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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.