Policing American Slavery: How the Slave Power Weaponized Society and the State with Gautham Rao

How did the legal machinery of early America enforce human bondage? Dr. Gautham Rao joins the channel to discuss his book Policing American Slavery and the state's role in hunting fugitives.

 In this episode, we challenge the popular narrative that early American governance was weak, decentralized, or defined by "minimal state" intervention. Sitting down with legal historian and Law and History Review editor-in-chief Dr. Gautham Rao, we trace how the necessity of protecting property in human beings forced the federal government to build a highly robust, coercive, and thoroughly modern police apparatus.
We break down the immense administrative strain of enforcing the Fugitive Slave Clauses of 1793 and 1850. Far from an ideological commitment to "states' rights," Southern politicians consistently demanded massive expansions of centralized federal power to override local Northern personal liberty laws. From the complicity of commercial northern ports to the brutal reality of custom houses and federal marshals, discover how the legal structures of the antebellum era laid the foundational blueprints for the development of modern American policing, surveillance, and state overreach.

Read Dr. Gautham Rao's book: Policing American Slavery: The Machinery of Expulsion in the Atlantic World.

Musis by Bitterlake, Used with Permission, all rights to Bitterlake

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Welcome And Guest Introduction

C. Derick Varn 0:49

Hello and welcome to Varmblog. And today I'm here with Dr. Gotham Rowe, who's a professor of history at American University in Washington, D.C. and the editor-in-chief at the Law and History Review. He is currently working on a book on the Confederacy, but we're talking about his last book, which is Policing American Slavery or White Power Policing American Slavery, which came out basically, again, kind of like right now. Um so it came out in May. As of when this is released, it will be out. How are you doing today? Pretty well. How about you? I'm doing okay. I'm doing okay. I I found your book very interesting as a leftist and an amateur economic historian who is also interested in law and a southerner. So I come from the deep south. So this kind of hit a bunch of points home for me. So in your introduction, you make a kind of key distinction that that white power is not the origin of modern policing, but a capture story. Can you explain what you mean by that? How did the early American slaverists capture the you know concepts of public order? And also what then is the origins of modern policing?

SPEAKER_01 2:19

So, you know, I think the the way into this question is to think about the the inheritance really that English-speaking colonists are bringing over to the colonies. Uh, if if there's an origin story here, it's that. And so they're bringing across the Atlantic some ideas about things like vagrancy and disruptions of public order, certainly connected to wealth accumulation for property holders and for for other economic elites to prevent the loss of laboring class, for instance. But they don't really have anything quite like chattel slavery will become in in North America. And so, you know, you have these shared norms going uh between the the English side and and English speaking side on in North America, but when it comes to the labor shortage in in the colonies, uh, to do the the work of expanding white settlements, there we see the turn first to indentured servitude and then of course to enslavement. And so the question then becomes what kind of law, what kind of norms and law will govern this new laboring class? And you know, unsurprisingly, this is sort of something we see in modern history, right? Is this mimetic instinct to take what people know and to adapt it to their circumstances? And so these very familiar laws about things like vagrants and you know, public ne'er do wells and vandals of property, this stuff gets sort of slanted to fit a new context in which the laboring class are not working for their own property or for a wage, but rather their full value is being exploited, right, as enslaved people. And so, you know, that's kind of that's kind of how to think about this is that, you know, you use the word capture. I think that's probably fine. That's what that probably works here. But for, you know, there it only works as a capture story or as corrupting of the public good if we have those kind of norms of what we define the public good to be. And for these folks who end up being the enslavers, you know, there is really there's really no one telling them that that this is anything other than what they should do. And so, you know, this is their law, this is their system, and they they feel like it's deeply connected to what came before. Okay, so the other question you ask is uh what then is the origins of the modern police? So that's a very complicated question, and I'll try to give you the simple version of my my understanding of it. There is a connective tissue between uh early modern uh policing that has to do with what will become liberal liberal property rights down the line, but essentially the safeguarding of property, the safeguarding of elite economic authority, which you know, certainly we can draw a dotted line from that forward into the present. The the the sort of thing that makes it more complicated though, and where it doesn't work quite as well, is that the means of policing change radically over time. And so a lot of what I kind of try to draw out in the book in terms of the practices of policing, that word I use a lot in the book, well, practices, that is still caught up extraordinarily heavily in the politics and law of status and personal status. And so you have in the in the sort of previous model, the older model, you have governing elites who wield extraordinary power in and authority in order to be able to coerce other people to do things. Whereas in the modern policing apparatus, what we see here is something much more deeply intertwined within the administrative state and administrative law and and the law of officers. And so, you know, it ends up being a little bit apples and oranges of comparing present and past in terms of the actual practices. But if there is a connected tissue here, it's certainly connected to wealth and capital, I'd say, is is the is the closest thing we can argue.

C. Derick Varn 6:50

I guess it does kind of make sense as a story of both capture and continuity simultaneously, that these starts off in property disputes. And I mean, if we're going back to English common law, it's pre-capitalist property disputes, but it's still there. And this is expands out to humans as property, which then does sort of show some line of continuity, even if that wasn't really all that consistent with you know prior legal models that we base the modern English speaking state off of, you know, like again, going back to English common law. Uh, one of the things that does that I really noticed that your book focused on was the the weaponization of practices and and and whatnot, as you mentioned. One of the big ones that comes up a lot is posse comitatis.

Capture Story Versus Origin Story

C. Derick Varn 7:40

How do you think posse comitatis was adapted from this concept of public order to weaponize people to enforce human property? And then beyond that, how is it a tool that also shifted neighbors into a baseline of racial and political surveillance?

SPEAKER_01 8:05

If there is a single term that encapsulates the book, really, it is that posincumitatis. So that's Latin for power of the county, uh, old common law kind of vestige in which, you know, the old model in England had been, early modern England had been the idea of a lawbreaker in the countryside, and the the constable or justice of the peace would not have enough manpower to chase them down. And so they would deputize somebody, some or a group of people there to help. And in the in the common law, there they were uncompensated, at least in theory, and this work was supposed to be compulsory. And so, if asked or if if demanded, you you had to do it. So this is how it was understood as a formal legal doctrine. And it it becomes part of the fabric of colonial law, you know, in the context of slavery, but also more generally, it's attached to any number of low, small level offices in the colony. So people like coroners, even you would find, had the ability, if needed, to draw on the Posse Comitadas. So widely available. Um again goes to this labor shortage idea that they just didn't have enough people to do, even to uphold the rule of law the way they saw it. And so this is just a kind of widely understood tool of enforcing laws in general. Now, when the laws end up being about enslaved people and or free black people, and and the amount of force that is needed in order to sustain the laws that are aimed at them requires people to be violent. I mean, that's just an adaptation of this idea of posticomitatis, except now sort of geared towards this system of enslavement. And if you think about the way plantations spread in the colonies and then the early United States, right? It is an ever-expanding system, more and more enslaved people needed to cover more and more land. And so the paradox here is that you know the wealth may be accumulating for the for the enslavers, but they're constantly having to check themselves. Do we have enough vigilance? Do we have enough power to keep the system intact? And they always thought the answer was no to both those questions. But the posse comitatus was one way where they thought they could guarantee that at a moment's notice they can generate what they need in case there might be a series of runaways, vandals, maroons, rebels, insurrectionists. This is the range of things that they were constantly concerned about that they thought this posse idea would be would be useful for.

C. Derick Varn 11:52

You point out that under this legal framework, a person's skin was essentially basically a proxy badge that gave people the right to interrogate, arrest, and even inflict violence. How did this economic choice, though, you know, essentially avoiding taxes by outsorting state violence to the general population fundamentally reshape the concept of citizenship?

