Citation: 18 Cardozo L. Rev. 451 1996 - 1997

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"SO TALL WITHIN"-THE LEGACY OFSOJOURNER TRUTH

Peggy Cooper Davis*

INTRODUCTION

I take my text from Professor Harris's rich discussion of So-journer Truth's life narrative. I begin, as Professor Harris began,with Truth's assertion of parental right. When her five-year-oldson, Peter, was sent by his owner from New York to Alabama,Truth agonized over the loss of contact between herself and herchild. She feared that Peter would lose the opportunity, owed tohim under New York law, of liberation at the age of twenty-one.1

Truth's insistent cry, "I'll have my child again," was initially dis-missed by incredulous slaveholders.2 But it became a theme ofstruggle as she repeatedly walked miles in bare feet, resolutely de-manding of lawyers, judges and people of influence and good willthat Peter be returned to New York.3 And it became a cry ofachievement as Truth finally reclaimed her child, vindicating rightsshe had pressed in unfamiliar and sometimes hostile forums.4

* John S.R. Shad Professor of Law, New York University School of Law.I acknowledge with gratitude the administrative support of Dulcie Ingleton, the edito-

rial and research support of Sarah Thiemann and Jennifer Lynch, and the financial supportfrom the Filomen D'Agostino and Max E. Greenberg Research Fund.

1 For the facts of this matter, I rely upon Cheryl Harris, Finding Sojourner's Truth:Race, Gender, and the Institution of Property, 18 CARDOZO L. REV. 309 (1996); NELL IR-VIN PAINTER, SOJOURNER TRUTH, A LIFE, A SYMBOL (1996); SOJOURNER TRUTH, NARRA-TIVE OF SOJOURNER TRUTH (Margaret Washington ed., 1993) [hereinafter NARRATIVE];CARLETON MABEE, SOJOURNER TRUTH: SLAVE, PROPHET, LEGEND 16-21 (1993). Sourcesconfirming Truth's autobiographical account are discussed by Mabee, id. at 19-20.

2 See Harris, supra note 1, at 327.3 Truth's efforts to secure Peter's return continued over a period of approximately two

years, during which she first "travelled the five miles or so back and forth between herhome ... and Kingston, often barefoot, walking or trotting with a gait that was distinctlyher own." MABEE, supra note 1, at 18. She subsequently moved to Kingston so that shecould pursue the child's claim more effectively. Id.

Mabee discusses, in rather judgmental terms, Truth's leaving Peter and her other chil-dren to reside with their father under the control of the master who sent Peter to Alabama,id. at 13-15, and Truth's religious, social and political work that later occasioned. absencesfrom her husband and children. Id. at 23-24. The concluding section of this Comment willprovide a useful frame for the evaluation of these judgments.

4 Truth recalls in her Narrative that she had mistaken an important-looking gentlemanfor the "grand jury" to which she had been told to take her appeal and that she had beenridiculed for failing to know the rituals by which oaths are taken in courts of law. NARRA-TIVE, supra note 1, at 33-34.

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In part I of this Comment, I will draw a link between So-joumer Truth's efforts to recapture her child from Southern slaveryand the struggles of hundreds of thousands of African-Americanparents to recover their daughters and sons from slaveholders whocontinued, despite Emancipation,5 to hold black children as theirproperty or as their wards. I hope to place Truth's battle for paren-tal rights and family integrity as part of a broader-and continu-ing-African-American struggle for civil status and self-determination.

I will turn in Part II to Professor Harris's assertion that thetheory, structure and ideology of slavery shaped our understand-ings and our lived reality of race and gender in ways that produceand reproduce constraints, limitations and subordination.6 I acceptthat characterization and proceed to explore the ideologies of slav-ery that shaped post-Emancipation understandings of the African-American family. Nonetheless, in part III I hope to show-withoutfalling into self-contradiction-that the lived realities of formerslaves like Sojourner Truth were models, not only of subordinationand constraint, but also of emancipation and liberty. The heart ofmy Comment is that those who defied slavery and its sequelae byvoicing parental claims enriched American democratic theory.They did so by revealing, first, the significance of family abrogationas an aspect of the slave's civil death, and then, the importance tocivil society of a democratic citizen's liberty in matters of family.

In a brief concluding part, I will draw a connection betweenthe ideologies of slavery and the ideologies that inform currentchild welfare debates. This connection suggests that the legacies ofslavery and of antislavery struggle usefully inform contemporaryefforts to reconcile the sometimes conflicting obligations of statesand of families to see to the development and well-being ofchildren.

I. "I'LL HAVE MY CHILD AGAIN!"

Abrogation of the parental bond was a hallmark of the civildeath that United States slavery imposed.7 The slave was a phan-

5 I use the term Emancipation loosely, to apply to the self-emancipating initiatives ofpeople who deserted Southern slave service during the Civil War, the various military or-ders decreeing freedom or "contraband" status, the acts of Congress freeing military per-sonnel and their families, the Emancipation Proclamation, and the Thirteenth andFourteenth Amendments.

6 See generally Harris, supra note 1.7 The concept of civil death is drawn from the work of Orlando Patterson. See OR-

LANDO PATTERSON, SLAVERY AND SOCIAL DEATH 1-15 (1982).

