meaning saturates lived-in landscapes. Does it matter?

In our world there is no "outside" of the legal landscape. There is no point in the terrestrial world that is void of legal meaning. Every point of land is "owned" in some sense, every "where" is within multiple, overlapping legal jurisdictions. This means that every location may refer back to or implicate a number of social relations—actually, a network of relations of power. Think of the space of a single residential apartment. The legal meaning that it carries may refer to relations among tenants and landlords, management companies and employees, previous tenants and neighbors, mortgage holders, city, state, and federal housing authorities, the police, and so on. In fact—and this is of primary significance for the geopolitics of social life—every such territorialized segment of the world has, potentially, a surplus of legal meaning. Consider now the complexity of a landscape saturated by these legal spaces.

The experiential meaning that law inscribes on the physical world is often conceptualized and felt in terms of rights or obligations, or what kinds of actions, under what conditions, are permitted, prohibited, or mandatory in relation to whom. That is, the meaning of social space is, in large part, about social relations of power. Experientially, as we move through the world in the course of a given day or year, we pass into and out of innumerable legal spaces. We cross over lines or refrain from crossing. As we move, "rights," "duties," and so on become attached or fall away. Some become rather firmly attached; others are rather ephemeral. This suggests that rights are often contingent on space. What rights we feel we have or feel obliged to recognize others as having often depend on our location in the legal landscape. Again, when we speak of rights we speak of constellations of social relations conceptualized in terms of the language of law or "legal discourse."

As I indicated above, most often in our experience the legal meaning of social space—not simply a single, isolated space but an extensive ensemble of spaces—is obvious enough. Indeed, one of the things that is entailed by being socialized into one's culture is that such meaning can be largely taken for granted. If you have ever deliberately trespassed, you know what that feels like. Occasionally, however, it may be a significant part of a group's geopolitical project to call into question that which seemingly had been obvious: to challenge the received connections between meaning, space, power, and experience in such a way as to engage in a reinscription or remapping of meaning onto lived-in landscapes. Consider squatters, participants in the sit-in phase of the Civil Rights movement, and participants in the Sanctuary and Anti-Apartheid movements. What follows tracks such moves through an exploration of legal reasoning and the geopolitics of race.

On Legal Practice

In our legal culture the phrase "legal practice" is most often taken to refer to the activities of professional legal actors such as lawyers and judges. In this book the doings of these kinds of people are, indeed, of primary significance. However, it is important to recognize that what we might call everyday legal practices or nonprofessional legal common sense is equally—in some ways more, in some ways less—important to how we understand how law works and how legal meaning shapes experience. For example, when W. D. Binford addressed the realtors of Louisville to enlist their support for a segregation ordinance, he made a number of legal claims. He was, after all, speaking in support of a law. He spoke about rights and justice, about property and contract, about legislative authority, judicial practice, and constitutional validity. Although Binford was a mechanic, his understanding of these legal issues was shared by many people generally considered more competent to discuss such matters. Gilbert Stephenson, a graduate of Harvard Law School and author of the prestigious Race Distinctions in American Law, public officials in various municipalities—including Louisville's city attorney Stuart Chevalier—and state court judges all more or less endorsed Binford's views on law. On the other hand, just as doubts were raised at the realtor's meeting, so was Binford's take on things legal directly challenged by black citizens of Louisville as well as by attorneys—including, eventually, a past president of the American Bar Association and counsel for the National Association for the Advancement of Colored People, Moorfield Storey—and other state court judges. Claims and counterclaims about law were made by different people in differing situations in order to shape the unfolding of events, in efforts to shape local geographies of race.

In this book we are concerned with legal practice primarily as an aspect of political practice. Politics is always about something. If politics is broadly—and charitably—conceived of as involving conflicting assessments of how social life is organized, how it should be organized, and how to narrow the gap, then clearly legal practices have been an important component of political action for most of U.S. history. Geopolitics, in the sense used here, is about narrowing the gap between actual and desired or normative geographies of power. Familiar examples of legal practice as politics include the legal maneuvers of abolitionists and of lawyers associated with the NAACP that we will be examining in subsequent chapters.

For a number of reasons, courts of law have been an important arena in which these conflicts have taken shape. However, in the process of bringing a broad social and political dispute into the legal arena, it undergoes a number of fundamental transformations. For example, the direct involvement of the state becomes a key feature of the conflict. Moreover, the formal topic of the dispute—what it is putatively about—may be changed from, say, the local geographies of race to the essential (as opposed to incidental) attributes of property (i.e., the meaning of property), the distinction between civil rights and social rights (the meaning of rights), or the relation between property relations and political authority (theories of civil society). Or the dispute may be translated into an argument about the meaning of specialized terms such as "comity" (as in Med's case) or "privity" (as in Clara Mays'). The topic of argument might shift to the intentions of "the framers," of past legislatures, of parties to contracts, and so on. It should be clear that the dispute is rendered no less political as a result of these strategic transformations and translations. However, bringing a political dispute before a court of law involves a distinct set of social practices. Specifically, it involves the purposive, creative, and interpretive practices of argument and judgment. In litigation these practices are controlled by what is taken to be a relatively distinct kind of argumentation called legal reasoning. Indeed the practice of judging often takes the form of assessments of what counts as a valid legal argument.

Central to this practice are the specific acts of categorization which, woven into narrative form, constitute an argument: the assertion and denial of meaningful conceptual distinctions, and the assertion and denial of claims of implication or entailment that follow from the categories chosen. It is through these kinds of acts that meaning—specifically, legal meaning—is created and revised. In geopolitical contexts, this meaning is (provisionally) inscribed on actual landscapes. The geographies of power so constructed (and subsequently construed or reinterpreted) are of fundamental importance to how power is exercised and experienced. In the events to be described in this book, lawyers and judges looked out onto the world and presented conflicting construals of what that world was actually like. Often, I will argue, they presented interpretations of geographies that would most readily yield the desired world. Both what was seen and what was desired were, of course, strongly conditioned by views of race.

By David Delaney

David Delaney teaches in the Department of Law, Jurisprudence, and Social Thought at Amherst College.

"Delaney's argument is original, provocative, and very creative."
—Nicholas K. Blomley, author of Law, Space, and the Geographies of Power