SPEAKER_01 12:17

So the the economic model of these southern colonies and and states is originally you know not wildly so different from what's happening in, let's say, New York or Massachusetts. It's different, but at the very beginning, it's not all that different. And

Posse Comitatus And Enforced Violence

SPEAKER_01 12:39

what we see is a rapid divergence over time, where by the time we get to, let's say, the 1820s, we're talking about wildly different systems. And there's a there's a historian, now retired but brilliant uh historian named Robin Einhorn, who's written this comparative study of Massachusetts and and South Carolina to show this divergence, where Massachusetts is the model for what will become what we understand to be modern governance. They they tax their citizens in order to generate funds. They use those funds theoretically to better the public good. In South Carolina, we see a great aversion to that sort of approach, a kind of reluctant uh acceptance at times that they had to do it. And of course, the big obstacle in South Carolina and other other slave states is that you know, if they're gonna do a uh property tax, then of course their biggest form of property are slaves, and therefore we're talking about some pretty big bills here. And so they choose other other models, and you know, they're not they're not all that effective, but they are effective enough to generate enough to keep the system that they have going. So the question you asked is about citizenship and the consequences of this political economy for citizenship, right? Um, and I think that it's a it's a very good question, ultimately, and it's one that I think about a great deal. In the project that I'm working on now about the Confederacy, I'm trying to develop the idea that the Confederacy had built upon the experience of these slave states to approximate a concept of citizenship that was much more about the duties owed to the state rather than property rights or other rights that are guaranteed by the state. And it's all about public safety and it's all about white fear. And so, in terms of the earlier period here where we're thinking about the contours of citizenship there, really, you know, one way to think about it is that this is deeply gendered, first of all. So we're talking about white men, it is very class-centric, so we're talking about property white men. Um, and they, through this system, are kind of geared up to think of themselves as, you know, enforcers of the law, yes, because of this collapsing of public and private and and the pasticomitadas and other things, but almost like citizen protectors of their society. And so, you know, when I think about the earlier topic of discussion we had about these divergent models of policing over time, this is a good example of why that ends up being the case, right? Where you have scores of white men in the South who think of themselves as the first line of policing and they're armed to the hilt. Whereas in the North they're starting to see already by the 1850s the beginnings of modern police forces, uniforms, badges, and and that sort of thing that will take another 50 years, really, to arrive in the South. So it really is a different understanding of the place of the citizen in society. And violence is kind of central to that self-conception.

C. Derick Varn 15:55

One of the things that occurred to me reading your book that actually wasn't obvious, but connects to some of the work I've done about the Dixiecrats and the 50s and 60s, and then Carter's early adoption of neoliberalism is that some of these early frameworks do share a weird blurring of public and private that we actually see in political economic terms today, like across the board. In what ways do you think this kind of divergence between the northern and southern states over time became a kind of incubation for other ways to do population control, both racial and not?

SPEAKER_01 16:42

You know, I think in the modern context, if we've seen in the book, I kind of suggest that we're we're living in an age where we're at the precipice of a kind of backsliding into a moment where certain groups of people might be privileged with the types of police authority, policing power that white enslavers kind of had the run of in in most of American history up to the Civil War. But I think one of the fundamental differences that we see today is that when it comes to the role of private enforcement of the law, we do see some of it at the individual level, things like standard ground laws, which we can talk about in terms of individuals, right? But then, you know, these these private security forces and surveillance outfits that are receiving enormous amounts of money from the federal government and state governments to act as quasi-public policing. The the scale here is is sort of unfathomably different than what we saw in the earlier period. And a lot of that has to do with the manipulation of the corporate form here, you know, the idea that the corporation as an individual, or if you want to think of it that way, or but either which way, the the corporation as the the thing being contracted with, as opposed to the white man, the armed white man who has policing power, you know, the comparison here it really is sort of out of scale to think of something like Palantir or one of the private security agencies. I mean, these are these are just massive organizations, they're deeply centralized and they're tied in with an already centralized federal state. Whereas the the real kind of power of the the system in the earlier period with the enslavers is that you know it's in it's inherently stochastic. It is built on the idea of appearing in a moment of need, but reconceptualizing that moment of need of in terms of what the enslavers fear and what they think, what they think it is. And so, you know, it's just I think these are these are connected again because we do see it's private parties, right? And the collapsing of public-private distinction, yes. But I think the better comparison with what was then and what is today is the the diffusion of private enforcement authority for things like immigration, or in, you know, we saw in in before the Dobbs decision, Texas had passed the law that more or less was asking private citizens to enforce about uh abortion surveillance and women's uh curbing women's reproductive rights. I mean, those are the areas where I think we've seen a much more a much closer model to what uh was going on in the South pre-civil war.

C. Derick Varn 19:48

It does raise an interesting prospect to think about in the sense that I I I was gonna talk to you about the irony of this to save money if you look at the privatization policing today, it actually increased the cost across the board. Yeah. But but it does seem like weirdly, I'm not gonna use the the annoying Marxist word dialectic, but there is a tension between this tendency to want to use private massive corporate infrastructures, like you see with these AI, and then mass deputizing of you know entire state populations. It does actually seem to go back to like money in a very basic sense, like our even capacity. I think about ice, which we've thrown you know massive amounts of money at, but there's still a call for general deputization today along the same kind of lines that we're talking about in these West Confederate states, because frankly, even with the money thrown at it, they don't have the capacity to do what the kind of scale that they've been tasked with doing. It just they don't have the even with the money, they don't have the people. So it does seem like this kind of haunts our our our legal frameworks and is attention with itself, even a little bit. I I wanted to ask you though, because there's another concept that that I did not really think about going back this early, but that is the permanent emergency concept, which I think is like ubiquitous to politics in America after let's say the 1970s, and kind of kind of slightly less ubiquitous, but there in the Cold War. But you see this deeply in in southern states. You know, you write that that the enslavers trap themselves in a legal framework in the psychological framework that they were always going to be in a permanent emergency because any unsupervised black person in public could be either a revolutionary sleeper agent, a looming

Citizenship Built On Private Force

C. Derick Varn 22:05

catastrophe, or a possible Nat Turner. How does this permanent state of emergency legally shield civilians when they committed extrajudicial torture or murder? And then also, how do you think this has affected American law overall?