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tom in civil society-unable, under the master's law, to contract inlabor or in love, to direct the socialization of children, or to findmoral expression through unconstrained religious or social initia-tive. 8 Sojourner Truth was a slave when she began efforts to re-cover her child.' She therefore had no enforceable claim ofcustody: if the sale of her son was otherwise legal, it was not ren-dered illegal because it deprived Truth of custody and the child ofhis mother. Indeed, even though Truth had become free by thetime the matter was resolved in the courts, the decision to orderthe child returned to New York appears to have been grounded inNew York's right to emancipate its slaves (and, in the case of pro-spective manumission, to hold them within her borders until theday designated for their liberation) rather than in Truth's parentalright of custody and guardianship. 10

More than thirty years after Truth won freedom for her child,Union troops marched into the South, and hundreds of thousandsof slaves deserted plantations and farms to join the war and seizetheir freedom." As one Kentucky planter described the situation,"[n]o [slaveholding] family ... [knew] when they. . . [rose] in themorning whether they [would] have a servant to prepare breakfastor not."'1 2 This general strike by black workers, the contribution oftheir labor to the Union cause, and their heroism as Union soldierswere crucial to the war effort. But from the perspective of the en-slaved, withdrawal from the Southern slave system representedmore than a contribution to the Union cause. It was an assertionof civil status, and, as such, it centered around an assertion of rightsof family. From the first rumors of war, throughout the conflict,

8 For a description of the legal status of slave families, see Peggy C. Davis, NeglectedStories and the Lawfulness of Roe v. Wade, 28 HARV. C.R.-C.L. L. REV. 299, 314-15, 335(1993) [hereinafter Neglected Stories]. For a full account of the slave system's denial of theright to make moral and social meaning, see Peggy C. Davis, Contested Images of FamilyValues: The Role of the State, 107 HARV. L. REV. 1348 (1994) [hereinafter Family Values].

9 For a chronology of relevant events, see MABEE, supra note 1, at xiii-xvi.10 See MABEE, supra note 1, at 14 n.48 (citing 4 LAWS OF THE STATE OF NEW YORK ch.

137 (1818)). There is no surviving official account of the decision.11 For a full description of the "general strike," by which slaves transferred their labor

"from the Confederate planter to the Northern invader," see W.E.B. Du Bois, BLACKRECONSTRUCTION IN AMERICA 55-127 (1962). Du Bois estimates that the strike involvedhalf a million people. Id. at 67. See also JAMES M. MCPHERSON, BATTLE CRY OF FREE-

DOM 355-57, 497-99, 709-11 (1988); BENJAMIN QUARLES, THE NEGRO IN THE CIVIL WAR

58-77, 95, 312, 314-20 (1953); THE DESTRUCTION OF SLAVERY 3, 8 (Ira Berlin et al. eds.,1985). For evidence of strike activity among slaves before the Civil War, see HERBERT

APTHEKER, AMERICAN NEGRO SLAVE REVOLTS 20 (1963).12 HERBERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM, 1750-1925,

at 370 (1976).

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and well into the postwar years, Americans who had been slavesseized both free citizenship and family.13

Emancipated parents who followed Truth in the quest for fam-ily integrity grappled, as she had, with unfamiliar and inhospitablesystems in actions against the slaveholding class to win, in fact andin law, the custody and guardianship of their children. But in adeeper sense than was possible for Truth, these parents acted asfree citizens, claiming-and defining in the process-rights to formand maintain families and to nurture and supervise their children."Americans claiming emancipation during and after the Civil Waryears shared "a passionate commitment to the stability of familylife as a badge of freedom.' 5 Enslaved people "could be sold, dis-ciplined, and moved without recourse and they had no right tomarry, educate their children, or provide for their parents.' 16

These people expected the destruction of their owners' sovereigntyto open a world of new possibilities:

If slavery denied them the right to control their persons andprogeny, freedom would confer that right.... As free people,former slaves expected to be able to organize their lives in ac-cordance with their own sense of propriety, establish their fami-lies as independent units, and control productive property as thefoundation of their new status.'7

The establishment of free families began with countless reen-actments of Sojourner Truth's courageous saga; emancipatedAmericans struggling to build self-directed lives located familymembers held or traded by former masters and negotiated orseized their custody. 8 The stories of these former slaves, capturedin some detail in army and Freedmen's Bureau records of the mid-and late 1860s, give life to Truth's legacy and meaning to the consti-tutional concept of family autonomy.

13 Du Bois, supra note 11, at 59, 62-65; GUTMAN, supra note 12, at 363-431. Of courseAfrican-Americans struggled long before the onset of the Civil War to preserve their fami-lies and to escape to freedom. For an account of struggles for family and freedom, seeNeglected Stories, supra note 8, at 313-16, 334-57. For a discussion of antislavery resistancein pursuit of family and personal autonomy, see Family Values, supra note 8, at 1364-69.

14 For an analysis of the family rights that were conferred by the ReconstructionAmendments, see Neglected Stories, supra note 8, at 376-86.

15 ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 88 (1988).16 THE WARTIME GENESIS OF FREE LABOR: THE LOWER SOUTH 7 (Ira Berlin et a).

eds., 1990).17 Id.18 See generally THE BLACK MILITARY EXPERIENCE 656-709 (Ira Berlin et al. eds.,

1982) (summarizing the extent to which "family stood at the center of antebellum blacklife, slave and free," and the ways in which black soldiers fought as and for family).

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At Camp Nelson, in the summer of 1864, "[h]ardly a daypassed... 'without bringing ... wives, children, and relatives intothe camp, either on visits or in pursuit of new homes." ' 19 Thosesoldiers who had left wives and children in slavery returned toplantations to recover their kin; even though doing so entailed risksof violent retribution. Soldiers returning for their families were"knocked down, whipped, and horribly bruised, and thenthreatened with shooting."2 These actions inspired General JohnM. Palmer to remark to black soldiers fighting in Kentucky in 1865:"If any one has your children, go and get them. If they will notgive them to you,steal them out at night. I do not think you will becommitting any crime, nor do I believe the Almighty Ruler of theUniverse will think you have committed any."' 21 Striking slavesseemed to agree absolutely.

Despite the-substantial risk of violent retaliation, the "crime"of claiming one's children was replicated across the South byemancipated Americans who shared John Palmer's sense of naturalright. A Union officer reported:

[A] negro soldier demanded his children at my hands. [H]e said,Lieut., I want to send them to school; my wife is not allowed tosee them.... I said they had a good home; said he: I am in yourservice; I wear military clothes; I have been in three battles; Iwas in the assault at Port Hudson; I want those children; they aremy flesh and blood.22

The children were recovered. 3 A Missouri soldier wrote from anarmy hospital to his wife and her owner that if his wife were notpermitted free choice as to whether or not to leave -the owner andjoin her husband, the owner would be visited by ten or twentysoldiers.24 "You know," he wrote,

that a Soldiers wife is free read this letter to her and let herreturn her own answer I will find out whether this has beenread to her in afull understanding with her or not, and if Ishould find out that she has never heard her deliverance I willundoubtedly punish you.25

19 Letter from Capt. Wm. B. Fowle, Jr. to Major Southard Hoffman (Jan. 14, 1863), inTHE DESTRUCTION OF SLAVERY, supra note 11, at 87.

