Black Civil Rights and Black Corporate Rights

There is so much to say about this rich and exciting manuscript, but I’ll focus my comments on one aspect of the book dear to my heart: corporations. Before the Movement deeply examines how Black communities formed complex associations to structure their internal worlds, engage with law, and protect their communities. Historians have lauded Black communitarianism, particularly with regards to land ownership and mutual benefit societies, as a creative lifeline for Black Americans who were excluded from segregated and discriminatory white-run associations. Political economists have likewise examined how Black associations in the post-Civil War period challenged the dominant political economic philosophy of “market individualism,” presenting an alternative vision of what a democratic society could be. (219) In these tellings, associationalism was a vital part of Black survival and advancement within the system of Black Codes and Jim Crow.

 
Yet as Penningroth illuminates, Black communitarianism also had a dark side. When disputes among an association’s members arose, such as between a demagogic preacher and his congregation about the appropriation of church funds, or among extended family members about the disposal of family land, things could get heated. When this happened, Black Americans turned to the “rights of every day use”: the common law of property and contract. Instead of constituting a separate world unto themselves, Black associations and their members were active players in the legal system, compelling state courts to engage with Black community practices and social relationships, and crafting new law in the process. The result was that state courts “regulated power and discrimination among Black people,” while Black litigants compelled courts to address novel issues of common law. (125)

 
Penningroth discusses the myriad associations formed by Black people, including churches, businesses, mutual aid societies, labor unions, and extended families, in great depth. Some of the associations, he notes, officially incorporated in order to achieve their objectives. One chilling example he gives is that of Black rifle societies, which sought to obtain corporate charters in order to gain the legal status of a militia. Penningroth explains, “After all, ‘one man’s mob is another man’s militia,’ and the difference was often a corporate charter from the state.” (131) Other times, Penningroth notes, associations specifically avoided incorporation in order to evade state oversight, as was the case with mutual aid societies. These examples provide a tantalizing window into the early history of race and corporate law, an area that has only recently begun to be explored by legal historians.

 
Incorporation, in sum, was a vital and carefully thought through strategy by Black associations in this period. Before the Movement could do even more to explore the difference between unincorporated associations and corporations. As Penningroth notes at various points, there are important differences between corporate rights and privileges and individual rights and privilege. (122-24) Paying attention to these differences sheds further light on the engagement of Black communities with white supremacist state legislatures and courts. Yet the book tends to discuss the two in tandem, and it is often difficult to tell what association used which form and why that might be important. This muddies the waters about how we understand the role of incorporation in Black associationalism more broadly. For instance, multi-generational landowning families – “a large and complicated tangle of kin” – the book describes as “something like an association – a family corporation.” (p. 115) Family Bibles are “unofficial corporate charters.” (220) Blurring the line between corporations and unincorporated associations this way unfortunately obscures Penningroth’s insight into how Black communities used or declined incorporation for strategic purposes. The distinction between unincorporated associations and corporations is vital to understanding the nature of Black communities’ relationship with law in this period.

 
One signal distinction is the relationship of the incorporators and the state. In thinking about how Black persons structured their associational lives in this period, the process of petitioning for incorporation and invoking the involvement of the state is worth examining carefully. During the nineteenth century, in order to utilize the corporate form, erstwhile incorporators usually had to petition the state legislature for a charter of incorporation. (Certain corporations, like churches, were able to “generally incorporate,” i.e. to file a certificate of incorporation with the state without going through the chartering process.) The chartering process typically involved a legislative discussion of the terms of the proposed corporate charter.  Legislatures could and did impose limitations on the amount of property the corporation could own, the number and cost of shares, the selection process for the board of directors, etc. State legislative records are replete with such discussions, including involving petitions for incorporation that included the word “Colored” prominently in their corporate appellations. The chartering process gave the state much more say in the structure and power of incorporated entities than private, unincorporated associations. As such, for Black incorporators, incorporation was both a distinct method of resistance to discrimination and an express appeal to white supremacist legislatures and courts to involve themselves with the internal administration of Black corporations’ affairs.