SPEAKER_01 22:24

So the the permanent emergency concept, you know, I borrowed this from the from the Italian social theorist Giorgio Agamben and others have written a great deal. I was I was very influenced in my own training by critical theory and social theory, and so you know, Walter Benjamin and the Frankfurt School and stuff like this. So, you know, it was something that I, as a historian, as an empirical historian, And you're sort of taught to shy away from from applying theoretical labels to things. But you know, God, uh, it was hard to avoid this one because it just seems so obvious to me that this is how these these folks were thinking. So, you know, that you were actually right that the the the heart of this matter is fear. And it this is a fear that is like a contagion for those who are enslavers and also their allies and perhaps their community members who may not be their best buddies, but but sort of understand the race politics at hand here. You know, the the simple version of this is if you're going to enslave people and keep them captive and separate their families and beat them and murder them, there's a high probability that at least one is going to want revenge. And so that is occurs very early on to enslavers in the Chesapeake and the Carolinas. And, you know, I I say in the book that it's not entirely without justification that they start to think this way because, you know, they're they've kidnapped people from all sorts of communities, some of whom are warriors and know how to fight and come from backgrounds about about military, about warfare, rather. So, you know, that is the beginnings of this of this fear that is at the heart of the permanent emergency concept. The problem with it, really, though, is that once once they start thinking this way, they're they can't get out of it. And they're just trapped, as I use that word, they're trapped in it, and it just keeps growing and growing. And they start to become heavily paranoid, these plantation owners and ever and and related folks, that pretty much all the things they're seeing might might count as part of the permanent emergency. And so the laws, you know, they they keep growing, growing, growing. You know, they're they're willing to let patrol groups enter plantations because they start to distrust themselves as vigilant over their enslaved population. And, you know, it leads to the use of force, as you suggest, at such a massive scale that it becomes, you know, the level of torture and violence that is directed at enslaved people, innocent, guilty, it didn't matter, as long as they were uh able to extract what they thought was a confession and quell what they thought was an insurrection. So in the book, I talk a little bit about how the classic thing they would do as a deterrent for future invocations of the permanent emergency was to place the severed heads of so-called rebels on stakes as a warning to others not to do it. But of course, others did do it, and it wasn't a deterrent. And if anything, it was simply a kind of performative act on their part. So you did ask about the concept of legal liability and things of that nature here. It's striking to me that you know, we see this a couple times, but really most often in the in the wake of slave rebellions that were put down, where white enslavers are are legally immunized from any liability from having killed other people's enslaved property for having destroyed property, because that is the cost of doing business with the permanent emergency concept. That you must be able to justify the use of force as being necessary to sustain the public good. Otherwise, you're endangering the entire public good based on based on the reality of a public of a permanent emergency. And so that I mean that's that is a just there throughout the story. There are some exceptions where people get sued for killing other people's human property. But for the most part, you know, if you can if these folks could prove that there was an emergency situation, then they were gonna not be liable for uh any kind of damages in a civil sense. And certainly in a criminal sense, very rare to find anything like that. Part of the reason I wrote the book is that I think that this whole system, the enslavers state, it leaves a series of scars in the Constitution and the American way, the tradition of American law and governance. You know, we tend to think, we tend to, in our memory and history of American law, to really lionize, you know, the great so-called great chief justices and moments of expansion of individual rights and occasionally group rights. But that's a choice that we're making. And it is a choice, I think, that it's not that we shouldn't teach those things and understand those things, but we should also understand that the context of those things was is a tradition of deep illiberalism, to put it in one term. And, you know, there's a there's a scholar who has coined the term the anti-canon to think about this. And I think there are a series of practices, judicial decisions, institutions, which, if strung together in a story, would be a counterweight to the narrative of American freedom and liberty that we find very convenient to tell ourselves. So, you know, what I'm telling you is part of the story. You could certainly point to the way that immigrants have been treated under the law, you know, going back to the Chinese exclusion. You can look at the way the military authority has flexed this might flex this might at the expense of the constitution, all the way from the Koramatsu decision up through the Patriot Act, and certainly what we're seeing today as part of the same tradition. That again is a counterweight, I would argue, overwhelming counterweight to the story of law and the rule of law that we we mostly tell ourselves.

C. Derick Varn 29:05

Yeah, I think that's that's interesting. It's interesting to me to think about the the way in which this kind of what we might call like deeply anti-liberal and deeply pre-liberal conceptions like interfaces with liberalism and interacts and mutates it. You know, because I think about like the concern of a permanent emergency from from slave populations, like we know that the Spartans were really worried about the helots for for this exact same reason. And we also know that in a lot of these slave-holding societies, that eventually becomes a massive point of expenditure. Uh, either, I don't necessarily mean expenditure in cash or whatever the equivalent of cash is in that time period, but I mean an expenditure of social energy on keeping

Permanent Emergency As Legal Shield

C. Derick Varn 29:53

that down. I mean, you think about the Carolinas, and you know, we'll talk about Matt Turner in a minute, but like the white population was outnumbered. I mean, it wasn't that different than the situation in, say, Haiti. And but it is interesting to think about the ways in which that does create a kind of shadow tradition to liberalism that's deeply embedded in our law. Are there other ways that you see this kind of shadow tradition coming out in modern law?

SPEAKER_01 30:26

Well, I think you know, if there's if there's a way that it is most apparent now, and this is more about policing than it is about constitutional law, but you know, the we've ended up in a situation where police forces in enjoy such discretion and immunity to do what they're gonna do. That, and under the same justification, you know, whenever there is a trial of an officer shooting someone or injuring someone who might be might be innocent, and that's the question, pretty much all the officer has to say is that they felt threatened. And that will justify you know all sorts of aggressive and violent behavior in response. And so I think, you know, this concept of like qualified immunity that that the scholar, uh legal scholar Joanna Schwartz has written so uh brilliantly about in in the recent book is a great example of this, of this permanent emergency concept being being so prevalent and powerful. You know, the the concept culturally now getting beyond practices and and law, but culturally this understanding of the thin blue line, right? And the idea that officers are essentially uh constantly being besieged by threat and that it's them, them against the world, is is this besiege mentality that we hear so often from police unions about you know what what it is they're doing. This is thinking uh almost in guerrilla warfare terms about the communities that they're supposed to be policing, uh, as if they're living in a community of insurgents that they're constantly having to try to put down. I was writing this book and working on this really for the better part of 20 years, and it was really hard for me to not see the connections in the way that we were, Americans were hearing about what was going on in Iraq and Afghanistan in terms of how those insurgencies were being discussed. And there's no shortage of literature now by scholars thinking about the blowback from you know military strategies in those wars and the policing tactics that have taken root post-9-11 in in North America. I think of the journalist Spencer Ackerman has written written about this brilliantly as well. So, you know, I I think those kinds of connections are pretty palpable in in a more kind of day-to-day way of thinking about things than than maybe in a in a political economy way.

C. Derick Varn 33:13

Yeah, to think about this in terms of political economy a little bit, uh to and to jump onto a different tension. A big thing I noticed in the, particularly in chapters two and three, is that there's this friction between system as a capitalist form of labor extraction, which is unique because other forms of slavery did not exist in a capitalist system in such a way. I mean, we can't really refer, I don't think we can refer to like the ancient Romans or the Spartans or or you know indigenous slave practices or anything like that as capitalists. But there's also slavery as a system of uh white public safety, which comes in direct contradiction sometimes to that. You point out to maximize

Qualified Immunity And Thin Blue Line

C. Derick Varn 34:01

profits, slavers force black workers to clear out all kinds of areas, including you know, dipping them in the western landscapes, stripping timber in different strumps, navigating steamboats, but this really actually hurt their ability to mobilize their populations because their populations were more geographically concentrated, even in the planter south, and they were often also you know moving through complicated jurisdictions. How did the planter's relent relentless pursuit of profit undermine and destabilize their own policing apparatus?

SPEAKER_01 34:41

Yeah, I mean, you the answers in the question, it did. Uh it it's the story, really, of the period from, I would say, the American Revolution through the Civil War, is this incredible acquisitive appetite of what is becoming an increasingly oligarchic system of enslavement that you know is is dovetailing with, if not at the heart of capitalism in the 19th century. You know, where you know, just to draw draw this out for a moment, the capital networks that are becoming so powerful in the South are all connected to New York and London at the end of the day. So this isn't, you know, this isn't uh distinct from the story of American capitalism more broadly, but rather I think a part of it, a chapter of it. And so, you know, the the there's no accident that the slave trade is being funneled from the East Coast into into the Gulf areas, the Gulf states, territories, and states. You know, every one of those ships has insurance contracts that are underwritten by major insurance firms, which again connected to New York and London banks. And, you know, they are they are part of the story of how the credit is available for enslavers to move west at such a rapid pace. Another part of the story in terms of the capitalist expansion is the role of the federal government. You know, the federal government here is beginning in the 1790s, but really aggressively after the War of 1812, is selling off the Western lands at heavily subsidized rates, in theory, to anyone who can pay for it. But the reality is that a lot of these lands end up in the hands of speculators and others who are buying huge swathes of it. And, you know, those make for very good spots for plantations, for instance. The third part of it then is native dispossession, right? And the role of the federal government in brokering this through allowing states to do what they want, states like Georgia, for instance, but then also, you know, through the Indian commerce system and eventually reservations of essentially safeguarding a white settlement that's going to be the property where slavery is expanded. And so, you know, it's it's you can't think of, I guess my point here is that you can't really think of the enslaver's expansion westward, southward. You can't think of it without the state as being a fundamental part of the story of American capitals in the 19th century. And that in turn, of course, is connected heavily with slavery. One of the driving forces for me in driving writing the book was that too often I think when we think about the story of state development in American history, it's a it's a story told kind of distinctly from the story of the South and slavery. That those are sold as almost anti-statist visions of individual authority. And I wanted to show that no, this is actually about the manipulation of the rule of rule, uh, rule of law to be what they wanted it to be, so it could be their state, so to speak. So that that was a big kind of part of what I was trying to do here.