20 Id.21 Id.22 GUTMAN, supra note 12, at 371.23 Id. at 383.24 General John M. Palmer, Remarks at Kentucky Independence Day (July 4, 1865),

quoted in GUTMAN, supra note 12, at 381. An estimated 20,000 black people were in at-tendance. Id. at 380.

25 Id. at 410.

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Women seeking emancipation and control of their childrenhad less leverage, but equal determination. Writing two weeks af-ter the Emancipation Proclamation of 1863, a Union Captain re-ported to his command of a woman who had been "tied ... to atree her arms over her head & then whipped ... severely. '26 TheCaptain reported that when he saw the woman, "the flesh on herarms where the ropes went was badly lacerated & her arms cov-ered with blood." 7 The woman's "crime was that she demandedher daughter whom ... [her assailant] retained in slavery."128 AnAnnapolis officer reported that every day he was "visited by somepoor woman who has walked perhaps ten or twenty miles to... tryto procure the release of her children taken forcibly away from herand held to all intents and purposes in slavery. '29 When ClarissaBurdett's husband enlisted in the Union army, her owner "beat...[her] over the head with an axe handle"; 30 when Burdett's niecefled to a Union camp and Burdett was unable to cause her to re-turn, the owner "tied ... [Burdett's] hands threw the rope over ajoist stripped . . . [her] entirely naked and gave . . . [her] aboutthree hundred lashes."'31 Threatened with more abuse, Burdett wasforced to flee, but she took immediate steps to rescue the childrenshe left behind. In an affidavit seeking the assistance of the Unionarmy, she said: "I have four children there at present and I want toget them but I cannot go there for them knowing that master whowould whip me would not let any of my children go nor would hesuffer me to get away."'32 Louisa Foster, the wife of a Union armysoldier, traveled from Baltimore to Towsontown to recover herthree children, whereupon their "owner 'threatened to chain...[her] down to the floor and whip... [her] if... [she] asked for...[her] children any more.' ' 33 Some parents were able, despite therisk of violence, to reclaim their children by self-help. Jane Kem-per reported, "[William Townsend] locked up my children so that Icould not find them. I afterwards got my children by stealth andbrought them to Baltimore .... My master pursued me to the

26 Id. at 404.27 Testimony of Col. Geo. H. Hanks before the American Freedmen's Inquiry Commis-

sion (Feb. 6, 1864), in THE WARTIME GENESIS, supra note 16, at 517, 519.28 Id.29 Letter from Sam Bowmen to his wife (May 10, 1864), in THE DESTRUCTION OF

SLAVERY, supra note 11, at 483-85.30 Id. at 484.31 GUTMAN, supra note 12, at 410.32 Affidavit of Clarissa Burdett (Mar. 27, 1865), in THE DESTRUCTION OF SLAVERY,

supra note 11, at 615-16.33 Id.

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Boat to get possession of my children but I hid them on theboat."34 Amey Carrington, a Tennessee freedwoman, was drivenfrom home by her "master" without provocation and without payfor work that she had done since Emancipation.'- She reportedthat her children were kept by the "master" who "hired them out,and ... received compensation for their services. ' 36 She describedher ultimately successful efforts to recover the children:

I had made several efforts since I was driven from home to getpossession of my children but failed in every instance until the23rd day of July 1865, when I succeeded in finding them andwith the assistance of ... [Union officers] brought them toMemphis Tenn. My children were in a destitute condition withhardly any clothing on them and had ben treated in a brutalmanner.

37

The violence that planters used to maintain control over thelives of black workers was supplemented by appeals to law. Ap-prenticeship laws were revived or enacted to hold young laborersagainst the protests of their families. Herbert Gutman describesthe response of black families in Maryland to the use of the ap-prenticeship system to maintain a slaver's hold upon black youth.3 s

The laws of Maryland gave local judges power to place black chil-dren in the care and service of white people if placement wasdeemed "better for the habits and comfort of the child. ' 39 Emanci-pation in Maryland freed approximately ninety thousand slaves,ten thousand of whom are estimated to have been reenslavedunder apprenticeship laws as children were "carried... in ox carts,waggons, and carriages" to local courts to be bound, usually to for-mer masters. ° Parents and extended kin responded as SojournerTruth had responded to Peter's abduction. When the children ofan ex-slave and former Union corporal named Berryman werebound to their former owner, Berryman simply took the children. 1

His wife expressed the family's feeling in the matter: "I told...[the former owner] I did not want... [the children] bound out to

34 Id.35 Affidavit of Amey Carrington (Aug. 10, 1865), in THE DESTRUCTION OF SLAVERY,

supra note 11, at 307-08.36 Id.37 Id.38 GUTMAN, supra note 12, at 402.39 Id.40 Id. at 403. "Within a month of emancipation, local [Maryland] courts had appren-

ticed more than 2,500 black children and young adults, generally to their former owners."THE WARTIME GENESIS, supra note 16, at 75.

