Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (review)

Barbara Welke's book puts together voluminous testimony from court cases regarding railroad injury and concludes that the rising risk of injury in railroad travel required more restraints on the individual, thus recasting individual liberty into more straitened circumstances than presumably had been the case in 1776. This story focuses on groups who were not terribly free to begin with, notably women and African-Americans, and concludes that the law was shaped by the reality that these groups encountered technology on different terms than did the "free man"—terms which included sexual considerations. More safety precautions were required, and more lawsuits brought, as women and blacks encountered technological dangers and societal prejudices on board and in stations. Lengthy descriptions from the courtroom docket show that more women than men received court hearings on railroad tort issues after 1890.

The problem with this idea is of course that both women and African-Americans were freer when they received their injury than they had been prior to the rise of the railroads. Laws allowing them freedom to travel raised new issues, as always. The new restrictions on freedom in the name of safety were no more restrictive than laws stipulating that women could not earn their living or leave abusive husbands. Nor were they more restrictive than slavery. A historical basis of comparison is lacking in this regard.

Welke brings to bear on her tale several theoretical models, including feminist performance theory, Wolfgang Schivelbusch's ideas on the annihilation of time and space, and literature on personal shock as a side effect of industrial accident, but she begins and concludes with a political idea about how these changes affected ideas of liberty. She also mentions Sigfried Giedion's Mechanization Takes Command. Overall, there is a lack of follow-through with regard to any one theoretical model, however, leaving this reader unsure why each is brought in for one section of the book only and then abandoned. The text could be more integrated and focused, and thus less repetitious.

Welke's book also raises a bibliographical issue, which affects the validity of her conclusions. The text brings back memories of my years reading these same sources at the University of Chicago for an M.A. paper on women's train travel, a Ph.D. dissertation on the social issues raised by passenger train travel, and a book. Yet nowhere do I find reference to these manuscripts in her footnotes, and there is no bibliography other than a list of legal cases. Many of my own findings need to be reconciled with hers. Also, I tend to agree with the view that law changes historically in response to the changing values of society. At some points Welke seems to agree, but then she writes that law was "central in shaping status" (p. 323). If law could do that, why the struggle for equal treatment under law? Jacques Ellul and Herbert Gutman were both pioneers in the relation of technology to law and behavior, and perhaps should have been mentioned as well.

Finally, I have read many times that nineteenth-century awards for injuries tended to be larger for men than women because awards were related to earning power. Did Welke find this to be the case? Such a gendered issue would seem central to her work. Did high earners get higher awards? And does the fellow-servant rule have a bearing on these settlements?

I am perplexed also to find so little mention of the role or responsibility of corporations. Could the incidence of injury that required restrictions on liberty be the result of sloppy railroad management, of people who wanted to run trains for profit more than for service? And were not their freedoms also restricted by the expense of safety requirements? Did the restrictions on liberty wrought by technology...