 
Another reason to distinguish corporations from unincorporated associations involves the nature of rights-bearing legal personhood for Black people in this period. When Black-owned corporations invoked the rights of contract and property, they did so not by virtue of their members’ legal personhood, but as “legal persons” themselves.  As I’ve shown in previous work, questions about the legal personhood of corporations and racial minorities were discussed in tandem throughout the turn of the century. Overlapping and intersecting legal cases involving the rights of corporations and those of racial minorities shaped the vision of rights-bearing legal personhood that we have today. Yet in important ways, the rights of corporate “persons” and flesh-and-blood individuals were quite different. Corporations brought more cases under the Fourteenth Amendment and enjoyed more robust rights to contract and property ownership than Black Americans did. (One Progressive-Era legal scholar calculated that of the 604 cases argued in the Supreme Court involving the Fourteenth Amendment between 1868 and 1912, 312 involved corporations, while only about one per year involved Black Americans.) Incorporation allowed Black Americans to choose what kind of rights-bearing legal “people” they wanted to be: warm-blooded individuals or corporate “persons.”

 
Distinguishing the rights of corporations and those of Black individuals would add additional support to Penningroth’s argument. For example, the 1908 case People’s Pleasure Park Co v. Rohleder would be an excellent vehicle for exploring the power of corporate personhood in Black civil rights. In this case, the Virginia Supreme Court held that corporations had no race, and so an amusement park corporation owned by and operated for the benefit of Black people could not be excluded from a racially-segregated suburb, because the restrictive covenant that prohibited the sale of the land to “person or persons of African descent” did not apply to corporate “persons.” This argument would not have been possible if the amusement park was operated as an association. The Black owners of the amusement park, in other words, used the corporate form to specifically evade Jim Crow.

 
Penningroth’s analysis of the “rights of daily use,” the common law rights of contract and property, offers an insight into why the Virginia Supreme Court was willing to permit a Black-owned corporation serving Black patrons to buy property in an all-white neighborhood. During Jim Crow, Penningroth reveals, Southern white men who firmly believed in white supremacy nonetheless recognized and respected the legal structure of property and contract even when Black Americans were involved. Rather than rely solely on violence and intimidation, white supremacists worked within the formal structure of the law to conduct routine transactions as well as to maintain racial hierarchy and oppression. Even white supremacist judges took seriously Black Americans’ rights of property and contract. To do otherwise, Penningroth argues, would have been to undermine the common law rules on which white as well as Black people depended. For example, a Black man chased off his homestead through violent intimidation would leave the land without a clear chain of title, impairing the ability of the new white possessor to dispose of the land at a later date. (97) It was much safer, legally speaking, for the white supremacist to negotiate a carefully worded, covertly exploitative mortgage or lease-to-own contract to legally dispossess the Black man of his land. Thus, despite widespread oppression, the formal civil rights of Black Americans were by and large respected in the Jim Crow legal system. Perhaps the Virginia Supreme Court in People’s Pleasure Park was motivated by a similar concern about corporate law – to recognize corporations as racial “persons” might have had problematic consequences for corporate law generally down the line.

 
Another avenue for deeper examination is how, just as Black people’s rights claims helped shape common law, Black corporations also influenced corporate law. Even as Black people used corporate personhood to circumvent Jim Crow, they also challenged the broader legal conception of the corporation. By the turn of the nineteenth century, the dominant legal understanding was that corporations were primarily private, profit-making entities, holding the same rights as market individuals and subject to no additional duties. Yet Black incorporators presented a different vision of the corporation, what we today might call a “benefit corporation” – a corporation that “reconcile[d] ‘plain business’ with the corporation’s duty to ‘the race.’” (127) (Aaron Dhir is also doing some fantastic work on this conflict in his manuscript on litigation involving Marcus Garvey’s Black Star Line.) This vision of the public service corporation harkened back to early nineteenth-century corporate law that prioritized the corporation’s public benefit over pecuniary gains. While Penningroth discusses how “Black power in the waning days of Reconstruction grew in large part from the details of corporation law,” (127) the reverse is also true; the Black “corporate person” in turn challenged the (still relatively new) vision of the corporate person as the equivalent of a private, self-serving, free market participant, with important legal consequences.

 
In sum, Penningroth offers an intriguing new perspective on Black associationalism that demands a deeper inquiry. I look forward to teaching this book next year and to engaging with it in my scholarship.

 
Evelyn Atkinson is the Charles E. Lugenbuhl Associate Professor of Law and the Murphy Institute at Tulane Law School. She can be reached at eatkinson1@tulane.edu.