41 GUTMAN, supra note 12, at 408.

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any one as I was able to support them .... "42 Susan Thomas, anemancipated grandmother, was able to take two of her grandchil-dren from a former owner, although they were later returned to hiscustody.43

Other parents turned to the courts, to state officials and tofederal agents. Leah Coston petitioned a local court to free herchildren from an unlawful apprenticeship; she prevailed, but onlyafter a delay of fourteen months.4 Charles Henry Minoky broughta complaint to free his stepdaughter. When the complaint was de-nied under the authority of Dred Scott, Minoky appealed success-fully to a United States Supreme Court Justice sitting in circuit. 5

The complaints of black parents about apprenticeship laws filled arecord submitted to the Maryland General Assembly.46 , Threehundred parents petitioned Andrew Johnson, complaining that inviolation of the Civil Rights Act of 1866, "[o]ur homes . . . areinvaded and our little ones seized at the family fireside, and forci-bly bound to masters who are by law expressly released from anyobligation to educate them in secular or religious knowledge. 47

The stance of African-American families with respect to thede facto reenslavement of their children was perhaps best ex-pressed in the complaint of Charlotte Hall, wife of a Union soldier,to Freedmen's Bureau authorities: "I think it hard that my compan-ion should be away from me in his country service and I am at thesame time deprived of my only child, contrary to the free laws andinstitutions for which his father is fighting. ' 48 Hall's statement re-flects an ideology of freedom according to which adult citizens arepresumptively able and legally entitled to control the custody andsocialization of their children.

II. THE IDEOLOGY OF REENSLAVEMENT

The planter class countered the resistance of black Americansto reenslavement by revisiting the rationalizations by which it hadjustified slavery and retooling them to meet the circumstances ofemancipation. As we have seen, "[m]any erstwhile slaveholders re-sorted to naked force to sustain their accustomed power over black

42 Id.43 Id. at 407.44 Id. at 411.45 Id. at 411-12; see also Neglected Stories, supra note 8, at 383.46 GUTMAN, supra note 12, at 405.47 Id. at 411. Maryland apprenticeship laws required that white apprentices be "edu-

cated," but not black apprentices. Id. at 402.48 Id. at 410.

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people. Others, more farsighted, fashioned new modes of exactinglabor."4 9 Chief among the new modes fashioned in the immediatepostwar period was, as we have also seen, the apprenticeshipsystem.

Apprenticeship arrangements had served some slaveholderswell under slavery, allowing them to be paid for hiring out slaves tocraftspeople in need of capable hands.50 "Some mechanics hadbeen known to pay as much as six hundred dollars annually, in ad-dition to providing food and clothing" to slaves hired out as ap-prentices. 51 But black workers who were skilled as a result ofapprenticeship service proved to be an irritant to less skilled whiteoverseers-and a dangerous image to hold before the slave locked ina life of agricultural labor. Some who had learned trades as slaveapprentices managed to buy their liberty. 2 Others became suffi-ciently successful that "many of the states... passed laws prohibit-ing masters from letting their slaves out because it made the otherslaves dissatisfied" with their lot.53 After the Vesey plot of 1822,inspired by mechanical workers, slaveholders came increasingly toinsist, and to require under the laws of Southern states, that Afri-can-Americans be confined to agricultural labor. 4 Enthusiasm forapprenticeship schemes in the wake of Emancipation thereforecaused the revival of an institution that was dying, at least as itpertained to African-American workers in the South.

As with most legal rules and arguments, the post-Emancipa-tion apprenticeship system represented, and was defended in termsof, an ideology-in this case, an ideology of caste hierarchy.55 Thisideology masked the liberating potential of apprenticeship train-ing,56 as it justified apprenticeship in terms of categorical incompe-

49 THE WARTIME GENESIS, supra note 16, at 75.50 For an account of this use of the apprenticeship system, see HENRY BIBB, NARRA-

TIVE OF THE LIFE AND ADVENTURES OF HENRY BIBB, AN AMERICAN SLAVE 16 (NewYork, McDonald & Lee 1849).

51 STANLEY FELDSTEIN, ONCE A SLAVE: THE SLAVES' VIEW OF SLAVERY 253 (1971)52 Id. at 106.53 Id. at 253.54 APTHEKER, supra note 11, at 115. Some jurisdictions had taken this precaution ear-

lier. When Parliament authorized the holding of slaves in Georgia, it prohibited their em-ployment other than in agriculture and their apprenticeship to artisans other thancarpenters. Id. at 73.

55 An ideology, as I intend the term, corresponds to what Jean-Franqois Lyotard de-scribes as a narrative that legitimates knowledge in a discourse such as law. JEAN-FRAN-

ols LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE 31-35 (GeoffBennington & Brian Massumi trans., 1984) (1979).

56 Indeed, apprenticeship laws were, at times, tailored to restrict the amount of educa-

tion the apprentice was required to receive. See GUTMAN, supra note 12, at 402 (reporting

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tence. It figured importantly in the story of Sojourner Truth'srecovery of Peter.

The most poignant moment in the story of Truth's assertion ofparental rights is the child's denial of his mother. When Truth wentto identify and claim her child, he:

[C]ried aloud, and regarded her as some terrible being, who wasabout to take him away from a kind and loving friend. He knelt,even, and begged them, with tears, not to take him away fromhis dear master, who had brought him from the dreadful South,and been so kind to him.57

The child-under duress, it seems58 -was led to evoke one of themost insidious defenses of the slave system: the argument that slav-ery provided protection and safe governance for a people unfit tolive as free agents or to provide suitably for their children. Seeingthat the boy was badly scarred, the judge hearing Truth's claim re-jected the indirect assertion of her unfitness, declared Peter free asthe result of an unlawful removal from the state, and awarded cus-tody to his mother.5 9 Truth won the battle to save her child, but thegeneral theme of African-American parental unfitness was neitherdisproved nor silenced. In the post-Emancipation context, thistheme was revived as part of the myth of supremacy and paternal-ism that rationalized the apprenticeship system as it had rational-ized slavery.

The institution of slavery could not have sustained itself fortwo hundred years in the United States had it been defended sim-ply as a matter of economic efficiency. Slavery was defended interms that purported to justify it morally. The African "race" wascharacterized as bestial, unintelligent and in need of the protectionand supervision of the "white race."'60 Justifications for post-Emancipation apprenticeship laws and orders were variations uponthis white supremacist theme.

Frederick Eustis, a Georgia plantation superintendent, testify-ing before the American Freedmen's Inquiry in 1863, was asked

that in Maryland, white apprentices were to be taught a trade and educated, while blackapprentices were only to be taught a trade).