C. Derick Varn 38:05

What do you think that that belief that somehow the the confederacy was just anti-big government or just anti-federal became so abundant? I used to always think about this when I was living in Georgia as a as a kid, because I would often be like, these people don't believe in in limited government at all. Why did why do people keep on attributing limited government to them? Even, I mean, yes, they use the rhetoric, but you just see what they do on a state level and how they interface with the feds. So, how do you think that myth became so prevalent as a kind of legal myth?

SPEAKER_01 38:41

You know, there's um a scholar named James Sparrow, who's a historian of the 20th century America, and he he wrote a book called The Warfare State. He opens the book with a long quote from

Slavery As Capitalism With State Power

SPEAKER_01 38:52

Senator Fritz Hollings of South Carolina, who basically says, you know, we have a situation where people use public roads, public resources, and all sorts of public goods, and then claim that they're anti-statist or that they've done their communities have done things without state intervention, and they're proud of that. And he he was sparrow there is kind of raising raising the curtains on this dynamic. Jefferson Cowie has written about this in you know incredible erudite terms as well. But I do think this is a uh a streak of American political ideology that goes back to really the the early republic in in significant in a significant way. Where in my view, the tariff debates that go back to the revolution, but really by the 1820s, 1830s, where you start to see the southern states, especially South Carolina, using the tariff as this uh you know big, bad, evil thing that is victimizing them and the at the expense of enriching other parts of the country. And I think it is that dynamic there which feeds heavily into the anti-statist rhetoric, the idea that the state has been corrupted, that it is taking from one to give to the other, and there's something illegitimate about that. So, you know, the the thing is that in my view, you're absolutely right that the this is more of a rhetorical trope than it is any sort of systematic practice. Uh, and I would I take that a step further and say that, you know, broadly speaking, in American history, I believe you can take strong expressions of anti-statism and find that they are obscuring visions of statism, um, that they are aggressive visions of active statecraft at the heart of it that are being couched in anti-statist terms. So, you know, the best example of this is, you know, in the modern-day conservative political thought, you know, they don't consider tax cuts to be acts of the state for some reason. Whereas they understand social safety net as being re-redistributive socialist politics. In both cases, the state is redistributing, you know, wealth, but in only one is it vilified, and the other it's not even considered to be an active state. So, you know, those are two status visions, sure, but one is sort of not even not even counted, and rather is blanketed with this uh anti-statist rhetoric. So, you know, I think it's a big story in American history, it's one that has been told a bit. You know, again, I mentioned Jeff Nikawi did an incredible job in that book, but you know, I do think there's a great deal more to say about it uh up to the present.

SPEAKER_02 41:49

Yeah.

C. Derick Varn 41:51

Fascinating. One thing you note in your book that I was sort of interested in is that you pointed out that this actually, while it unified whiteness as a barrier against class functions in some ways, and I think this is crucial, there are other ways in which it actually made class friction worse. So you you particularly talk about a lot of poor farmer laborers who were getting very frustrated with the with what we might call the planter class or the pant or the plant or autocracy or whatever you want to call them. Why were lower class whites resentful of being vergooned by the state to enforce this property regime

The Myth Of Anti Statist Confederates

C. Derick Varn 42:38

if they saw themselves as also benefiting from this property regime?

SPEAKER_01 42:43

Yeah, the the fascinating thing is about the you know the concept of the permanent emergency that we discussed already is that it's only a permanent emergency if you see it. And so there were plenty of folks who were not wealthy, not elite, some not even slaveholders or you know, uh actively owners owning of enslaved people who didn't see it. And for those people, it was very evident that the entire apparatus of slave policing in in early America was an enormous economic giveaway to the wealthy, and so you know, there's a tradition of the working poor and other sort of classes of non-elite classes of white people in the American South who can be counted in that category. I don't get to talk about them as much as I might like, but you know, there are people, scholars like uh Carrie Lee Merritt most recently, who has written about them, I think, in great detail, who will fight back and refuse to be uh part of a slave patrol, for instance, or you know, find themselves subjected to the very same coercive legal authorities under the banner of the permanent emergency that an enslaved person might, and they will cause trouble. The best example of this was the Civil War itself, because there the Confederacy, you know, is desperate to mobilize all the term they would use able-bodied white man, it could to fight the war against a better resource north. And so what are these people fighting for? You know, what is the thing that they are going to potentially lose their life for? Is it going to be for some wealthy slave owner to remain a wealthy slave owner? Because that's a pretty bad reason, right? To sacrifice one's life. Or is it going to be a different reason in the Confederate? Really struggled to generate the kind of nationalism that would have cohered a fighting force in a you know a way that could have been more successful. The desertion rates by 1863 and thereafter are pretty high. And the discontent, obviously, within the ranks post-Gettysburg is really quite quite significant. So, you know, I think you know that became an unavoidable moment where the class tensions they had to just sort of confront it and unsuccessfully, I believe, in that context. But it it is certainly a running tension going all the way back into the 17th century about this.

C. Derick Varn 45:31

Yeah. One of the things that you point out that I found a kind of interesting that I wasn't really aware of was one of the ways that they seemed to mitigate this conflict was through rewards, bounties, and exemptions from military service. How how deeply did this did this go and how successful was it as a way of mitigating this class tension?

SPEAKER_01 46:07

Uh it went pretty deep. You know, before the Civil War, there's certainly a tradition of if you, you know, if a if a person captured someone that they claimed as a runaway,

Class Resentment Rewards And Exemptions

SPEAKER_01 46:18

they were entitled to a reward. And sometimes in in some places the state would pay the award and the reward, and some places the enslaver who had lost the slave would pay it. But either which way we're talking about a financial kind of incentive here. And so I think that's kind of a break with the classical posti comitatis idea of compulsory service. It's a break with the idea of white vigilance for its own sake, right? This is being vigilant for a financial reward, which is you know playing into the growing capitalistic tendencies as well of the 19th century. And like how we get there. So, you know, I think that is that is certainly there. During the Civil War, we see it where there are attempts to exempt overseers from conscription because of fears of what happens if nobody's watching the slaves, then what happens to the bonds of white supremacy. The question of how successful it is is a difficult one. I don't think it's all that successful, frankly. I think that we do see a ultimately a system of law that failed and failed pretty often. And you know, we can attribute that in part to the incoherence of the the logic here, right? That they're that they keep offering to the class tension that we've talked about here. But the one thing we haven't mentioned that I think is crucial is also when it comes to African and African American, black American agency in terms of disrupting white supremacy, which is really the constant that we see throughout going back to the 1600s and up through the Civil War and thereafter, that no matter how arcane the punishments became and how systematized and centralized and the rhetoric, blah, blah, blah, it never was enough. You can't and this goes back to the you know, the contradiction at the heart of slavery itself, the idea of removing the humanity from someone and turning them into a chattel, into prop mere property. You know, this is a kind of moral and physical impossibility that enslavers were constantly running up against. And so, you know, you put all of it together from that through the class tensions and and the incoherence of the logic and ideology. You know, this is ultimately a failed system, but one that you know was bloody and persistent, and that they never stopped trying to perfect all the way up till the very end.

