Cameron Sauers reviews Giuliana Perrone, Nothing More Than Freedom

Giuliana Perrone, Nothing More Than Freedom: The Failure of Abolition in American Law. (Cambridge, UK: Cambridge University Press, 2023). $55.00 (hardcover).  316 pp.

Antebellum and wartime legal contracts for the sale of enslaved people were a pressing question before Reconstruction courts. 40% of the cases that Perrone analyzes involved the sale or hiring of an enslaved person. Competing interpretations of the Thirteenth Amendment left judges to decide whether those contracts were still enforceable, or, if they had become void. Those who favored the enforcement of these contracts emphasized commercial law doctrine and felt that a ruling otherwise would interrupt longstanding jurisprudence on contracts. Abolitionist judges countered, using the rational of Radical politicians, that the abolition of property rights in people required the invalidation of these contracts. These contracts were the instrument of slavery and could not be allowed to stand. Ultimately, in a recurrent theme, the abolitionist vision narrowly lost out. Perrone’s careful attention to the rulings reveals deeply divided courts ultimately deferring to commercial law. The triumph of slavery’s capitalism – and law – became most clear in cases stemming from the enforcement of debts for slaveholders rendered insolvent after the loss of their human property. Most judges were content to allow the financial mechanisms that had undergirded slavery to continue to function unimpeded. Money for enslaved people continued to change hands. Ultimately, in the economic rulings of post-Civil War Southern courts, the Thirteenth Amendment’s potential as a tool to “achieve comprehensive abolition” was restricted. (16)

A second question emerged from these cases: when did slavery become illegal? Long before historians argued about how slavery ended, these jurists had to define an answer. There was no precedent to rely on. Judges determined when and how emancipation happened using information about the military, such as including troop movements and orders from Generals, alongside the Emancipation Proclamation, state law, and the Thirteenth Amendment. Again, the abolitionist position did not win out. Most cases “crafted contorted judicial positions that acknowledged the federal government had in fact liberated 4 million bondspeople while simultaneously denying that the state had the authority to implement abolition.” (77) The implications were immense, as these cases delineated the boundary between slavery and freedom. With these rulings came the curtailment of freedpeople’s ability to exercise the rights of freedom.

“The Supreme Court delivered the final blows to any hopes for abolition. Perrone’s reading of Supreme Court cases, both forgotten and famous, highlight the three main concepts that doomed abolition: the denial of secession’s legality, the return of the distinction between state and federal citizenship, and the rejection of social integration as a fundamental right of citizenship. “

Perrone’s most compelling chapters explore how conservatism in court rulings frustrated abolitionist legal thought and undermined Black citizenship. Judges were confronted with emancipated people and no clear definition of their civil standing. In the predominant reasoning, judges “described slavery and enslaved people in the abstract – as if slaves had only been property, not people,” ultimately sidestepping the possibility that “freedpeople’s former status as property might influence their post emancipation lives.” (148) No longer enslaved, freedpeople were not full and equal citizens. A new, subordinate category emerged: the former slave. This complicated, if not outright confusing, legal thinking had profound implications in the lives of freedpeople. Cases stemming from domestic questions, such as marriage and property inheritance, revealed the profound legal disadvantages that former slaves faced before the courts despite Black litigants continual challenging to judges to unmake the legal world that disadvantaged them. Rulings “made it possible to treat former slaves as citizens equally affected and bound by the law’s duties and obligations as white Americans” while also “neglecting the consequences of enslavement.” (199) Under this duality, freedpeople were retroactively held to legal standards that had not applied to them. The question of retroactive rights weighed heavily on local courts and the 1875 SCOTUS case Hall v. United States. Complicating the doctrine of retroactive rights was interracial marriage and relationships.  Deliberations about the acceptability of racially heterodox families became grounds for judges to establish the limits of equal citizenship. Ultimately, “they determined that the Reconstruction Amendments removed the disability for former enslavement, but not the stain of race itself.” (236)

The Supreme Court delivered the final blows to any hopes for abolition. Perrone’s reading of Supreme Court cases, both forgotten and famous, highlight the three main concepts that doomed abolition: the denial of secession’s legality, the return of the distinction between state and federal citizenship, and the rejection of social integration as a fundamental right of citizenship. The variety of contested legal interpretation that form Nothing More Than Freedom’s core came crashing down in Supreme Court rulings that standardized responses to post-emancipation litigation and paved the way for the legal edifice that undergirded Jim Crow. The Chase and Waite courts, in this analysis, were committed to racial inequality before Plessy v. Ferguson.  Though justices on the Supreme Court accepted some changes to law, they “did not abolish the larger set of customs and unequal relationships engendered by slavery.” Resultingly, the justices “ensured that freedpeople and their descendants enjoyed an incomplete form of citizenship.” (238)

Nothing More Than Freedom merits careful, considerate reading. Historians should become familiar with this text as a model of legal history and emerging cornerstone in the large historiography of race, citizenship, and the law in American life. Perrone’s careful to attention private legal cases across the South offers an important new interpretation on how Reconstruction became an unfinished revolution. The two competing legal interpretations offered by abolitionists and counterrevolutionaries are dissected in prose that explores the complexity of 19^th century law without punishing readers. In elaborating on the missed opportunity of abolitionist law, Perrone makes a powerful connection to ongoing, 21^st century struggles to achieve full and equal citizenship for all. The work of abolition will only be completed with new, equitable structures of law and governance that eliminate the vestiges of slavery and inequality from American law. Guiliana Perrone’s Nothing More Than Freedom deserves much praise for offering scholars a historical model to learn and teach from.