57 NARRATIVE, supra note 1, at 38. See also MABEE, supra note 1, at 19.58 Truth reported that when she calmed Peter and was able to examine him, she "found,

to her utter astonishment, that from the crown of his head to the sole of his foot, thecallosities and indurations on his entire body were most frightful to behold," and the boyreported being "whipped, kicked, and beat." NARRATIVE, supra note 1, at 39. Nell IrvinPainter argues, however, that Peter's fear of his mother may have been genuine and aresult of separation trauma he suffered in her absence. PAINTER, supra note 1, at 34.

59 Id.60 See Family Values, supra note 8, at 1361-62.

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whether "in making the transition from slavery to free labor" itwould be "necessary for the government to establish some systemof guardianship." He replied, "Yes, sir; that is my idea. I do notbelieve in absolute independence; the apprenticeship system iswhat is needed; they are not prepared for freedom yet."'6 1 Whenasked whether it "[w]ould do at all to leave these people perfectlyfree to do as they liked in free competition with white men-takingwhite men as they are-without any guardianship adapted to theircondition," he replied, "Not at all; white men of very low gradewould outstrip them. "62

Although the enslaved race was presumed unfit for freedomand in need of supervision, it was presumed capable, with supervi-sion, of working in the fields, kitchens and nurseries of the planterclass. But the presumption of a need for supervision carried as acorollary a presumption that the enslaved were incompetent torear and socialize the children born to them. Edward Pierce, re-porting upon the War Department's supervision of Port Royal,South Carolina, took a rather bright view of the intelligence ofyoung slaves, but expressed concern about their parents' ability torear them properly. He said:

While . . . [the black school children's] quickness is apparent,one is struck with their want of discipline. The children havebeen regarded as belonging to the plantation rather than to afamily, and the parents who in their condition can never havebut a feeble hold on their offspring, have not been instructed totraining their children into thoughtful and orderly habits.63

This theory of black parental incompetence grew out of argumentsthat slaveholders had used to dismiss the complaints of slaves andother abolitionists, that slavery destroyed family bonds. The slave-holding household had been held up as "a paternalistic network ofrelationships which approximated a well-ordered [patriarchal] fam-ily," with a husband-father-owner at its head to govern both hisown family and the families of incompetent African adults.6 Simi-larly, apprenticeship was held up as a solution for African-Ameri-cans left adrift in freedom with responsibilities they wereincompetent to meet.

61 Testimony of Mr. Frederick A. Eustis before the American Freedmen's Inquiry

Commission (June, 1863), in THE WARTnME GENESIS, supra note 16, at 246.62 Id. at 248.63 Letter from Edward L. Pierce to Hon. S. P. Chase (June 2, 1862), in id. at 205.64 Ronald G. Waiters, The Family and Ante-bellum Reform: An Interpretation, 3

SOCIETAs 221, 224-25 (1973).

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The personal and social effects of the theory of black parentalincompetence are powerfully told in the story of the three Chris-tian children, who resided briefly in a Union camp in Tennessee.65

They were the children of John Christian, a Union soldier, andPauline Christian. A slaveholder by the name of Wheaton hadowned the family and, with the assistance of sympathetic Unionofficers (in the form of soldiers assigned to guard his property and"keep his young slaves from running off"), 6 6 retained custody ofthe children. Like many black parents, John Christian used self-help to recover his children. One day, when the soldiers were ab-sent from Wheaton's yard, he "took two black men with him, andwatching their opportunity, they caught the children and ran offwith them. '67 Subsequently, the officer whose protection Wheatonenjoyed sent soldiers to the camp at which the Christian family hadtaken residence and forced the children's return. The scene wasdescribed by a witness in this way:

What a fine subject for a painter was this! Dr. Wheaten, 68 aslaveholder, and formerly, from the testimony of those wholived with him, a traitor, and Brig.-Gen. Buckland's aid-de-campride through our camp in a splendid carriage, and attended bythree orderlies, in search of three children, aged respectivelyabout ten, eight, and six years, who had been brought home totheir father's house.... [T]he aid-de-camp... bore off the children from weepingand agonizing parents as triumphantly as was ever done in theseStates when the whole nation groaned and reeled under the ruleof such men as this ... slaveholder.69

Officers in charge of the camp apparently complained about thetreatment the Christian family had received, and an investigationensued. The defense of Wheaton's protector was that he had actedin the best interests of the children:

Those children were forcibly taken from the residence of Dr.Wheaton in his absence by armed soldiers and against thewishes of the children, contrary to the written prohibition of

65 The facts of this matter are taken from the following documents: excerpts from clip-ping from UNITED PRESBYTERIAN, March 1864, enclosed in Letter from Robert George toHon. E.M. Stanton (Mar. 20, 1864), in THE DESTRUCrION OF SLAVERY, supra note 11, at314-16 [hereinafter Clipping]; Letter from Brig. General R.P. Buckland to M.D. Lauden(Feb. 23, 1864), in id. at 316 [hereinafter Buckland letter]; Letter from Brig. Gen. AugustusL. Chetlain to Lieut. Col. T.H. Harris (Apr. 12, 1864), in id. at 316-17 [hereinafter Chetlainletter]. Quotations are separately cited.

66 Clipping, supra note 65, at 314.67 Id.68 In other documents the slaveholder's name-is spelled "Wheaton."69 Clipping, supra note 65, at 314-15.