C. Derick Varn 48:56

So this actually is a good segue to to uh how you started the book because you start with um a roadside sign on Highway 17 in South Carolina, which I've actually seen about the the 1739 Stono Rebellion. And you focus uh quite a bit on Jimmy slash Cato. I mean, it depends on how we're referring to them. And then you, of course, talk about the more famous example of Nat Turner. Instead of treating them as like merely reactive rebels or just incidents of flip agency or African agency, you do you describe them as military strategists who were interested in their own sovereignty? How did their sophistication and their counter tactics uh expose the fiction of total mastery that the enslavers wanted to project? And and more so, why hasn't liberal historiography around them recorded it that way?

SPEAKER_01 50:04

So the the second question I'll get to, I think that's a that's a that's a tough one that gets into historiography a bit, but you know, the the military strategy question, I'm I can't take credit for uh thinking of this this way. I I was borrowing a concept from the scholar Vincent Brown, who was had written about this this revolt, Tacki's revolt, and come up with the idea that this was one chapter in a centuries-long kind of warfare between its flavors and their so-called captives. And, you know, because we see the recurrence of tactics and sometimes the memory of previous rebellions, that these should be understood on a continuum rather than as episodic moments of you know um tensions spilling over and things of that nature. But rather, you know, we should think of this as a single chronology. I think that's pretty helpful to understand why why enslavers thought of it this way. I mean, they there's a book to be written about the enslaver imaginary, you know, and their obsession with the idea of their own death because they are deeply immersed in thinking this way. And so, you know, someone like Nat Turner, who, you know, they Nat Turner and and Stono, the the what they have in common is, and what many of these have in common is a studied knowledge of the captors and using, you know, kind of weapon of the week, if you will, here uh being thought of as captives and as slaves, but meanwhile using access to geography and knowledge of the personalities who are attempting to own them against their captors. And so they know which houses to go to, they know who to kill and who to not kill, they know where the guns are stored, how and how to use them, and they know the geography arguably better than their captors. And so these are you know the patterns that we see, and I think that that is why warfare and military strategy is a good way to think about this. During the the Naturner revolt, there the panic among the the military, you know, trained folks who are there to put it down is palpable in their correspondence. There they really are freaking out about just the the strength of what they're up against. So, your other question about why liberal historiography has not understood it this way. I do think some have, and I, you know, I don't want to do a disservice here by by overlooking that. There are there is a tradition that is informed in the mid-20th century by Marxism, you know, thinking of Herbert Attacker, and then up through, you know, in when we get into African-American studies, uh, understanding slave revolts in in a much more central way to the American story. So uh Gerald Horne's work comes to mind here as a good example. So there are certainly examples of people who are thinking of things uh in this way, but you know, I do think there was there had been a disjuncture between the consensus historian's understanding of what American history was and what exceptions to that story were, or perhaps side stories. And that was, you know, heavily white middle class story. I mean, it's only in the last 30 or 40 years that we've seen that giving way to alternative models and interpretations. And so this one is yet to be central. I think you're right about that, but it it is, I think, inevitable that it gets there. There's a brilliant book by a scholar named Jarvis Givens called Fugitive Pedagogy, and it's all about you know, this tradition of black history that was being told by black Americans while Jim Crow was still reigning in places like public schools that of course were segregated at the time. And so the tradition is there, and I think it's just a matter of giving it its due and you know, allowing people to understand that the interpretation that had reigned for much of the 20th century is no longer uh the dominant one.

C. Derick Varn 54:38

So you have talked a little bit about other areas of common law. I think about particularly in chapter four, where you talk about the ripples that happened in America with the British case from Seth V. Stewart, which is in 1772, which you know would affect the the then colonial US because the independence hasn't happened yet, which determined that slavery was morally odious, that it could only exist by explicit positive law, meaning that an enslaved person became free as soon as they touched free soil, basically. Which you know conveniently did mean that

Rebellion As Strategy Not Outburst

C. Derick Varn 55:26

also if you were enslaved in the colonies and that was not free soil, you were still enslaved, but nonetheless, the how did the fugitive slave clause in Article 4 of the Constitution seem to be an explicit reaction to that? And also, what were other reactions about it in the southern colonies? And then, you know, again, as I'd like to ask you most of these questions, how does that affect law now?

SPEAKER_01 55:57

Somerset is probably one of the more enduring mysteries, I think. Uh, and so this is one of those areas where the historian has to make the interpretive choice. And so, you know, I think we all wish there was a detailed, you know, primary source record of people saying, oh, the Somerset decision, that was really good or really bad. But the reality is a bit more complicated. There wasn't a there wasn't the kind of mass corpus of documents that we would like to have to understand of just how powerful it was. And so I'm drawing a bit of inference here just by saying Somerset did this, you know, and it said essentially that, you know, if you if you were on free soil, then you were free. And looking at the nature of the fugitive slave clause of the constitution, which says, you know, quite extraordinarily that if you that an enslaved person or fugitive from labor from a state where slavery exists goes to a place where it doesn't, then that person is still considered to be a slave or servant, and that you know, that bond doesn't break, that status doesn't break. So that seems to be a rejoinder, right, to the the Summerslift decision. And uh, you know, I think it's it's hard not to see that for me. I can understand why scholars would say, well, nobody was really discussing it in huge detail, therefore it couldn't be a couldn't be the driving reason why we have a fusion of slave clause, but to me that seems not entirely plausible because it it really does answer the Somerset doctrine pretty pretty definitively. You know, I I read the Fusion of Slave Clause of the Constitution as immensely important. It is a property right like no other. There's nothing in the Constitution that's remotely close to that. And I go through a bit of how we end up with that clause next to the extradition clause, you know, extradition of criminals from one state to another. We kind of get that. The state authority is going to be involved to help one state enforce its own rule of law. But the Fusion of Slame Clause is ultimately about private enslavers and their property rights. And so this is a huge giveaway to enslavers that I don't think has been appreciated very significantly in uh in the literature over time, even though it's kind of obvious, I think. So, yeah, I think that ends up being that ends up being a significant factor later on as well, because it's the abolitionists by the 1840s, 1850s, who start returning to Somerset and trying to tell, retell the story of the Fugitive Slave Clause as a sort of a key part of what they're thinking of as a pro-slavery constitution, and their critique of a federal government, which at that point they see as being entirely in the vision of enslavers under their control. The question of what it is, the relationship between that and today is a tough one. You know, I think one way to think about that is the concept of federalism. And federalism is the thing that makes the organization of the colonies into states into a federal government such a complicated thing to understand because we're talking about multiple, multiple and material legal traditions that are all coexisting at the same time, developing in different ways, and occasionally have these flashpoints of interaction that uh and conflict as well. And so today, if you want to think about that, you know, uh there's certainly areas of law where some states are granting, you know, certain rights and other states deny those rights. And I think the question then becomes who is entitled to what and in what place? And so you want to think about things like reproductive rights, you want to think about things like marriage equality. You know, these are these are fundamental to human condition in a lot of ways, right? But but depending on where you are within the American Republic, you could have wildly different expectations and reality of what those rights are. And so that that is a pretty similar lay of the land to what we saw with what is promised by Somerset and then sort of quashed by the fugitive slave clause and then the subsequent fugitive slave laws. You know, we can think about sanctuary cities and that kind of thing as well, you know, today. Certainly questions of federal exclusivity, but that now with ICE, you know, some states and cities saying, well, we're not we're not in the business of being uh people catchers, so uh we won't be part of that. Whereas certainly we've seen elsewhere police forces say we are readily going to take part in that. So yeah, I think that would probably be the best way to think about it in terms of contemporary law and politics.

