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Book Review
| Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920, New York: Cambridge University Press, 2001. Pp. xx + 405. $80.00 cloth (ISBN 0-521-64020-2); $25.00 paper (ISBN 0-521-64966-8).
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| Two areas of inquiry predominate in United States legal history. The political economy literature pioneered by James Willard Hurst focuses on the relationship between law and capitalism. The scholarship on identity and inequality, which follows on the work of C. Vann Woodward, examines the rise and fall of de jure racial discrimination and analogous forms of injustice. These research agendas have often been pursued separately, at cross purposes, or even antagonistically because they ask different questions or claim to reveal more fundamental mechanisms of historical change. In Recasting American Liberty, Barbara Young Welke addresses both scholarly literatures as part of her analytical narrative about "a transformation in the conditions of individual liberty" in which governments recognized that such liberty "depended upon state protection" (ix, xiv). |
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The argument is made in three parts. Welke begins by describing how the rapid proliferation of railroads and streetcars led to a rising toll of passenger injuries and deaths. The increasing presence of women in public meant that they comprised a growing proportion of litigants in lawsuits against railways. Judges and juries showed female plaintiffs special consideration: because they saw women as passive and helpless, they offered them more legal protection than was afforded men. But the preference for a uniform rule of law that characterized Anglo-American jurisprudence transposed highly gendered court rulings into generally applicable legal precedents. As Welke points out, case summaries printed in digests and treatises substituted masculine for feminine pronouns, masking both women's gender and their influence in establishing a protective state. |
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Welke makes an analogous case about nervous shock. Railway accidents harmed people in mind as well as body: passengers who escaped serious physical injury were sometimes disabled by psychological trauma. While judges and juries were reluctant to conclude that men had been terrorized into incapacity, they readily found that women could, and held railroad companies responsible. "Injured women," Welke concludes, "enabled courts to make the mental and legal leap from fright and shock to physical injury" (219). |
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The book's final section takes up the origins of Jim Crow. Welke explains how antebellum railroads divided passengers into separate carriages: ladies' cars for women and their traveling companions, smoking cars for unaccompanied men, slaves riding with their owners, and free blacks relegated to smoking or baggage cars or excluded altogether. After the Civil War, four million new rights-bearing citizens required different arrangements. While all black people sought equal treatment, it was middle-class black women—who expected to ride in the ladies' car with other respectable women—who most often went to court to secure it. Their struggles played out in a constantly changing legal environment in which the uncertain validity of conflicting railroad company rules, state statutes, and federal legislation led to frequent and sometimes violent confrontations. Southern state legislators made racial segregation mandatory because they feared losing control over race relations to the private regulatory power of railroad corporations and the federal authority established by the 1887 Interstate Commerce Act. Separate-coach laws were protective enactments intended to preserve white privilege but also to define the rights of respectable blacks. Jim Crow was thus "part of the broader pattern of state regulation that marked the emergence of the modern American state" (351). |
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Recasting American Liberty is based on hundreds of court records, including briefs, trial testimony, and rulings; additional detail comes from treatises, statistical and census data, and trade and medical literature. Welke deploys legal evidence extremely effectively, making each case both a statistically meaningful data point and a thoroughly human story of hope and fear, aspiration and humiliation. Also exceptional is Welke's attention to spatial and material environments. Legal history is among the least illustrated of all scholarly disciplines, and while there are good reasons why we privilege the textual, the interpretive utility of Welke's numerous images and meticulous scene-setting suggests the rewards of careful thinking about the physical world that surrounds the abstract realm of law. |
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Welke has significantly advanced the project of studying legal history in its broader sociocultural context, yet without slighting the technical aspects of law (the oft-cited problem of scholars thinking "outside the box" but having trouble getting back inside). Welke accomplishes this by concentrating on crucial points of articulation: she documents precisely how "external" factors like gender norms and racial ideology are translated into the "internal" legal rules by which jurisprudence consciously operates. For the many scholars who continue to study how law is shaped by political ideology, prejudice, economic imperatives, religion, and popular notions of fairness, Welke's methods for uncovering evidentiary smoking guns provide an important model. |
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Even more importantly, Welke transcends the historiographic divide between political economy and personal identity by applying critical race and gender theory to the emergent liberal state. She shows that public regulatory power, far from being a straightforward response to industrialization or the logic of capital, was fundamentally dependent upon cultural constructions of femininity, manhood, race, and respectability. In Welke's account, liberalism is itself constituted by the very gender and racial identities it is supposed to dissolve. The book does have a few imperfections. Its distinction between the old order of individualism and autonomy and the new regime of regulated liberty is too schematic, and its author adopts too much of the vocabulary (though thankfully not the conceptual problems) of modernization theory. But overall, Recasting American Liberty is a brilliant work of scholarship that points toward a new synthesis of the strange career of the liberal state. |
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| A. K. Sandoval-Strausz
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| University of New Mexico |
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