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Maj. Gen. Hurlbut. I ordered them returned because they wereforcibly taken away in violation of Military discipline and be-cause I was well satisfied from my own knowledge and from in-formation derived from others that it would be for the good ofthe children. They are well cared for and kindly treated in thefamily of Dr. Wheaton. They were not returned as slaves, nordo I believe they will ever be slaves.70

A subsequent report of the matter indicated that the father was inactive duty; the mother was "on a plantation.., working for wageshaving been sent there by order of [a Freedmen's Bureau officer]"and the children remained with Wheaton. It added that the motherhad been "charged with abusing her children at times when withDr. Wheaton but while in Camp she is said to have conducted her-self with propriety. 71

Paternalistic sentiments toward the children of former slaves,common at the time among American whites and used (howeverdisingenuously) to justify seizures of the kind the Christian chil-dren experienced, were elaborated into a defense of former slave-holders' urgent efforts to have African-American children andyoung adults bound to their supervision and control. When testify-ing in Louisiana before the Smith-Brady Commission, Tobias Gib-son complained that Emancipation posed a difficulty:

Here every man wishes to keep his negroes at home and thenyou incorporate on the same estate those in a quasi state of slav-ery-and you have their parents and the whole of the rest of theplantation to interfere with your exercise of authority over them.... If I went to correct these apprentices, under a law, they say'I am not going to see my son or daughter punished and I willfight for it first,' and nine out of ten are against you, with a phys-ical ability to resist you and they wont allow you to punish them.If you threaten to send to the Provost Marshal or to send themoff the place,-or have reason to complain of one very decid-edly, they are all against you at once.72

Gibson then said-ambiguously, but ominously-"if terms aremade with the people of the Southern states so that they can returnunder the Constitution to manage their affairs in their own way,subject only to the Constitution of the United States, my impres-sion is that the people will return voluntarily to the Union. '7 3 The

70 Buckland letter, supra note 65, at 316.71 Chetlain letter, supra note 65, at 317.72 Testimony of Tobias Gibson before the Smith-Brady Commission (Apr. 25, 1865), in

THE WARTIME GENESIS, supra note 16, at 611.73 Id.

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former slaveholders' preferred way of managing affairs involvedthe construction of an elaborate rationalization for removing theimpediment of parental interference with planters' supervision andcontrol of young African-Americans.

Apprenticeship statutes typically required a finding that theparent of the child was vagrant, destitute, of poor character, or in-competent to instill habits of industry.74 Apprenticed childrenwere "taken from their parents under the pretence that [the par-ents were] incapable of supporting them, '75 even though the ra-tionale was belied by the fact that "younger children [were often]left to be maintained by the parents. ' 76 Claims of black parentalincompetence were therefore featured-and the theory of blackparental incompetence reinforced-in both formal and informalactions to bind children to former slaveholders.

Benjamin Osborn held three black children against the claimof their grandmother, alleging the grandmother "incapable" of car-ing for them.77 A white Maryland woman claimed the three chil-dren of a young freedwoman, alleging that the woman had married"a 'worthless' free black. ' 78 Another Maryland man described hisindenture of twelve black children as "an act of humanity,"although he later admitted more selfish motives: "I am left with nobody to black my boots or catch a horse .... I am now an old man,and in my younger days labored to raise these blacks. 79

Some whites seeking to apprentice black children made theallegation of parental incompetence implicitly, claiming that thechildren were, as Sojourner Truth's son had appeared to be, afraidof their parents and eager to remain with their "masters." A Car-roll County, Maryland white man, for example, "claimed that athirteen- or fourteen-year-old boy wanted to remain with him, butthat the boy's parents opposed such an arrangement."80 When an-other planter made similar allegations with respect to the daughterof a Maryland freedman, the aggrieved father saw through theruse:

This girl has been living with Wilson in her slave days, and theyhave got her so that she don't want to leave them, but I want totake her from them as they are not giving her any wages, and

74 Neglected Stories, supra note 8, at 383 n.394 and accompanying text.75 GUTMAN, supra note 12, at 403.76 Id.77 Id. at 406.78 Id.79 Id.80 Id.

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holding her in slavery. I think I ought to take care of her as I amher father. I went to Mr. Wilson's for her and he drove me fromhis house, and said I should not have her without authority.8'

A mother spoke similarly:Mrs. Mills and her Son, holds my child in slavery. I went thereand they ordered me out of the house to-day, and they lockedthe door and took the key out of the door, and they tell her notto live with me. I want her to come home and go to school. I feelmyself perfectly able to support her.s2

A Union officer seeking to recover the children of one of hissoldiers was more blunt:

I sent a soldier for the children, when the mistress refused todeliver them; she came with them to the office and acknowl-edged the facts; she affirmed her devotion to them, and deniedthat the mother cared for them; I told her even an alligatresswould protect and nurse her young; she had bribed them to lieabout their parents, but I delivered them up to the father.83

III. THE IDEOLOGY OF FAMILY FREEDOM

When Sojourner Truth recalled her determination to reclaimPeter from slavery, she said, "why, I felt so tall within-I felt as ifthe power of a nation was with me."' 84 It is true in three senses thatTruth's actions simultaneously manifested pride of self and thepower of a nation: Truth's assertion of family-like the similar ac-tions of countless emancipated people who followed her-was anact of self-definition and meaning-making within an intimate com-munity, within a closely knit cultural community, and within a mul-ticultural political community. Moreover, it was an action thatrequired what emancipated people demanded of the Union: apolitical and social context of human freedom.

A. Meaning-Making for One's Self and One's Progeny

We humans are unique for our capacity to be conscious, self-reflective and self-critical about what we perceive as life choices.We judge ourselves on the basis of the choices we have made. Wetherefore claim-as a human or natural right, if you will-a rangeof independence sufficient to allow us to define ourselves as moral

81 Id. at 407.82 Id. at 409 (emphasis added).83 Deposition of Col. Geo. H. Hanks before the American Freedmen's Inquiry Com-

mission (Feb. 6, 1864), in THE WARTIME GENESIS, supra note 16, at 517, 519.84 NARRATIVE, supra note 1, at 31.

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beings. For most of us, relationships with the families to which weare born, intimate companions whom we choose, children whomwe nurture, or some combination of these, constitute a primaryarena for morally significant and life-defining choices.

By denying moral independence and family integrity, slaverytaught us their worth. Slaves protested in 1773 that without rightsof family, they were reduced to the status of beasts. 85 How, a 1774petition declared, might a person live responsibly with respect to aspouse or a child when families were unrecognized and subject touncontrollable separations?8 6 Antislavery struggle often demon-strated simultaneously the human value of family bonds and thebeauty of moral choice within the family arena. In a letter petition-ing for the freedom of a daughter indentured beyond Emancipa-tion, Lucy Lee wrote, "God help us, our condition is bettered butlittle; free ourselves, but deprived of our children, almost the onlything that would make us free and happy. It was on their accountwe desired to be free."87 A family of five was freed by the volun-tary enlistment of one of the children. The young man was the firstUnion soldier killed at Pascagoula. When he enlisted, he said tohis family, "I know I shall fall, but you will be free. '' 88 The wordsand actions of these former slaves reflect processes of commitmentand collective self-realization that play out-albeit less dramati-cally-in all of our lives through countless daily expressions offamily.

