Vol. 14 No.11 (November 2004), pp.845-848

ROUGH JUSTICE: LYNCHING AND AMERICAN SOCIETY, 1874-1947, by Michael J. Pfeifer. Chicago: University of Illinois Press, 2004.  272pp. Cloth. $35.00. ISBN 0-252-02917-8.

Reviewed by Dr. Christopher Malone, Assistant Professor of Political Science, Pace University, cmalone@pace.edu

In 1857, U.S. Supreme Court Chief Justice Roger Taney institutionalized the ideology of the “white man’s republic” in his now infamous DRED SCOTT opinion. Taney first asserted that no black individual – slave or free – was a citizen under the proper meaning of the Constitution, leaving Dred Scott without redress in an American court of law. Second, he argued that the federal government did not have the power to regulate slavery in the territories, thus rendering the Missouri Compromise of 1820 null and void. Finally and perhaps most bizarrely, Taney intimated that states did not even have the power to abolish slavery, since doing so amounted to a violation of the constitutional right to private property. All of these conclusions flowed from one ostensibly basic inquiry: “The question is simply this,” Taney asked. “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen” (SCOTT v. SANDFORD, at 403)?  Taney responded in the negative: “We think that [blacks] are not, and that they are not included, and were not intended to be included under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States” (at 404). He continued:

On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them…They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect. (at 404-405)

Three years later Abraham Lincoln was elected to the presidency on a platform of preventing the spread of slavery into the western territories. Within months the southern states had seceded from the Union, plunging the country into Civil War. After four bloody years of battle, the country took its first honest stab at civil rights for African Americans, ratifying the Thirteenth, Fourteenth, and Fifteenth Amendments, and passing a series of Civil Rights Acts which sought to end discrimination and segregation between the races. However flawed and noble the attempt, it was nonetheless short lived: by 1877 Reconstruction by the North ended and “Redemption” in [*846] the South commenced. And with it came a brutal revival of the white republic ideology Chief Justice Roger Taney had sketched out just two decades earlier.

The eminent historian Rayford Logan has termed this dark period in American history “the Nadir.” Michael Pfeifer’s very engaging ROUGH JUSTICE: LYNCHING AND AMERICAN SOCIETY, 1874-1947 offers us another dark perspective on the “nadir” by examining the relationship between lynching, racial hierarchy, and due process of law across postbellum America. Pfeifer’s conclusions are startling indeed: he asserts that lynchings were far from the random and impulsive acts of mob violence by which most historians have categorized them. On the contrary, “lynchers responded in part to a middle-class reform movement, present in all regions, that stressed due process and attempted to rid the performance of criminal justice of its popular trappings” (p.7). Thus, the act of lynching was a response – legally, morally, and symbolically – of predominantly white working class supporters of “rough justice” to middle class advocates of rational, detached and antiseptic concepts of due process. Pfeiffer contends that the rise of lynching as a form of criminal justice in the last quarter of the nineteenth century forced elite reformers to construct what essentially became a compromise between rough justice and due process: the creation and instantiation of the death penalty as a rational form of social control. In the closing pages, Pfeifer explains:

This book argues that the history of lynching and the history of the death penalty in the United States are deeply and hopelessly entangled. One cannot be separated or understood apart from the other, for lynching came from the early modern death penalty, and the modern death penalty came from lynching. The notion that the administration of capital punishment can be individualized and particularized and that it lies outside of history and away from the larger social forces and ideas is strongly rebutted by the history chronicled here, for this has never been the case in American history (p.152).

The book’s five succinct chapters outline the scope and nature of lynchings in the postbellum period. In Chapter 2 Pfeifer explains that lynching occurred across the South, West, and Midwest with regularity in the closing decades of the nineteenth century and the opening decades of the twentieth. While lynchings did take place in the Northeast, they occurred on the rarest of occasions. Why to the west and south, and not in the northeast? Pfeifer postulates that “a mixture of cultural and legal elements disinclined northeasterners from lynching and acted as effective constraints on communal behavior in the inevitable moments of legal crisis that occur in all societies. The foremost of these elements were the heritage of a Yankee culture that stressed social regularity and probity and a rapid capitalist transformation in the antebellum period, which created substantial middle classes that backed due-process reform”(p.36).

The absence of lynching as a form of criminal justice in the Northeast leads Pfeifer to explore in depth its prevalence in the South, West, and Midwest. He concludes that lynching acted as a form of social control in these parts of [*847] the country, meant to reinforce racial, ethnic, and gender hierarchies in parts of the country where due process was weak, if not altogether invisible. “Racial, class, and ethnic solidarities and antagonisms and strongly held notions of gender and sexuality animated lynchers and separated them from their victims” (p.38). By and large, most of the victims of lynching were African American men, and most of these took place in the Jim Crow South. Black males were mostly lynched (whether guilty or not) for the crimes of rape and murder. However, Pfeifer explores why some whites, Sicilians, Chinese, Mexicans, and even (black) women were lynched in other parts of the country. Many of the crimes involved theft of personal property in western lands where the law rarely operated. Hence, lynching was portrayed as the only viable response to sheer anarchy on the frontier.

