Intimate States

Gender, Sexuality, and Governance in Modern US History

Margot Canaday, Nancy F. Cott, Robert O. Self, Margot Canaday,Nancy F. Cott,Robert O. Self

• Publisher: University of Chicago Press
• Year: 2021
• ISBN:
  9780226794891
• Topic: History
• Subtopic: World History
• Index: History

Fourteen essays examine the unexpected relationships between government power and intimate life in the last 150 years of United States history. The last few decades have seen a surge of historical scholarship that analyzes state power and expands our understanding of governmental authority and the ways we experience it. At the same time, studies of the history of intimate life—marriage, sexuality, child-rearing, and family—also have blossomed. Yet these two literatures have not been considered together in a sustained way. This book, edited and introduced by three preeminent American historians, aims to close this gap, offering powerful analyses of the relationship between state power and intimate experience in the United States from the Civil War to the present.The fourteen essays that make up Intimate States argue that "intimate governance"—the binding of private daily experience to the apparatus of the state—should be central to our understanding of modern American history. Our personal experiences have been controlled and arranged by the state in ways we often don't even see, the authors and editors argue; correspondingly, contemporary government has been profoundly shaped by its approaches and responses to the contours of intimate life, and its power has become so deeply embedded into daily social life that it is largely indistinguishable from society itself. Intimate States makes a persuasive case that the state is always with us, even in our most seemingly private moments.

1

Reconstructing Belonging

The Thirteenth Amendment at Work in the World

Stephanie McCurry

Introduction

This chapter grapples with the implications of an act of state authority arguably unparalleled in US history: slave emancipation. The temporary war powers claimed by the US government created a state big enough to destroy a category of private property—property in persons—worth $4 billion in 1860. That big state lasted long enough to enact and enforce the Thirteenth Amendment, which permanently emancipated four million people. We know this, of course, but without sufficiently appreciating the intimate matters involved in that state decision which destroyed slavery and the world built on its foundation. In the postwar American South, emancipation involved a revolution in every household. Political and domestic affairs could not be separated. It is a perspective abundantly evident in the sources, although one usually overlooked by political historians and those interested in state power and state formation.1

With emancipation, the US government destroyed the antebellum form of the Southern household, liberated enslaved people to form free families, and forced the reconstruction of every household and family in the former slave states. This long, excruciating, and violent process was evident in the policies and actions of the federal government and its agencies, including the US Army and the Bureau of Freedmen, Refugees, and Abandoned Lands; Southern state governments scrambling to write new constitutions and frame laws; the courts enforcing the laws and adjudicating disputes; and, above all, in the actions of newly liberated African Americans attempting to destroy previous owners’ possessive claims over their bodies and family members. The destruction of slavery meant the remaking even of notions of love and family, and of race—or white supremacy—and all that it involved. Emancipation was a process that reconfigured subjectivity itself.

The implementation of the Thirteenth Amendment showed the deep reach of the state into private life. Of all the civil rights emancipation implied, none was more readily acknowledged than the right of free people to marry and claim their children as their own. The definition, recognition, and enforcement of freedpeople’s marital and parental rights was key in the construction of a new post-emancipation legal order. Most enforcement of the amendment happened at the level of state constitutions and laws; and its full scope can only be assessed with due attention to the “domestic relations” of marital and parental rights, fought over by newly freedpeople, former slaveholders, and legislators within the ex-Confederate states.

That history is a reminder that the family itself is a realm of governance, a polity, and one of great significance to states.2 There was nothing new about that. But in 1865, both institutions were in a state of flux and the former Confederacy was occupied territory, creating a new scope of action. In that highly contingent postwar context, the US government exerted its power not just to police or constrain, but to assist and protect African Americans in their intimate lives. In this, as we will see, Freedmen’s Bureau agents responded to demands that issued from the citizens themselves, prominent among them freedwomen who, in the South as in other post-emancipation societies, played a key role in asserting new rights for themselves, their children, and their families. The slew of bastardy or paternity cases Black women filed against former owners in 1865 and 1866 represents one sharp and understudied element of that historical process.

The extent to which the Thirteenth Amendment set the state to meddling in private family affairs has not much been appreciated by legal scholars, even those who leave little doubt about the “constitutional revolution” it initiated.3 Much can be gained by connecting state power to intimate matters with respect to the amendment; such an approach brings into conversation the literatures on the law, the state, and women, gender, and the family, which are too often separated. Even as scholars tear down the myth of the weak American state and advocate a “state in society” approach, they exhibit a striking lack of interest in the key matter of slavery and emancipation (and the period of the Civil War and Reconstruction at the center of political histories of the US state). Moreover, notwithstanding a call for a broader approach to “the political,” these new histories of the state take little notice of the distinguished body of feminist scholarship on gender and politics, which over the last twenty-five years has redefined the boundaries of “the political” to include precisely the kinds of personal or domestic relations on which enforcement of the Thirteenth Amendment turned.4

Emancipation was an excruciatingly intimate event for all parties to the process. Disentangling families formed under slavery was no easy task—all the more so because slaveholders did not just let go of the people they had claimed as theirs. The dynamics of the process require us to contend with the emotional and psychological elements (what Judith Surkis calls the “affective supplement”) of the legal history.5 One key goal of this essay is to show how centuries of sexual violence against slave women, and the children born as a result, set a deep explosive charge under every negotiation over the terms of freedom in the postwar South.