B. Meaning-Making and Sub-Cultural Identity

The lines between family and sub-cultural identity are indis-tinct in African-American communities as a result of the preva-lence of extended care networks: circles of commitment thatextend beyond immediate kin to people related by ties of friend-ship, community, culture and shared oppression. In this respect,African-American cultural influences have provided a counter-weight to the less communitarian stance of the idealized (if not typ-ical) and highly independent American post-industrial nuclear

85 Petition to the Governor, the King's Council and the House of Representatives ofMassachusetts from "many slaves" (Jan. 6, 1773), in HERBERT APTHEKER, A DOCUMEN-TARY HISTORY OF THE NEGRO PEOPLE IN THE UNITED STATES 6-7 (1951).

86 Petition to the Governor, the King's Council, and the House of Representatives ofMassachusetts (May 25, 1774), in APTHEKER, supra note 85, at 9.

87 GUTMAN, supra note 12, at 409.88 Testimony of Col. Geo. H. Hanks before the American Freedmen's Inquiry Commis-

sion (Feb. 6, 1864), in THE WARTIME GENESIS, supra note 16, at 517, 519.

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family. 9 Since the days of slavery, extended care networks havelinked African-American people in kinship and friendship groupscommitted to mutual sustenance, values of nurturance, and socialresponsibility. Some trace traditions of extended care to West Af-rican culture, while others see them as adaptations to the dangersand dislocations of bondage. 90 Whatever their origins, these net-works of mutual obligation have sustained and enriched African-American culture since the seventeenth century.91

Extended care networks were crucial to African-Americansurvival during slavery. Slaves sold or stolen from their biologicalfamilies were nurtured and supported by slaves with whom theyhad no biological ties. Slave children, whose parents were forcedto remain all day in plantation fields, were cared for by fictiveaunts and uncles able to remain nearby. This system of mutualsupport and nurturance was so prevalent that slave children weretaught to call all adult slaves "Aunt" or "Uncle," thereby solidi-fying a sense of inter-familial trust and obligation.

Post-Emancipation assertions of family proceeded togetherwith assertions of community. In one North Carolina community itwas reported in 1865 that "[a]ll indigent or helpless [ex-slaveswere] being supported by relatives, parents, or friends. ' 92 Georgiafreedmen "work[ed] .. .hard all day and into the night and...[gave] one-third of all they earn[ed] to support the poor of theirown race.' 93 The virtues of African-American extended care netLworks in the post-Emancipation period are apparent even in thedescriptions of unsympathetic chroniclers:

The thoughtless charity of [a] penniless Negress in receiving an-other poverty-stricken creature under her roof was characteris-tic of the freedmen. However selfish, and even dishonest, theymight be, they were extravagant in giving. The man who at theend of the autumn had a hundred or two bushels of corn onhand would suffer a horde of lazy relatives and friends to settle

89 For a description of the more typical stance and its emergence, see John Demos,Images of the American Family, Then and Now, in CHANGING IMAGES OF THE FAMILY 43,45-49 (Virginia Thfte & Barbara Myerhoff eds., 1979).

90 See GUTMAN, supra note 12, at 211-12, 222.91 The earliest document contained in Herbert Aptheker's Documentary History of the

Negro People in the United States is a petition, dated 1661, for the freedom of a child whom"petitioner out of Christian affection took to herself, and with the fruits of her hands' bittertoil she reared him as her own child, and up to the present supported him, taking all moth-erly solicitude and care for him, without aid of anyone in the world." APTHEKER, supranote 85, at 1-2.

92 GUTMAN, supra note 12, at 225.93 Id. at 224 (quoting Georgia Freedmen's Bureau chief, Davis Tillison).

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upon him and devour him before the end of the winter, leavinghim in the spring at the mercy of such planters as chose to drivea hard bargain.94

More recently, African-American communities drew strengthfrom extended care networks in the struggle for civil rights. Thespirit of family that prevailed in the 1960s was recently recalled bya man whose values were formed by the struggle:

I grew up in a great time and in a great place. That was in Bir-mingham, Alabama, and we knew what families were, and weknew what communities were .... I'm thinking of a time duringthe Civil Rights movement when we would go out and picket,and we knew that some of the people would probably go to jailand some would be hurt, but when we came back to our commu-nities there was always food for everybody. There was alwayssomebody there to see if you were all right. It didn't have to beyour particular family, but the community and the neighbor-hood was the family.95

This self-expression through expressions of community is a crucialaspect of the freedom that Emancipation promised.

C. The Meaning of National Freedom

"[A]ntislavery meetings have been the very best schools inthe nation .... The nation has been taught here, as nowhereelse, law, morals and Christianity."96

As antislavery Americans protested and escaped bondage,they articulated an ideology of freedom that depended upon per-sonal and family autonomy. Slaves had demanded freedom tomake meaning by taking chosen, rather than dictated, paths; eman-cipated citizens demanded a role in the national collective thatcould be chosen, rather than prescribed. As Frederick Douglassput it to Union army recruits:

[O]ne thing I have a right to ask when I am required to march tothe battle field, and that is, that I shall have a country or thehope of a country under me, a government that recognizes mymanhood around me, and a flag of freedom waving over me!97

94 Id. at 225 (quoting JOHN DEFOREST, A UNION OFFICER IN THE RECONSTRUCTION

97-99 (1948)).95 Response of participant Mr. Walker, Black Family Task Force Focus Groups on Ex-

tended Care Networks (Jan. 13, 1995), in Peggy C. Davis, The Principle of Extended Care5 (July 8, 1995) (on file with the Cardozo Law Review).

