Black Liberal Feminism and “Unwritten Laws”
Liberal feminist theory centers around the argument that ending discriminatory laws and regulations would lead to the end of discrimination. However, equality under the law is what philosophers would call a necessary but not sufficient condition for holistic equality. Lynch Law in America by Ida Wells-Barnett and An End to the Neglect of the Problems of the Negro Woman! by Claudia Jones exemplify this theoretical deficiency. Though elements of both pieces represent a classic Black liberal feminist argument, inherent in them is the admission that oppression exists, often to a greater extent, where it is not legally sanctioned. Wells-Barnett discusses the horrors of lynching, suggesting that safe entry to the legal system would be the end of unwarranted, unpunished Black deaths at the hands of white America. However, intrinsic in her argument are America’s ever evolving “unwritten laws” that protect white innocence in the face of violent criminality. Jones gives an extensive critique of discriminatory laws and regulations that oppress Black women to a greater extent than any other demographic in America. But again, her argument is punctuated by examples of discrimination which correspond to societal prejudice more so than written laws. Though social and economic equality under the law, as Jones advocates for, and the safe entrance to the legal system hailed by Wells-Barnett are vital, both authors understand that the oppression of Black Americans cannot end while deeply racist “unwritten laws” continue to reign supreme in the United States. Wells-Barnett’s argument is more contemporarily convincing because, while these conventions appear implicitly as contradictions to Jones’ assumptions, Wells-Barnett addresses them directly, adroitly analyzing the way they grow, evolve and continue to oppress African Americans today.
Wells-Barnett makes the assumption that if Black people can make it past the lynch mobs in the streets and into the legal system they will receive the equal treatment that it prescribes. This was not a naïve assumption for her time. Black people who scarcely made it into a court room expected “innocent until proven guilty” to apply to them just like slaves expected “all men are created equal” to apply to them once they were free. This assumption is clear when Wells-Barnett writes, “All the negro asks is justice – a fair and impartial trial in the courts of the country. That given, he will abide by the results” (Wells-Barnett, 75). However, by the turn of the next century it was clear that the US legal system routinely imprisons and executes African Americans with little more allegiance to due process than the mobs. Though her faith in the legal system may have been inordinate, her understanding of the evolution of America’s “unwritten laws” is contemporarily astute. She wrote of the continuation of lynching after its nascent goal (as a terroristic means of suppressing the Black vote) had been accomplished saying, “Although the political excuse was no longer necessary, the wholesale murder of human beings went on just the same. A new name was given to the killings and a new excuse invented for so doing” (Wells-Barnett, 72). She understood that the murder of Black people would continue to evolve in any means necessary. What she could not have anticipated, was that allowing Black people to enter the legal system simply transferred the “power of judge and jury” from the ropes of mobs to the hands of policemen. This context is what allows her piece to make a liberal argument hailing the legal system, and simultaneously condemn its shortcomings outright.
Jones makes the assumption that equality under the law is the first step to solving the economic and social inequalities of Black women, but contradicts this assumption with several examples of social discrimination, or “unwritten laws.” She specifically critiques Jim Crow laws “directed against [Black women] as regards property rights, inter-marriage… and laws which hinder and deny the right of choice” (Jones, 117). However, the individual stories she uses to illustrate the unequal oppression of Black women are rooted in systems that aren’t legally sanctioned. For example, Jones repeatedly returns to the story of Rosa Lee Ingraham, a mother of 14 in Georgia who faced life imprisonment for “defending herself against the indecent advances of a white supremacist” (Jones, 119). In this case, no official law declared that standard self-defense laws didn’t apply to Black women. There was, however, a system of “unwritten laws” that demonized Black women while protecting white men from being penalized for their actions. Though similar examples of “unwritten laws” and illegal discrimination permeate Jones’ piece, she holds fast to the assumption that unequal laws are the poison root from which all other social and economic inequality continues to flourish.
