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

From blues songs to buddy films, in American culture nothing heralds freedom like a train whistle. Paradoxically, the railroad's hazardous tracks also signify danger—the vulnerability of the individual in the face of modern industrial machinery and corporate power.

In this outstanding work of social and legal history, Welke places railroads at the center of the history of liberty in modern America. She argues that a modern liberal conception of individual freedom emerged at the turn of the twentieth century, the product of countless legal struggles to determine responsibility for injuries done on railroads and streetcars to the bodies, minds, and personal status of ordinary Americans. Nineteenth-century liberty (at least as American jurists understood it) implied a robust faith in the autonomy and initiative of free men; courts accepted accidents as a fact of life and were reluctant to hold railroads liable in the absence of gross negligence. According to Welke, the new conception of ordered liberty forged in American courtrooms between Reconstruction and World War I was a distinctly feminized ideal that recognized the need for state protection of vulnerable individuals in the face of overwhelming social and technological forces.

This "recasting" of liberty had dramatic results. Courts held corporations to higher standards of liability. State and local governments introduced a host of agencies and safety regulations to police carriers and their passengers. Corporations adopted strict new rules and cumbersome safety devices. In the way that it disciplined human behavior, Welke argues, this new safety-first regime exemplified the broader transformation of liberty underway in the Progressive Era: "Liberty secured by the state came at a cost to individual autonomy. Whether it was the action of streetcar companies in enclosing cars and adding safety gates so that passengers could board and alight only at specified locations, city ordinances requiring that streetcar conductors not allow women or children to alight from moving cars, state-mandated racial segregation of railroads and streetcars [to protect the status of white passengers], or any other of a number of limitations, limitation on freedom of action was a condition of liberty" (Xii).

Welke constructs her gripping narrative from prodigious research into court cases, legal treatises, census data, official reports, and newspaper accounts. She uses trial records, leavened with research in the manuscript census, to recover the lives of the ordinary Americans—most of them women—who persuaded judges and juries that the formal nineteenth-century conception of liberty was ill-suited to a modern urban-industrial society. The author's analysis of the legal process merges an understanding of how social and technological changes drive legal development (the core tenet of the "Wisconsin School" of legal history) with an appreciation for the unique power of judges and legal doctrines to shape the larger culture (an insight central to Critical Legal Studies). The recent feminist theoretical literature on the performance of gender identity has enriched Welke's reading of court cases. In order to prove injury in a court of law, female plaintiffs had to embrace, to the satisfaction of male judges and juries, "the very vulnerability and dependence that their suits decried" (235). Welke also draws effectively upon the recent work by social geographers on the politics of space. In one of her more notable findings, she shows how the segregation by sex of space on railroad cars before the Civil War served as a crucial precedent for Jim Crow racial segregation in the late nineteenth century.

At times, Welke doth protest too much. Was the loss of personal autonomy represented by painted white lines on the street, automatic gates at railroad crossings, and the like really so high a price to pay for safe and speedy travel? Probably not. But Welke is certainly right that the appearance of those innumerable everyday restraints on human action, which...