Yet, at the heart of ROUGH JUSTICE lies the relationship between lynching and the color line in a period of American history when white supremacy once again became the dominant ideology. In Chapter 3 Pfeifer states, “Whites who collectively murdered African Americans in the South, Midwest, West and Northeast in the late nineteenth and early twentieth centuries not only made a statement about racial hierarchy but also a statement about law . . . for them, the criminal justice system in its maddening variability could not be entrusted with the sacred responsibility of performatively reenacting white supremacy when it was challenged” (p.67). As Jim Crow laws spread across the South, and as the Ku Klux Klan formed to enforce them when “the law” could not, lynching served as the ultimate judge to comfort the racial and sexual phobias of southern whites. In a word, white supremacy became melded to rough justice. It was as if working-class southern whites had taken Justice Taney’s words in DRED SCOTT literally when he said that blacks did not deserve the respect of an American court of law: and so, Judge Lynch decided to mete out justice under the branches of trees or behind the wheels of a horse-drawn cart. He did it with impunity, and he did it to at once impose a white republic ideology and social control upon African Americans.

Not all whites, be it in the South, West, or Midwest, subscribed to Judge Lynch’s system of justice. In fact, Pfeifer argues that it was middle-class, reform-minded whites who sought to put an end to lynching. In the opening decades of the twentieth century, the rise of the middle class coincided with rapid industrialization and urbanization. With it came middle-class sensibilities that sought a more neutral means of dispensing justice, if not more humane. “Lynching declined across the country with the coalescence of middles classes, which advocated for due-process law and worked to reshape the death penalty,” Pfeifer explains (p.122). Even in the South, lynching fell out of favor:

Eventually, by the end of the first third of the twentieth century, the integrative forces of the market led a growing southern white middle class to disavow lynching. White southerners fashioned instead a legal order that eschewed the social chaos and unseemliness of lynching but nonetheless perpetuated its symbolic functions of ritualistic lethal retribution and the enactment of white supremacy in the punishment of crime (pp.122-123).

By the middle of the twentieth century, lynching as a form of rough justice [*848] essentially evaporated; Pfeifer convincingly argues that it was replaced by the death penalty. And yet, though prima facie racially neutral, the death penalty in Pfeiffer’s view nonetheless symbolizes what he calls “the physical maintenance of racial hierarchy” (p.149). He concludes the book with a brief but important discussion of the evolution of the death penalty in the latter half of the twentieth century, and how African Americans are disproportionately affected by its dispensation. Pfeiffer’s views on the death penalty are best exemplified by one of the most liberal justices to grace the Supreme Court, Justice William Brennan, who wrote the dissent in MCCLESKEY v. KEMP (1987). In examining the role of racism in the criminal justice system, Brennan concluded, “we remain imprisoned by the past as long as we deny its influence on the present” (p.152). Pfeifer’s point in ROUGH JUSTICE is a similar one: we cannot understand the motivations and intent behind the execution of the death penalty at the dawn of the twenty-first century if we do not understand the motivations and intent behind the execution of lynching at the turn of the twentieth.

For these reasons, ROUGH JUSTICE is an important contribution, not only to the field of law and criminal justice, but also to our understanding of the history of race and civil rights in America. It is rather fitting that Pfeiffer begins his story in 1874 and concludes it in 1947. Rough justice comes into existence the year before the Civil Rights Act of 1875 was passed – a law which was meant to override the Black Codes in the South and sought to do precisely the same things the Civil Rights Act of 1964 set out to accomplish. According to Pfeiffer, rough justice ends the year that Harry Truman desegregated the military, and the very same year that Jackie Robinson desegregated baseball. Rough Justice, in order words, spanned the period between the end of the First Reconstruction in the United States and the beginning of the Second Reconstruction. And yet, the hard fought victories of both have continued to produce only mixed results, as the epilogue of Pfeifer’s book warns. Two steps forward, one step back. The outlines of the Third Reconstruction are seen on the horizon: perhaps for Pfeiffer, it begins with outlawing the death penalty altogether.

REFERENCES:

Logan, Rayford. 1965. THE BETRAYAL OF THE NEGRO: FROM RUTHERFORD B. HAYES TO WOODROW WILSON. New York: MacMillan.

CASE REFERENCES:

DRED SCOTT v. SANDFORD 60 US (19 Howard) 393 (1857).

MCCLESKEY v. KEMP, 481 U.S. 279 (1987).

************************************************************

© Copyright 2004 by the author, Christopher Malone.