C. Derick Varn 1:01:05

One thing that I've thought a lot about over the past, probably since I read Seattle or James as like 20 years ago or something, is the the relative place that the Haitian Revolution plays in American discussions on all these topics. You note that it led to kind of a bitter irony where people who were inspired by the rhetoric of the American Revolution are also used by some of the founding fathers, particularly in the Democrat-Republican Party, to weaponize political panics about fear of sleeper agents and you know, black mariners and

Fugitive Slave Clause And Federalism Echoes

C. Derick Varn 1:01:53

public assemblies where black where free blacks might show up. But you also point out that it was actually white refugees who imported tons of Caribbean slaves directly into the US. And if there were anything like sleeper agents that would have been there. How did this tension fundamentally alter local ordinances and federal customs regulation?

SPEAKER_01 1:02:19

So the Haitian Revolution, you know, it can't be overstated just how massive that was in terms of taking what had been a fairly localized concept of the permanent emergency and nation or internationalizing it even. And the idea that the panic was coming from abroad, you know, in addition to the panic that was within the threat from within, that was that was a kind of overwhelming moment, I think, for white fear in the history of the American Republic. And so, yeah, you're absolutely right that we do we do see, you know, at the local level up to the state level, you know, communities so fearful that in enslaved people being brought from Sand Domingue will literally import the contagion of black liberty, you know, as if this is a disease that is highly communicable. So the historian Michael Schopener has written about this uh extraordinarily well, talking about South Carolina, but I think it's a great great idea to think of it this way. And so, you know, ordinances, yes, we see those, you know, barring the importation or the residence of uh these imported slaves from Sandamang. But beyond that, we also see just panic and violence, you know, the reaction no different if if there had been an actual slave rebellion, mobilization, patrols on the street, uh, vigilance, this sort of language being being widespread. At the state level, you're seeing states like Louisiana have a really vexed relationship with, on the one hand, wanting these refugees, you know, some of them are pretty wealthy and high status. And so the idea that they would be part of the fabric of society there, all already polyglot, you know, French influenced society, yes, but then the fear of uh-oh, what if we import the the black republic into where we are, then you know, that becomes that becomes a significant kind of problem. And so, you know, the idea that this cuts to another sort of thing that I don't get into heavily, but it's there of states being in charge of immigration controls in in the early republic. You know, that was definitely this is why they're able to think this way, that they're going to exclude populations and and uh some populations and uh not others. In the federal government, you know, it really becomes a question of which side the federal government wants to be on, the United States wants to be on. Is it the side of the black revolutionaries? Is it the side of the deposed white enslaver class, or is it on the side of the European empires? So, of course, the United States had just fought a war against Great Britain, you know, not too long before the Haitian Revolution. They have they're about to enter into a conflict, a quasi-war with France, the other kind of big power. They're about to have you know these negotiations with about the Louisiana Purchase. So these are these are fraught tie-ins with the Europeans. And the idea that they would side with them over the Black Revolutionaries may have seemed a little outlandish, but that's where we end up, you know, ultimately with with the Jefferson administration in in the early 19th century. So it was it was absolutely a tipping point in in terms of white fear and and transforming this problem into a kind of massive national one and part of a psyche about about slave revolts, rebellions, and the threat of this kind of black republicanism to the American way of life.

C. Derick Varn 1:06:11

Yeah, I I think this becomes very clear in chapter seven when you talk about the Christiana resistance and how afraid certain Southern governments were. You talk specifically about the trial of Kastner Hanway. Who you know doesn't he doesn't even like help in the fighting. He's not he's not a John Brown figure, but he simply refuses to serve on a positive Thomas to kill to catch these self emancipated people. You know. He wasn't charged with a misdemeanor, and he wasn't even charged with just refusing to do, you know, conscription. He was charged with treason, which also is something that clearly uh he wasn't guilty of since that is defined in the Constitution, and he didn't do it. Um what does this extreme escalation reveal about both the permanent emergency but how fragile the slave power really was by the late by the 1850s?

SPEAKER_01 1:07:20

Yeah, I think that's a great connection here between the this permanent emergency problem and you know approach to the rule of law and you know, charging someone who is simply not complying with the fugitive slave law as opposed to actively resisting it, to charge them with treason and then to go to trial with it. And, you know, for the trial to be essentially a farce that was evident to anyone who was paying any sort of attention that it was impossible to get a treason conviction for this, but yet persisting nonetheless. You know, kind of such was the the power of this commitment to the fugitive slave law of 1850 as the thing that was gonna solve the problem. And it was gonna, you know, the the South, the Southern political leaders really believed that the fugitive slave law was the thing that was finally going to get northern uh localities and states to stop coddling abolitionists and to sort of take a highly conservative turn in how they understood the law. And when it doesn't happen, you know, when when a jury of his peers, you know, kind of takes minutes to laugh off this charge of treason, it really is the the air just being sucked out of the entire enterprise, I think, in in my reading of it, that this was such a high-stakes prosecution that you know for it to fail so catastrophically was a sign that the North was not going to be strong-armed into this vision of the rule of law. So Hanway is just one of these figures in history who's so unassuming and and so unlikely to become a kind of icon of a moment. Uh, and yet he is, he is, because he's this diminutive figure who's sitting there quietly, who uh doesn't say much of anything, either to the federal authorities or on trial, and and sort of this moment of this tipping point where to me the civil war is largely unavoidable at that point, if in fact the South is going to press on, which it does. And I tell the story in the book, really, of the 1850s, being this you know, sustained conflict between abolitionists who are using their own vision of the rule of law and what it means, and that they are the rule of law against enslavers who have the letter of federal law on their side, but but can't enforce it because they don't have the force. And so it is it is ironic that their system of law, which based was based so heavily in the South, on the overwhelming preponderance of physical force for white men once it gets to the north falls apart, uh, having run into that same dynamic. So it is, you know, Fusion Slave Law of 1850 is where I started this project in a lot of ways 20 some odd years ago. And um to it then becomes the the turning point in the book, probably not an accident.

C. Derick Varn 1:10:18

I mean, this brings us actually to the next turning point. Like when we get to your later chapters, you you talk about how the collapse of the Confederate military really drained the formal infrastructure of slave patrols and Posse Comitatus and whatnot. However, you also observe that the pre-war practices didn't just vanish. And while some of this has been studied explicitly in the case of the first and to the lesser degree, the second clan. Um you talk about scout detachments and other regulators and and things that are basically paramilitary terrorist groups to enforce both labor discipline and the override the occupational authority of the human army, which

Reconstruction Terror As Shadow State

C. Derick Varn 1:11:05

sets up the grounding for Jim Crow. What are the legal effects of this and and why does it take so long to stamp out?

SPEAKER_01 1:11:17

I don't know if it was stamped out, if I'm honest.

C. Derick Varn 1:11:21

There is a third clan, so yeah. Yeah, exactly.