96 Frederick Douglass, Speech (June 16, 1861), in 3 SPEECHES, DEBATES, INTERVIEWS

439 (John W. Blassingman ed., 1985).97 Frederick Douglass, Speech (Dec. 3, 1861), in id. at 468.

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And freedom entailed (in the patriarchal terms of the day) theright to be "a father, a husband, a brother, and a citizen ... [withall the] rights, powers, duties and responsibilities" that these sta-tuses imply.98

Democracy contemplates what Du Bois called "domination ofpolitical life by the intelligent decision of free and self-sustaining[people]." 99 As Philip Heymann and Douglas Barzelay have ex-plained, free and self-sustaining people require a certain context."The immensely important power of deciding about matters ofearly socialization has been allocated to the family, not to the gov-ernment" 100 for good reason: if government controlled family lifeand the development and inculcation of values within the home,"[t]he outcomes of the political system would be radically altered,for the government would.., be vested with the capacity to influ-ence powerfully, through socialization, the future outcomes ofdemocratic political processes."'1 1 Free people require "privaterealms" in which they can develop differently.10 2 This requirementis especially urgent in a multicultural nation that prizes its constitu-ent identities. The child must not be the creature of the state; s/hemust be "conceived in liberty" and nurtured in contexts shelteredfrom homogenizing control.

IV. FAMILY FREEDOM AND CHILD WELFARE

Government systems that supervise and support the nur-turance of children are concentrated in communities that are poorand in communities of color.'0 3 Members of these communitiesoften find the systems inappropriately intrusive. The history re-counted above provides an explanation. The ideology of reen-slavement, used to justify the abduction of Sojourner Truth's sonand the indenture of able-bodied children in the post-Emancipa-tion era, seems often to live in contemporary child welfare policies.

98 Frederick Douglass, Speech (June 16, 1861), in id. at 439.

99 Du Bois, supra note 11, at 29.100 Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade

and Its Critics, 53 B.U. L. REv. 765, 773 (1973).101 Id.102 In this vision of democracy, the state, and the principles that bind the people, are

seen as dynamic-open to influence by individuals and disparate groups as they engage inthe political process. It is a vision in which Lord Devlin's principle of preservation of amoral status quo would hold no sway. See PATRICK DEVLIN, THE ENFORCEMENT OF

MoRALs (1965).103 Catherine Albiston, The Social Meaning of the Norplant Condition: Constitutional

Considerations of Race, Class, and Gender, 9 BERKELEY WOMEN'S L.J. 9, 14-15 (1994).

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El-Hajj Malik EI-Shabazz described the breakup of his familyin the 1930s after what he interpreted as the racially motivatedmurder of his father and retaliatory firings of his mother:

When the state Welfare people began coming to our house... [t]hey acted and looked at [my mother] and at us, and

around in our house, in a way that had about it the feeling-atleast for me -that we were not people.

•.. My mother was, above everything else, a proud woman,and it took its toll on her that she was accepting charity. Andher feelings were communicated to us.

* . . She would talk back sharply to the state Welfare people,telling them that she was a grown woman, able to raise her chil-dren, that it wasn't necessary for. them to keep coming aroundso much, meddling in our lives. And they didn't like that.

But the monthly Welfare check was their pass. They actedas if they owned us, as if we were their private property. Asmuch as my mother would have liked to, she couldn't keep themout. She would get particularly incensed when they began insist-ing upon drawing us older children aside, one at a time ... andasking us questions, or telling us things-against our mother andagainst each other.

•.. We really couldn't understand. What I later understoodwas that my mother was making a desperate effort to preserveher pride-and ours.

[T]he state Welfare people kept after my mother. Bynow she didn't make it any secret that she hated them, anddidn't want them in her house. But they exerted their right tocome ....

I think they felt that getting children into foster homes wasa legitimate part of their function, and the result would be lesstroublesome, however they went about it.

And when my mother fought them, they went after her ....

I'm not sure just how or when the idea was first dropped bythe Welfare workers that our mother was losing her mind.

But I can distinctly remember hearing "crazy" applied toher by them when they learned that the Negro farmer who wasin the next house down the road from us had offered to give ussome butchered pork... and she had refused. It meant nothingto them even when she explained that ... it was against herreligion as a Seventh Day Adventist.

They were vicious as vultures. They had no feelings, under-standing, compassion, or respect for my mother. They told us,

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'She's crazy for refusing food.' Right then was when our home,our unity, began to disintegrate. We were having a hard time,and I wasn't helping. But we could have made it, we could havestayed together. As bad as I was, as much trouble and worry asI caused my mother, I loved her."° .Eventually, the mother was committed to a state mental hospi-

tal, and each of her eight children was made a ward of the state.Shabazz described the order placing the children in foster care as"[n]othing but legal, modern slavery-'however kindlyintentioned."1

05

In 1995, a task force examining the status of the black familyin New York City concluded that it had been "stigmatized, over-regulated[,] ... unsupported... [and] disserved even by well-inten-tioned public policies.' 0 6 At the heart of this conclusion, I think,is a sense that, as necessary and well-meaning as they usually are,child welfare systems often replicate the civil death that was slav-ery. Shabazz reports that welfare officials acted as if they ownedhis family; the Task Force reports that "African-American peoplehave not had a sufficiently effective voice in civil society.' 1 7 Asthe Task Force recognized, remedy requires initiatives on the partof policy-makers and on the part of intensely supervised communi-ties. Policy-makers must formulate programs and standards withthe goal of enabling and empowering communities and familiesrather than with the goal of changing them or usurping their func-tions. Communities subject to supervision must join in shaping thevalues that inform government supervision and support of childrenand families. If government were more enabling and supervisedcommunities were more assertive, government programs might be-come more reflective of principles of extended care, and less remi-niscent of principles of caste hierarchy and control.

104 MALCOLM X & ALEX HALEY, THE AUTOBIOGRAPHY OF MALCOLM X 12-18 (1965).105 Id. at 21.106 Davis, supra note 95, at 1.107 Id.

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