Margaret Burnham, professor of law and founder of the Civil Rights and Restorative Justice Project at Northeastern University, has spent years documenting the regular and mundane violence that was fundamental to the operation and maintenance of the Jim Crow South. Her new book By Hands Now Known: Jim Crow’s Legal Executioners, is the fruit of that research, painstakingly recording the violence—by civilians, the police, and the interplay between the two—in the period of 1930–1955, as well as the repeated, unsuccessful attempts by Black people and white allies to document it and get justice. Jeanne Theoharis, author of The Rebellious Life of Mrs. Rosa Parks, interviewed her on Zoom to discuss her book, that activism, and what it shows us for the way forward today.

Jeanne Theoharis: I want to start by talking about the main arguments of the book. In the past two decades, we’ve started to focus on histories of lynching, particularly in the South. But in By Hands Now Known, you take us beyond spectacular forms of violence like lynching to more quotidian forms of violence, which are less visible but much more pervasive. What do we see when we look at this? What are the stakes of not seeing these regularized forms of violence in the detail and relief that you bring us to it with? 

Margaret Burnham: There are two questions here. I ask, “What was the nature of the violence? What were its causes, its effects, its manifestations, and its lasting legacies?” As we well know, there were thousands of lynchings, but lynching is often seen as an acute, extraordinary event. You can think about lynching as either a proxy for a system of racialized subordination or a symbol of it. But both of those perspectives, I argue, obscure other forms of violence that were far more pervasive and widely experienced—namely, physical assaults and homicides that do not meet the contemporary definition of lynching. These phenomena give a character to the Jim Crow period that we don’t necessarily see when we look only through the lens of lynching.

What we have here is violence that was retributive, that was intended to and did spread terror, but that was also gratuitous. It was both random and systematic. I talk about the regularity of the violence—that it was ever-present. What I’m trying to bring to the reader is what life was like in that political and legal environment. In your own work, you remark that Rosa Parks talks about Jim Crow having Black people walk on a tightrope. The point of my book here is to explore exactly how violence shaped that tightrope.

The second question is “How did law absorb, accommodate, and sit within this violence?” We customarily perceive Jim Crow as a set of rules and regulations that were onerous, but manageable. But I argue that this violence was the handmaiden of Jim Crow. Jim Crow could only be enforced through violence. I wanted to make plain the nature of the racial legal contract that is constitutive of the Jim Crow period, which I’m talking about in relation to Charles Mills’ insights about the racial contract that undergirds the American polity. I wanted to illustrate the ways in which this racial contract shaped and defined the legal world in which folks lived during the Jim Crow period.

JT: How did seeing that kind of regularized violence shape Black life during this time?

MB: Like lynching, its intent was to generate terror. Imagine what it’s like to live in a state—and I mean that in both senses—of terror. Violence could come at any moment. And when it came, like a storm, it threw one’s life into a complete upheaval and changed the course of one’s life. 

And as I detail in the book, the violence affected Black folk across the class spectrum. Obviously, violence has always hovered close to African American life, but today, people’s class status can insulate and protect them from the kind of violence that people experienced during the Jim Crow years. That’s not to say that Jim Crow–era violence affected everyone in precisely the same ways. If you were able to drive a car downtown rather than take a bus, for example, you could protect yourself from the indignities and potential violence of public transportation. But nevertheless, I think it’s important to realize Bombingham was about violence as it affected folks across classes: lawyers, activists, ministers, as well as folks who were working in the mines. That’s one thing, I think, that distinguishes this period.

JT: Can you say more about the ways that civilian violence partnered with law enforcement and the more daily forms of police violence?

MB: Archives are always surprising places. You never know what you’re going to find there. As I pored over documents from the Department of Justice and local court dockets, what perhaps was most shocking to me was the ways in which those affected by this violence could find no refuge in the courts. We’re dealing here with violence for which there was no remedy. One focus of the book is Birmingham, and here I examine how police violence was basically baked into policing in that particular town, and indeed across the South. Obviously, there’s a line between official violence—that is, the violence of the police—and violence perpetrated by civilians, but both of them construct the Jim Crow system. They are, in effect, joined at the hip. Of course, there is little new here for students of Jim Crow, but the documents I gathered map these interconnections in surprising ways.