SPEAKER_01 1:11:26

So, you know, it's a fascinating story. I think political historians have done have done great work to talk about the the dalliance between the Democratic Party in the 1860s and 1870s, which is you know operating in exile in the South to some extent, but the you know, the close association or very clever manipulation of popular violence by white supremacist terrorist groups to give these political parties, uh political party what it wants, which is a return to power. And so, you know, it is a it is the question that I can't answer that you know would take would probably take some archival material, which I'm not sure is there, but is about the extent to which this is coordinated between party politics and partisanship on the one hand and Klan White League, etc. Terrorism on the other. You know, certainly the White League knew when an election was, they knew where the ballot boxes were, they knew who they didn't want to vote, they knew who to shoot at and who to terrorize. So, you know, and there's certainly there were they were there were certainly some in those groups who were high-ranking party officials. So, you know, that's pretty, pretty decent evidence, but it's not quite one-to-one coordination. But the legal effects of, you know, what I I try to argue in in the book is that, you know, from from the vantage point of thinking about a legal system and appellate law and things of this nature, it's pretty easy for us to say, well, man, if that wasn't the law, it was vigilanteism. But, you know, talk to someone who lived through it, and you ask them, you know, who was in charge at this time, what did the law feel like to you? And is probably going to get a very different answer. That for them, it was the people with the guns who who were preventing them from exercising basic human rights, let alone sophisticated political rights. And so I think about it as a kind of the Klan and other groups as a kind of quasi-state that is acting in the shadows, a shadow state, if you will, that is in tandem with the reorganization of democratic political party in the 1860s and 70s. And to me, it's no accident that by the late 1870s, when you have really the so-called redeemed Democratic Party state apparatuses back in power, that the these white terrorist paramilitaries largely fade from the scene. That's a pretty convenient timing. Doesn't mean they disappear, they're ready to mobilize pretty quickly if need be, but they're not the ever-present kind of shadow state that they had been since 1868. And so when I when I talk to a law, legal scholars, they they will fight back and push back against me and say, that's not law what you're talking about. That's violence. And my rebuttal is to say, you know, well, it sure as hell seemed like law to the people who were there, and it was dovetailing with the formal kind of political and legal processes at the time. So, what are the after-fects of this? What are the legacies of this? I mean, it's it's pretty dangerous to think about, right? That in fact this was such a successful counter-revolution. If you want to think about reconstruction as a potential revolution, unfinished revolution, the great scholar Eric Foner calls it, right? Then what does that mean? Of uh how do we understand the Klan and the White Beacon and things of groups of this nature, you know, who were pretty successful in getting what they wanted. And they couldn't get rid of the 14th Amendment, sure, or the 13th Amendment, but they they were able to get their allies themselves back in power. So that's a pretty dark precedent for American history, and to think about the role of force as an alternative to formally constituted law and the rule of law. So, what can a popular majority do if it has the right amount of armament and the right uh opportunity? Well, that case study, if you will, teaches us it can do enormous damage to the fabric of a of a republic.

C. Derick Varn 1:15:51

Yeah, uh that's a little haunting, but also not entirely surprising to think about. I was also gonna make a quip that you know they didn't get rid of the 13th and 14th Amendment yet. Believe it or not, I've heard talk of that recently with the recent Supreme Court decision about gerrymandering, and I was like, I haven't heard this since the early 80s, where they were being dishonest about wanting to get rid of the Civil War amendments. It's been a while since I've heard that just baldly stated like that. Yeah. Another irony, and this is a deeply bitter irony, actually, that you write about in your book is the effects of the anti-lynching

Anti Lynching And Police Professionalization

C. Derick Varn 1:16:38

movement. And the reason why it's bitter is that it cuts in two ways. I mean, it does successfully transfer the idea of lynch mobs as, you know, paralegal deputies of public safety and good whiteness into an image of lawless murderers, but it also seems to have been a big push to formal formalize and professionalize Jim Crow's enforcement in the police force in a more direct and explicitly legal way. Like, how how are we to look at that like seeming paradox?

SPEAKER_01 1:17:21

Yeah, I think this is this was a unavoidable strategy for the anti-lyching movement because you know they didn't have many cards to play to begin with. They were shut out of kind of the activist channels that had influence at the federal level or or at the state level in many places, let alone you know, talking about the the Jim Crow voting patterns that would have would have prevented many from being able to exercise political rights at all. So the idea that they should support the idea that they come up with is to support a revitalized vision of law and order, and that you know, it should be the police forces, the formally constituted police forces who have sworn an oath to uphold a law and have sworn an oath to the constitution that they should be the ones to decide right from wrong. They should be the ones attached to the courts to bring in wrongdoers. It shouldn't be white rage, you know, connected to the sort of older mode of white vigilance and and and uh slavery times. So, you know, I they just didn't have an alternative here to think about. And I do I do think part of it was, you know, I I focus on the anti-lynching movement kind of in a narrow way here, but you know, to to think more generously as uh in terms of a legal vision here, a constitutional vision, you know, they were thinking about a better republic. They were thinking about a fairer uh adjudication system and enforcement system. You know, this was this was a broad-based vision of which getting rid of lynching was one part, important part, but then there was for them kind of a next step and other things to do. You know, one way to think about this is a comparable example would be thinking about segregation. And when we get to the civil rights warriors of the 1940s, 1950s, who are trying to think of ways to undo segregation, you know, it's part of a vision of civil economic social justice and equity. And they they can't think of undoing segregation without those other things. But what happens then, of course, is that we only get the formal doctrine of segregation falling without those other things of equity and social justice alongside it. So I think you you see a similar uh dynamic at play where anti-lynching is kind of somewhat successful in the early 20th century at getting some modest gains. But as I as I point out in the final chapter, that it's it doesn't take long for the racism that had defined white power, white policing in previous eras to to find its way into the newly modernizing police forces of the American South.

C. Derick Varn 1:20:32

Yeah, I I guess that that is an uh it's a paradox whenever you deal with something being an informal wrong versus it being just formalizable. Yeah. And I I I like I don't want to like tar the anti-lynching movement with anything. It's not like they there was a whole lot of other options for them to do, nor is it obvious that police would inherently go that way, but it isn't that unobvious in hindsight. Like it like in hindsight, it makes a lot of sense. Uh yeah, one of the things that that to kind of wrap this down and then kind of get to the end of the book because that's about where we're at now. There's two more questions I'd like to ask you. One is even after the 13th Amendment, we see the return of lost cause ideology, and you know, the cool, simple slaveholder myth, and the softening of language around this, even which corresponds with the beginnings of Jim Crow, but isn't just tied into that. You notice historians like Ulrich Bonell Phillips actively whitewashes, you know, the the heavily documented history of state law enforcement to kind of invent a myth of the benevolent, easy-going slave holder. I would even say that this gets even by some former Marxists like Eugene Ginavese maintained

Lost Cause Erasure And National Reunion

C. Derick Varn 1:22:06

for a long time in the 20th century. What was the erasing of the history of the of the slave police state doing? Why was it so important to both Jim Crow, the lost cause narrative, and honestly to US national unification in the 1920s?

