The epilogue recounts how abolition failed in southern courtrooms, often in areas of private law that did not always – or even often – involve a freedperson. It looks ahead and argues for reparative abolition, which requires that reparations be paid for the harms produced by the aftereffects of slavery and racism and that we scour the American legal system for vestiges of slavery – those that are obvious and those that masquerade as race neutral.

This chapter explores the legality of unions between racially heterodox people. It asks readers to consider miscegenation suits decided in the 1860s and 1870s solely in the context of Reconstruction-era efforts to achieve abolition. Observing the suits from this perspective reveals an important moment of flux in the history of American abolition and reveals the central arguments that would be used to undermine equal citizenship.

This chapter examines a collection of suits decided by the U.S. Supreme Court that together privileged antebellum interpretations of doctrine over the promise of the Reconstruction Amendments, standardized the responses to post-emancipation litigation across state lines, and, ultimately, prevented abolition. The Court adopted the majority views developed at the state level as a blueprint for the edifice of Jim Crow.

This chapter delves more deeply into some issues already explored to explain how the existence of the Confederacy complicated judicial decision-making. Judges considered how the exigencies of war shaped personal disputes, rendered verdicts on contracts executed during the war, and examined the use of Confederate currency in those agreements. In doing so, they intervened in the longstanding debate over the right of secession, considered the lingering effects of the Confederacy’s existence, and contributed to political discussions about who had the legal authority to enact Reconstruction policy and what shape it could take.

Suits related to freedpeople’s marriages – the linchpin of familial legitimacy – put the disabilities of the slave past, rather than newly granted rights, at the center of discussions about freedom and abolition. In each, a domestic conflict exposed the need to consider the previous actions and intentions of freedpeople, and prompted an assessment of how the established laws and customs of domesticity could be applied to those formerly excluded from their protection. Rather than exposing the ways that race and former status determined whether freedpeople were entitled to equal rights, this chapter considers whether former status prevented some rights – including the most fundamental among them – from being enjoyed at all.

The introduction begins an exploration of abolitionist jurisprudence and the judges who practiced it. It explains the difference between emancipation and abolition and the way the book uses and builds on existing abolitionist theory. It maps the books argument: that legacies of slavery survive in private law, which modern abolitionists have missed.

A deeply contentious judicial debate over the enforcement of contracts for the sale or hire of enslaved people erupted as one of legal Reconstruction’s central battles. This chapter explains the doctrinal approaches favored by judges, analyzes their underlying legal rationales, and explores the consequences of choosing one rationale over the others. It argues that a fundamental disagreement about the meaning of the Thirteenth Amendment caused the judicial discord. The outcome of that disgreement – the enforcement of contracts – permanently weakened the power and potential of the Thirteenth Amendment.

This chapter begins an extended exploration of how judges conceptualized the emancipated person. It illuminates the pivotal connection between cases that asked judges to resolve disputes that had grown out of slavery (e.g., contracts for the sale of an enslaved person) and those that required them to consider the rights of newly freed people (e.g., the right to testify). It traces judicial deliberations, analyzes the law’s power to “make and unmake persons,” and considers the effects of that power on freedpeople. As property in persons was destroyed, freedpeople emerged – phoenix-like – from the ashes. In this formulation, emancipation revived the formerly “dead” enslaved person, as she emerged from the wreckage of the peculiar institution.

In a series of case studies, this chapter surveys the methods by which judges determined when and how emancipation occurred. By examining opinions at this granular level, it demonstrates that in law as in practice, emancipation happened many times over; reveals the variety of ways that judges believed slave property became free people; and explores the judicial struggle to arrive at such determinations. It ultimately explores judicial interpretations of where the sovereign power to liberate bondspeople resided.

This chapter locates the link between slavery and capitalism in the mundane transactions between and the financial plans of white southerners that were adjudicated following the Civil War. Decisions in these suits helped ensure that the relationship between slavery and American economic development remained undisturbed, and reveal an underappreciated aspect of the incompatibility of liberal capitalism with abolition.