The Thirteenth Amendment: Passage and Ratification

Passage of the Thirteenth Amendment was a crucial achievement of the Lincoln administration and a measure of state authority so untrammeled that it can be said to have remade the United States.6 The total, immediate, and uncompensated abolition of slavery was codified in the amendment and imposed on the rebel states as a condition of readmission to the Union. It was “one of the largest liquidations of private property in world history,” fully two-thirds of the capital wealth of the Southern states.7 A measure entirely unthinkable in 1860, it was achieved (in part) in 1863 only as an executive order issued as a war measure.8 Revising the US Constitution by amendment thus was essential. The amendment and its implementation stand at the very center of arguments about the Civil War as the “birth of the modern American state.”9 Enforcement in the defeated Confederate states represented an assertion of central state authority in the affairs of the separate states inconceivable in the first republic.

Even in the Republican-controlled 38th Congress, passage of the amendment was not an easy proposition. It passed in the House of Representatives on January 31, 1865, on an almost party-line vote of 119 to 56, a stripped-down but revolutionary measure ending the national government’s recognition of legitimate property in human beings.10 The amendment was quickly ratified by numerous Northern states and small Unionist governments of occupied Confederate states, but Union border states remained opposed. The Kentucky legislature declined to ratify even on condition of compensation and a strictly limited set of civil rights for newly freed slaves; tellingly, the one new right the state was willing to grant was recognition of marriages and parental relationships.11 In mid-April 1865 when Grant accepted Lee’s surrender, the amendment remained short of the votes needed for ratification. Its fate thus fell into the hands of the defeated Confederate states, and their defiant posture did not bode well. President Johnson urged provisional governors to ratify as the basis of a lenient reconstruction and readmission.12 But when constitutional conventions convened in the fall of 1865, every ex-Confederate state balked.

What ensued in the state of Georgia was indicative of the South as a whole. Tasked with writing a new state constitution, convention delegates begrudgingly declared all slaves in the state “emancipated from slavery” by virtue of the “war measure” the United States had imposed, but denied the Emancipation Proclamation’s constitutionality and refused to ratify the Thirteenth Amendment, deferring that decision to the legislature. Not one Southern state convention ratified.13 Like border-state Democrats, delegates feared particularly the enforcement clause contained in Article 2: “Congress shall have power to enforce this article by appropriate legislation.” Benjamin Perry, the provisional governor of South Carolina, told President Johnson that his state would never consent to a clause which “may be construed to give Congress power of local legislation over the negroes and white men.”14 In Perry’s view, the state should control what emancipation meant and what civil rights it conferred.

By December 1865, Southern legislatures’ debates about ratifying the Thirteenth Amendment were conducted side by side with those on what would be known as the “Black Codes.” By writing separate codes of law for “free persons of color”—codes that harshly criminalized the exercise of basic civil rights, including freedom of assembly, mobility, and employment—Southern states sought to constrain the meaning of freedom for African Americans and remand the class back to plantation labor.15 President Johnson kept up pressure for ratification, issuing assurances about the limits of the amendment. By December 1865, enough Southern states had ratified to secure adoption. What the amendment required by way of individual rights was left purposely vague. South Carolina ratified while attaching a declaration prohibiting Congress from “legislating upon the political status of former slaves, or their civil relations.”16

Georgia was the last state to ratify. The Georgia constitutional convention made a down payment on the legal work of reconstruction by abolishing slavery and calling elections for December 1865 (with only “free white male citizens of this state” as voters). It acknowledged the legal mess emancipation created, specifying the hierarchy of law that would now pertain in the state: the US Constitution, Georgia Constitution, and then state laws, excepting those “as refer to persons held in slavery,” declared “inoperative and void.” Delegates left it to future legislators to write the laws that would recognize and govern the newly freed population, but they made one exception: Section 9, which prohibited “forever . . . the marriage relation between white persons and persons of African descent,” and ordered the General Assembly to enact laws to punish any officer or minister who knowingly “marries such persons together.”17 That proactive move showed the immediate recourse to marriage laws to mark racial difference. The article was written before the state passed any law recognizing former slaves as free people of color with a right to enter the contract of marriage.

On December 18, 1865, the Thirteenth Amendment to the US Constitution was officially adopted. The arduous political course of the amendment initiated a far longer legal history. Defining and enforcing the terms of the Thirteenth Amendment involved the government—federal, state, and local—in the most intimate aspects of Southerners’ lives, since even the narrowest interpretation of the amendment included the right to personal liberty and property, to marry, and to make parental claims to children.

State Legislation and the Legal History of Marital and Parental Rights

To implement the Thirteenth Amendment required nothing short of a new legal order to recognize former slaves as free people and members of free families. Marriage law was an indispensable instrument in t...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Introduction
• 1: Reconstructing Belonging: The Thirteenth Amendment at Work in the World
• 2: The Comstock Apparatus
• 3: Morals, Sex, Crime, and the Legal Origins of Modern American Social Police
• 4: The Commerce (Clause) in Sex in the Life of Lucille de Saint-André
• 5: “Facts Which Might Be Embarrassing”: Illegitimacy, Vital Registration, and State Knowledge
• 6: Race, the Construction of Dangerous Sexualities, and Juvenile Justice
• 7: Eugenic Sterilization as a Welfare Policy
• 8: “Land of the White Hunter”: Legal Liberalism and the Shifting Racial Ground of Morals Enforcement
• 9: Sex Panic, Psychiatry, and the Expansion of the Carceral State
• 10: The Fall of Walter Jenkins and the Hidden History of the Lavender Scare
• 11: The State of Illegitimacy after the Rights Revolution
• 12: What Happened to the Functional Family? Defining and Defending Alternative Households Before and Beyond Same-Sex Marriage
• 13: Abortion and the State after Roe
• 14: The Work That Sex Does
• Afterword: Frugal Governance, Family Values, and the Intimate Roots of Neoliberalism
• Acknowledgments
• Contributors
• Index