SPEAKER_01 1:22:33

The you know the erasure of the the slavery policing methods, practices, system laws, all of it is a necessary step for the lost cause vision to come to fruition because you know you it it gets awfully tough to think about benevolent slaveholders and kind of so-called freedom-loving men while also acknowledging the police state that they had tried to build for centuries. And so I think that's one reason why we get the kind of silencing of that story. The other part has to do with mat the nature of mastery itself, right? And so I alluded to before I mentioned that this sort of long history of black activism and self-emancipation rebellion, which had uh sort of fallen outside of the mainstream of American historiography. And I think here, you know, that is that is a huge part of the story because the benevolent slave master story simply is incompatible with that chronology of resistance to rebellion. Because, you know, ultimately, as WB Du Bois and a few others would ask in the early 20th century, well, you know, what were they rebelling against if they were so happy under the master's enlightened dominion, supposedly the enlightened dominion? Why did they all why did so many run away? Why did the why did they immediately run to Northern Lions during the Civil War? It wasn't was it all abolitionist propaganda and brainwashing? That seems pretty far-fetched. So, you know, I think to to in order for this benevolent slaveholder idea to make any sense at all on a logical level, the story of this policing tactics and and statecraft had to be aggressively pushed aside. And so we see the strength of this running through the way American history is taught to undergraduates and graduate students up until really the late 20th century, which is quite striking to me. And even with you know, compelling new histories of the so-called New South and the post-Civil War period that are that are really quite good about power and class formation and things of this nature, we still don't quite see the the any kind of significant discussion being given to the extent to which they had relied on the state and built their own state to both accomplish their capitalistic goals but also to to you know safeguard white safety in in such a significant way. When it comes to national reunification, you know, that there I'm less sure of the answer because I it's pretty evident to me that uh everyone knew what was going to happen with with the slaughterhouse decision and Crugshank and up and through up through the so-called redeemed states taking their place back in Congress of the Democratic Party. You know, it's pretty evident that everyone knew that the Reconstruction was over and black Americans in the South were left on their own. That they it was up to them if they want to defend themselves or simply succumb to Jim Crow. And of course, we know that there's a tradition of activism which which continues there, but but largely without any aid from the federal government or certainly those state governments. So, you know, there I think it is sort of a wink and a nod. Everyone knows what's happening. That there's no secret at that level politically. And so the Pasi Comatadas Act of 1878, that's your best evidence for this, right? Where the South says a condition for us of re-returning here and of ending the strife between North and South is a guarantee that federal troops can no longer be used in civilian law enforcement. So, what does that mean? It means that you know the southern states' segregationist laws and the color line can be legislated how they want and enforced how they want, and the federal government cannot really do anything about that, even if it if a federal court were to find trouble with any kind of southern segregationist law, they simply would never have the manpower to overwhelm, say, the White League or the Klan, etc. So, you know, it is there pretty clear that everyone knows the score, whereas in the broader historiographical story, we know that some certainly did, but by the time you get into the 20th century, uh a lot of people are just taking it as a given that that these slaveholders back in the 19th century were kind of anti-statist and opposed to police regulations.

C. Derick Varn 1:27:36

Just bringing me to you know something you talk about in your epilogue, and this would be my last point. You look at the modern re uh frameworks for castle laws, and more importantly, castle laws are maybe not as guilty of this, but they stand your ground laws, which are. You want that these laws essentially functioned to expand private castle document doctrine into the public space, but also deputizing private citizens with policing powers in ways that we had crawled back during the 20th century. As a historian, when you look at incidents where like black joggers or just random

Stand Your Ground As Historical Echo

C. Derick Varn 1:28:23

teenagers are targeted by self-appointed civilian protectors, how much of this is a direct echo of this legal architecture that came out of slavery?

SPEAKER_01 1:28:37

I think what I was trying to do in the book is to put it in front of the reader to say, you know, we we know what came before, and we know what we have now. And the question is, do we I think how we answer the question, are these connected, really tells us a lot about the present. Because, you know, as I suggest at the end, it's it's wholly plausible to see a turn in American law and law enforcement that embraces the practices of old, where popular majorities with force are able to sort of control the way laws operate. That is that is not off the table at this point. And so, you know, do we want to see that as the direct inheritors of the tradition of white power from the centuries past? And you know, that that I think that depends on on the present whether that turn is made. If not, and in fact, there is a kind of movement to restore the rule of law, to restore government institutions, uh, anti-corruption movements, these sort of things, then I think the story I tell in the book can be cast aside to some extent as a a chapter of a by-not American past. But if not, and in fact this trend that we're seeing continues, then unfortunately, as I suggest in the book, then it is uh is certainly appears like precedent and and prelude.

C. Derick Varn 1:30:15

You said you were working on a project on the Confederacy. Would you like to talk a little bit about that?

SPEAKER_01 1:30:21

Yeah, so I I got really interested in the Confederacy working on this book about slave policing and that chapter about conscription and kind of the system falling apart. And it really led me to wonder about some of the things we talked about today, in fact, some of those themes about the language and rhetoric of individuality, individual freedom and liberty. You know, this is very much the rhetoric of the Confederate States of America at the moment of its genesis and the creation of the Confederate Constitution, the idea of withdrawing a so-called oppressive state apparatus from people's lives and letting people live laissez-faire. And of course, the reality of the Confederacy is one of enormous state interventions

Next Book On The Confederacy

SPEAKER_01 1:31:02

in virtually every part of people's lives. And so that contradiction, or what seeming contradiction, is what I'm interested in. And my argument that I'm playing with here is that it's not a contradiction at all, because you know, this goes back to the idea of the language of liberty and the rhetoric of freedom masking a kind of vision of the state, which is extraordinarily coercive and driven by force. And so ultimately, you know, what we see uh in the Confederacy is a state that is reminiscent really of early modern Europe and absolutist monarchies, as opposed to a kind of rights-based system of rule of law, administrative law, and the law of officers, all of that is not it ends up being pretty peripheral to the way the Confederacy works. And so, you know, there again, I want to pose the question is this is this an exceptional story in the in the American past, or does it have a broader reach into the American experience? And so I'm just at the beginning stages of it, but but uh wasting no time and and getting immersed.

C. Derick Varn 1:32:16

Yeah, that that is fascinating to me. I remember encountering back when libertarians were more common, all these libertarians who would do weird defenses of the Confederacy, which would baffle me at the time. Don't baffle me now, actually, but but but did in the in the moment. And I have been really hankering for someone to dismantle that because you know, as a person I I used to teach a English class primarily to black students at a military academy that was literally in the building where Georgia succeeded from the Union and uh participated in the civil war. So, like my material history is tied up into to the the relics of all this. And so and I also grew up with with monuments to the war between the states, or or that was the nicer term. Um, there were also monuments for the war of northern aggression, yes. And for people, I'm only 45. This was not this was in the 1990s and 1980s, this is not that long ago. And yet I would hear all this all this time about how you know, and particularly in right-wing circles, how the Confederacy was like better on civil liberties. And I'm like, in what world? Because it wasn't just on slavery either, like it's it's like what do you want? I guess the only argument that you might have, and even this is deceptive, is that they were slightly better on an indigenous land right, maybe. And and I think only to piss off northern states, basically.

SPEAKER_01 1:34:02

Well, I think they were better on it after having taken a lot of the land. At that point, they were said, okay, we'll we'll sign some treaties of alliance, but uh you know the the ship had really sailed on expropriation at that point, right?

C. Derick Varn 1:34:17

That's that's a good point. Where can people find your your shorter work, your your socials, any any other thing you're doing publicly facing?

SPEAKER_01 1:34:25

Yep, so I'm I'm on Instagram at Rao underscore underscore galtham, which I know is not the easiest handle, but alas, it is Instagram, and then Blue Sky is where I've migrated in a post-Twitter world for myself at Galtham Rao. And I have a website as well, galthamr.com, where I try to keep updated on appearances and writings. And yeah, that's pretty much where I am.

C. Derick Varn 1:34:54

And I've been holding a paperback copy of this because I have a press copy. But the when the time this comes out, and actually, even right now, I think this came out

Where To Follow And Read More

C. Derick Varn 1:35:05

last week. The real deal, yeah. The real deal, nice hard cover cloth version is available and it's not even super expensive. And uh I'm sure there's plans for a paperback version, but when might that be available for people who are a little bit resident to buy hardbacks?

SPEAKER_01 1:35:21

I'm not quite sure of when, but it shouldn't be too long. I know audio is also coming pretty soon in the world right now, so uh should be pretty soon.

C. Derick Varn 1:35:30

All right. Well, thank you so much for your time today. I really enjoyed it, and I I do think people should really read this book as a Civil War obsessive kind of, and a person who's obsessed with the Hayes Compromise and Reconstruction and all that. And it's legacy in law. This book actually did open my eyes to some things I hadn't really thought about, and I think I know more about this topic than the average person, so um, so I I I would tell people to pick it up, it's pretty eye opening. Thank you so much.

SPEAKER_01 1:36:08

Well, thank you. I appreciate it.