The archival material connects the dots for us, making plain that just as there was no remedy for police violence, police were often involved in violence by civilians. I found in the archive a case of a young man who insulted a white man by not giving way on a city sidewalk or something of that sort. The white man went for a police officer, and the young man was arrested. Together at the police station, the civilian and the police officer beat him to death. Joined at the hip. Also, the line between official violence and civilian violence was eviscerated because some civilians, such as bus drivers, were deputized to enforce Jim Crow. As I describe in the book, bus drivers in many cities in the South were armed. Why would a bus driver be required to have a gun on the job? Because their job was to uphold—by lethal force, if necessary—the color line on their buses.

JT: In this period of 1930–1955, as you note, this ever-present violence led to activism. In the book, you’re documenting violence, but you are also documenting the ways people tried to record and challenge it at the time. One of the myths we have about this period is that people were too scared to speak. But they did challenge this violence. I saw that in my research on Rosa Parks—in that decade before the Montgomery bus boycott, she and a small group of activists in Montgomery’s NAACP are trying to document and challenge this climate of violence and legal malfeasance—and yet finding no justice. Your parents, Louis and Dorothy Burnham, are doing that work through the Southern Negro Youth Council and Southern Conference Educational Fund. I think you show that people speak up and organize under incredible danger and the chilling nature of having no remedy or state protection.

MB: Yes. In the book I do try to lift up a range of forms of resistance within the African American community and among their white allies. There were the formal petitions and lawsuits, but there were also the acts of protest integrated into daily life—what Black people did to preserve their humanity amid a reign of terror. I chose Birmingham to describe the ways in which that community sought to rally in the 1940s, laying the groundwork for what happens in Birmingham later in the late 1950s and early 1960s. I look in particular at the work of Emory Jackson, the editor of the Birmingham World, who followed in the footsteps of Monroe Work and Ida B. Wells in recounting, investigating, and protesting white violence. I describe his work and that of others to explore what was truly a deep, generative, and, in some respects, effective liberation movement in the 1940s, without which we would not have had the mid-1950s bus boycott in Montgomery.

One of the cases that I describe in the book is that of a Birmingham miner named Captain Butler, killed by company security men in 1948 because of his union activity. And on the occasion of his death, over two thousand miners, both Black and white, walked off the job. To get two thousand men to walk off the job, it had to be widely accepted that this was nothing less than a cold-blooded murder to eliminate an effective labor organizer. So that’s a story that was not actually well known—neither by civil rights or labor historians—before we found it in the files. And not only is there this wildcat strike on the part of UMW members, but his wife, as well, wins a civil case against the company. Such lawsuits were not numerous, but they did occur. People are making the effort to knock on the courthouse door, but there’s no Black representation. They can’t go to their Black city councilor or mayor or police officer—there are no such people. But nevertheless, people are making appeals to public officials to be treated like full citizens.

JT: The stories of resistance you’re telling show that people did, at times, file cases, and yet there was almost never justice.   

MB: The book is a partner project with the archive that we’ve created here at Northeastern that documents around one thousand incidents of homicidal racial violence in the Jim Crow South. The archive covers the period 1930–1955. We pick up where the data collected by Stewart Tolnay and E.M. Beck, authors of A Festival of Violence: An Analysis of Southern Lynchings, 1882-1930, leave off. My partner on this project is Melissa Nobles, a political scientist at MIT.

We are now looking at the border states—Maryland, Washington, D.C., West Virginia, Kentucky, and Missouri. There are obviously fewer cases in these states, but we’re finding that the courts and legal authorities often paid more attention to these incidents in contrast to the Deep South states. Yet the results of these court proceedings were disappointing. In other words, in these border states, judicial actors are engaged, but juries are not convicting. Prosecutors are not vigorously prosecuting. In the rare case that there are convictions, appellate courts are reversing them. These are differences that matter, because on the one hand you have a modicum of due process and on the other a complete absence of it.

What we are seeing in these border states perhaps evidences the ubiquity of the racial legal contract. In the book I look at how particular aspects of law were distorted by race. One chapter considers the crime of kidnapping. I focus here on Southwest Mississippi and look at how kidnapping was essentially erased as a crime when the victim was Black. I suggest this could be a legacy of slavery in that the Black body was non-kidnappable. It certainly was non-kidnappable during slavery. Black people don’t own their bodies, this erasure suggests: if they’re told by a white person to go to X place, they’re supposed to do that, never mind the formal law.

The archive also adds to what we know about the federal failure to respond to these incidents of racial terror. This story is one not just of their misfeasance, but of malfeasance. When there was a murder, the federal government had ample tools to provide some measure of justice to the families of victims, but it didn’t. One of my chapters details the docket of a particular federal prosecutor in the Middle District of Alabama who, after unsuccessfully prosecuting a Macon County sheriff who was known for his brutal treatment of Black people, basically throws up his hands and says, “I’m not going to prosecute any more of these cases.” So the federal government had the ability to act, but it did not.

