Vanderbilt Law Review Volume 70 | Issue 2 Article 1 3-2017 Reconstructing Local Government Daniel Farbman Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Civil Rights and Discrimination Commons, and the Law and Race Commons Recommended Citation Daniel Farbman, Reconstructing Local Government, 70 Vanderbilt Law Review 413 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol70/iss2/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 70 MARCH 2017 NUMBER 2 ARTICLES Reconstructing Local Government Daniel Farbman* After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of the black population by wealthy white planters, was no longer viable. The urgent question facing both those who sought to reform and those who sought to preserve the "Old South" was: What should local government look like after emancipation? This Article tells the story of the struggle over the answer to that question. At the center of that struggle is an untold legal history of local government reform during Reconstruction. In the years immediately after the Civil War, idealistic Yankee reformers went south with the explicit aim of remaking the "fabric of southern culture" by rebuilding the South in the image of their northern homes. Specifically, in North Carolina, Virginia, and South Carolina, these reformers rewrote state constitutions to replace the plantation and county court with townships modeled on the New England town. Southern conservatives resisted the new townships, understanding them as foreign impositions targeted to destroy * Climenko Fellow and Lecturer on Law, Harvard Law School. Ph.D. Candidate in American Studies, Harvard University. I am grateful for the comments and advice of David Barron, Susannah Barton-Tobin, Jason Bates, Amanda Claybaugh, I. Glenn Cohen, Dan Deacon, Erik Encarnacion, Dan Epps, Richard Fallon, Jerry Frug, Brook Hopkins, Ben Levin, Leah Litman, Mike Klarman, Ken Mack, John Manning, Aziz Rana, John Rappaport, Brian Richardson, William Rubenstein, Joseph Singer, Rick Su, and John Stauffer. 413 414 VANDERBILT LAW REVIEW [Vol. 70:2:413 their old way of life. Within a decade they had dismantled the new townships and built the foundations of a new Jim Crow local order rooted in the county and approximating a return to the plantation. By telling this new history, this Article contributes to present scholarship in at least two ways. First, the story highlights a binary struggle between "communitarian"localism embodied in the civic participation of the New England town and '"oroprietary"localism embodied in the private power of the plantation owner. This struggle was framed with crystal clarity during Reconstruction, but it remains a powerful analytic tool for understanding today's debates and struggles over local government. Second and relatedly, this history reveals the extent to which racial anxiety shaped and continues to shape local institutions. The communitarian township experiment was fueled by a vision of racial equality-and the white supremacist response to it was fueled by resentment and resistance to that vision. When we think about localism and racial inequality, we tend to think about the responses to school desegregation in the mid-twentieth century when racial resentment and fear during the "Second Reconstruction" drove white flight and contributed to resegregation through suburbanization. This Article shows that we may be looking at the wrong Reconstruction. In fact, the pathologies of local government, racial segregation, democracy, and protection of property were framed after the Civil War, in the crucible of a direct conflict between utopian racial egalitarianism and white supremacy. INTRODUCTION ........................................ ...... 415 I. LOCALISM IN THE ANTEBELLUM SOUTH ................... 423 A. ProprietaryPlantation Localism ................. 426 1. The Manorial Plantation ................ 426 2. The County Oligarchy .................. 429 B. Communitarian Ward Republics...... ............ 430 1. The Ward System ................. ..... 430 2. Wards and Plantations ................ 431 C. Localism at War ................................ 433 II. To REMAKE THE SOUTH .......................... ...... 435 A. The Fabric of Southern Culture and Yankee Local Government ....................... 435 B. The Township Experiments ...................... 441 1. The Township Experiment in North Carolina ...................... 443 a. Albion Tourgde..................... 443 b. North Carolina's Convention............. 446 c. Outsider Resentment: The Conqueror's Localism.... ...... 448 2017] RECONSTRUCTING LOCAL GOVERNMENT 415 d. Racial Resentment: The New Integrated Townships......... 450 e. Conservative Resentment v. Democracy: The Fight to End the Townships ............... 453 f. Demise ................ .. ....... 459 g. Aftermath ................... 464 2. The Township Experiments in Virginia and South Carolina ...... ..... 466 a. Virginia. ................... ..... 467 b. South Carolina .......... ........ 469 3. Elsewhere in the South. ................. 473 C. History Lessons .............................. 475 D. Coda: Jim Crow Localism ...................... ...... 479 III. IMPLICATIONS: PRESENT EXAMPLES. .......... ........... 482 A. Rolling Hills-The ProprietarySuburb .................. 485 B. Memphis Schools-Segregation and Proprietary"Local Control"......................... 487 C. State Takeovers-Communitarian "Local Control".............................. 491 IV. CONCLUSIONS ................................ ..... 493 A. The Virtues of Localism-Federalism....... ..... 494 B. Integration and Redistribution ................. 496 C. Plantationson the Cul de Sac .................. 497 INTRODUCTION The township system is an [e]ducator [i]n Self-Government, and has been commended, at all times, by political thinkers, who have at heart the good of the people. It is one of the grandest of political principles, leaving absolutely to neighborhoods the right to govern themselves in local matters ... 1 Slavery is an indispensable police institution .... 2 In 1860, the population of Granville County, North Carolina, was evenly split: half of the residents were free and half were slaves.3 1. Address to the Voters of North Carolina, DAILY CONSTITUTION (Raleigh, N.C.), July 5, 1875, at 3. 2. GEORGE FITZHUGH, CANNIBALS ALL! OR, SLAVES WITHOUT MASTERS 98 (Richmond, A. Morris 1857). 3. See Rosser Howard Taylor, Slaveholding in North Carolina:An Economic View, in 18 THE JAMES SPRUNT HISTORICAL PUBLICATIONS 64 (R. D. W. Connor et al. eds., 1926). While the vast majority of the black population was enslaved, there were more than nine hundred free blacks living in Granville County in 1860. See JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA 17 (1943). Granville County, because of its even racial split and fortuitously thorough 416 VANDERBILT LAW REVIEW [Vol. 70:2:413 Local government for the free white citizens took the form of the old county court system-appointed county justices of the peace (generally drawn from the social and economic elite) ran the business of local government. 4 Where slavery was strong (as it was in Granville County), the counties were largely controlled by planter elites.5 In every instance county governments were primarily dedicated to protecting the property rights of residents. Counties provided courts and minimal law enforcement, but few other services (schools, aid to the poor, etc.). One reason that the counties were weak was because another, much stronger system of local government existed alongside and within them. The slaves of Granville County were subject to the despotic feudal control of slaveholders on their home plantations.6 With a few minor limitations, slaveholders had wide jurisdiction over slaves' bodies and social lives.7 Although there were certainly circumstances when slaves came into contact with the county court system,8 plantations were the primary unit of local government for the vast majority of the black population. recordkeeping, has been the focus of a number of studies of North Carolina in the nineteenth century. Granville County was the main site of study for Laura Edwards's Gendered Strife and Confusion: The PoliticalCulture of Reconstruction and Sharon Ann Holt's Making Freedom Pay: North CarolinaFreedpeople Working for Themselves, 1865-1900. 4. Elites controlled local government as well. Except for sheriffs and county court clerks, all county officials were appointed. Nominated by state legislators and confirmed by the governor, the powerful justices of the peace held life tenures. Virtually omnipotent in local affairs, they selected most other county officials, set tax rates, determined road-building policies, established schools, and provided for aid to the poor. In their judicial capacity they issued all writs necessary for legal activities. Selected from the "best families" of each county and secure in the values of their social class, the justices of the peace benefited their own kind in the conduct