The contradictions in Jones’ piece make her argument less convincing than Wells-Barnett’s, in which contradictions between her faith in the legal system and condemnation of “unwritten laws” are visible only in hindsight. Implicit in Jones’ piece is the understanding that silence in the face of illegal discrimination can be as detrimental as a lack of anti-discriminatory legislation. This understanding is clear in the story of Rosa Lee Ingraham, as well as “the mute silence with which the Department of Justice has greeted Mrs. Amy Mallard… since her husband was lynched in Georgia because he had bought a new Cadillac and become… ‘too uppity’” (Jones, 109). However, she does not acknowledge it explicitly. Instead, she makes the contradictory argument that legislation tending to the specific struggles of Black women would allow them to move up in society, even when the society itself is strategically working to keep them down. The legal system glorified by Wells-Barnett bears little resemblance to the one Jones addresses a half-century later. Rather, it is a somewhat abstract opposition to lynch mob rule. Because her description of mob rule and the way its “unwritten laws” terrorized Black Americans resembles the legal system we have today, it appears contradictory to trust the legal system to protect against it. However, for her, entry into the legal system meant that you had made it past unwritten laws, and is therefore not as contradictory when read in the context of the 1900s.
A second element that makes Wells-Barnett’s argument more compelling is her astute analysis of the ways America’s system of oppressive, “unwritten laws” grows and evolves, which reveals striking parallels between lynching and contemporary instances of fatal police brutality. She describes lynching as “the cool, calculating deliberation of intelligent people who openly avow that there is an ‘unwritten law’ that justifies them putting human beings to death without complaint under oath, without trial by jury, without opportunity to make defense, and without right of appeal” (Wells-Barnett, 70). When Philando Castile was shot, on camera, in front of a child, without a weapon in hand, the officer made this calculation. He understood that he was not in danger, that it was illegal to shoot this man, and that he would get away with it. As with lynchings, it is customary for police departments to “blacken the good name of the helpless and defenseless victims” of police brutality by saturating media coverage with the victims’ criminal histories, “hoping thereby not only to palliate their own crime but at the same time to prove the negro a moral monster unworthy of the respect and sympathy of the civilized world” (Wells-Barnett, 73). A victim’s criminal history is not entered into the court record, as though an arrest in 2012 would justify an officer using deadly force; it’s entered onto the public sentiment as a reason that the officer should get away with it. Finally, the publicity following instances of police brutality harkens back to the “jubilee” that surrounded a lynching (Wells-Barnett, 73). Though often produced from a neutral or condemning position, the style and volume of publicity echoes the voyeuristic obsession white America has always had with Black pain. Wells-Barnett understood the way America’s “unwritten laws” sanction and celebrate the murder of Black people. Her appeal for a “fair and impartial trial” still resonates today, though the assumption that our legal system would provide this organically, with police as the intermediary for justice, has proved to be false.
In lynching, as in police brutality, as in social and economic discrimination, the vast majority of cases do not claim to be supported by law, but rather by a profound confidence that America’s “unwritten laws” will protect the offender from prosecution. The oppression in this country overwhelmingly comes not from a lack of laws, but from a lack of punishment. A slap on the wrists that should rightfully bear handcuffs. A deafening silence instead of a gavel. This is the silence Jones referred to in her story of Mrs. Amy Mallard, and that Wells-Barnett suggests speaks “more forcibly than words can proclaim” (Wells-Barnett, 72). Both authors argue for equality under the law, but where Jones centers her argument around the laws themselves, Wells-Barnett’s argument is structured towards equal treatment. Though at the dawn of the 20th century this meant entry into the legal system, if we read it in today’s context, her plea for “a fair and impartial trial” rings loud and true. It would mean not getting past the mobs, but getting past the policemen. It would mean getting safely to a courtroom. It would mean equal access to legal representation, the end of mandatory minimums for racialized crimes, and a jury which was truly composed of one’s peers. Both authors retain a classically liberal allegiance to the power of the legal system to equalize the country. However, Wells-Barnett’s acknowledgement and prophetic analysis of the forces working against it make her argument the more contemporarily compelling of the two.