Thurgood Marshall and his colleagues at the NAACP are doing all they can to generate a federal response, but it’s not going anywhere. My work is an effort to show exactly what was going on between Washington and the NAACP and local lawyers. I wanted to show how Marshall and his colleagues were being stonewalled by Washington, the evidence of which is quite deep in these DOJ and FBI files.

JT: We’re in another moment of attention to police violence and an upsurge of activism and advocacy against the criminal legal system. I’m wondering what you might say are the lessons we can learn from the activists in the period you study and from what happens to the law in this period for today.

MB: We have to try to understand their lives and the struggles in which they engaged, because our work rests on their shoulders. We also excavate this history for its own sake, because Rosa Parks and others like her were women and men whose lives were defined by the struggles they took on. This wasn’t incidental or casual or passing—struggle was their whole lives. Our work here—I count mine along with yours—is to honor that work. Thurgood Marshall and other legal actors are really my subjects here. In the first part of the book, I’m looking at Rendition, which is the process which by which lawyers in the North try to keep folks in Northern communities from being returned to the South, where they would be killed. The lawyering during this period was brilliant—creative, imaginative, and effective. That’s a lost tale.

Understanding how authoritarianism can be both hegemonic and also invisible is what this work is really all about. Because if you’re living in it, you probably won’t see it for all that it is. That’s why we do history—because it allows us to see things that are not necessarily apparent to us if we’re living them. It allows us to put pieces together, to make connections, and to see structures that would otherwise be obscure. And we need to do this work now because the people who lived through Jim Crow are still alive to fill in the blanks. The documents can only carry you so far. The archive can only carry you so far. To fully understand this history, you need the human voice.

JT: When we talk about authoritarianism in the 1940s, we tend to look outside the boundaries of the United States to nations like Germany, Italy, or Japan. But you raise an important question: what would it mean to say the United States was harboring its own forms of authoritarianism at the same moment when it was proclaiming its “four freedoms” to the world and decrying the spread of fascism in Europe?  

MB: This period was one of authoritarian rule by every definition that every political scientist worth their salt has ever used. It was a period in which a group of the citizenry was subordinated in every political way possible—and that is, in effect, what defines authoritarianism. During this period, the courts are effectively closed to Black people seeking legal recourse for crimes committed against them: either you never get to court, or if you do get to court, you can’t get justice. This, to me, is a hallmark feature of authoritarianism: the denial of the legal process to a group in order to maintain control over them.

At the same time, in this era there was the international fight for democracy. It was also the era in which human rights gained currency. Appreciating that development in these states where racial exploitation was upheld through violence is an important lens on the question of authoritarianism in the American experience. I want to note that this period is distinct from, say, the era of slavery or the Civil Rights era. It’s got its own mathematics and dynamics, and we need to study it for what it is.

JT: Your book is focused on the Deep South. But you also write that violence in the North was as pervasive. What might we see if we looked at the North in this period?

MB: I’m not in any sense buying into the notion of Southern exceptionalism. But at the same time, there is something distinct about the South that persists to this day. Some scholars are studying the links between current practices of, for example, corporal punishment, the death penalty, current practices that violate international human rights—finding that these practices are more prevalent in the South. It’s a dotted and discontinuous line, but it is a through line. At the same time, the South is not exceptional, for every state in the nation bought into the racial legal compact. The violence takes different forms, but it—and the failure of states’ legal systems to bring justice to victims—is present nationwide.

JT: You end the book by talking about what reparative justice would look like, writing that it is both “practicable and politically feasible” for reparation to be made to “the descendants of victims of lynching, police killings, and other racial murders.” The book contains two proposals for doing so: first, documenting an official record and calling for a kind of state apology, and secondly, advocating for material redress.

MB: My colleagues and I who are in this field are digging up this history and conducting these investigations because it’s an important piece of American history. But we also have an adversarial claim. We are recovering and restoring collective memory to make a claim for current recognition and redress. That renders this project part of the national conversation about reparations, which is taking place across a range of communities. We ask, “What would it take?” And this is not a simple question. It’s a complex, messy problem for which there will be many different responses across the range of communities and claimants seeking reparation.  

But I make the argument in the book that among many worthy claimants, the victims of racial murders in the Jim Crow South—people for whom the courtroom doors were closed, whose losses reverberated across the lives of their families—are entitled to redress.

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