A Very American Crime Has a Moment
On passage of the Emmett Till Anti-Lynching Act
In a week of bad news there was, at least, a bit of qualified good.
On Monday the U.S. Senate finally passed legislation that makes lynching a federal crime. Now the bill, which was previously passed by the House of Representatives, goes to President Biden, who is expected to sign it into law.
News coverage of the bill has been dutiful, the words “historic” and “first” widely deployed. The stories tend to highlight the both-sides-of-the-aisle-ness of the effort, which was led by Black Senators Tim Scott (R) and Cory Booker (D), and senator-cum-V.P. Kamala Harris. There was also some reflection on the amount of (1) time that has passed and (2) suffering that has occurred during our collective journey toward this legal milestone.
These last points cannot be overstated, or over-amplified. It’s taken more than a century for Congress to pass anti-lynching legislation, despite some 200 attempts to do so. And the best estimates of American lynching put the murder toll at more than 4,400, most of whom were Black.1 During a peak period called the Age of Lynching, murder was being committed about every five days for 50 years.
Lynching was not rare or unusual. It was a regular feature of American culture. This fact is underscored by both the frequency of the crime and the number of times it came before Congress. White Americans knew lynching was happening. Many recognized it for what it was: race terrorism. And yet they could not manage to stop it.
There are still a couple of things that trouble me about the bill. First, it does not really define lynching.
It’s nice that most lawmakers2 now take lynching seriously enough to get behind this bill. In the past, anti-lynching legislation tended to die in the Senate; many, if not most of the previous efforts to outlaw lynching were blocked by Southern senators. (As a counterpoint to that stand-up tradition,3 consider Cory Booker’s passionate response in 2020 to Sen. Rand Paul, who opposed the original anti-lynching bill on the floor of the Senate little more than a week after George Floyd’s murder.)
There are still, though, a couple of things that trouble me about the bill.
First, it does not specifically define lynching. The crime is so awful, and the word so familiar, that at first this might seem a ridiculous point. But lynching in the U.S. has taken many forms across many generations. It was not the same thing, for example, during the Revolutionary War that it became after the Civil War.
In its later practice lynching often involved the murder of a person by hanging from a tree branch. Just as often, however, lynching involved street lamps, bridges, or gallows built specifically for the purpose, to allow enormous crowds of spectators to see the crime as it happened. In many cases, including that of Emmett Till—for whom this bill is officially named—the murder involved no hanging at all.
So, what is a lynching? What is not a lynching? The gray space created here leaves room to maneuver. To wriggle. Room for politics, lawsuits, challenges at the Supreme Court. I’ve written about what a modern lynch mob looks like, and it may seem unnecessary to define precisely a kind of violence that has varied so widely over time. But when we don’t define things we tend not to face them. For now it seems we are left to identify lynching the way Supreme Court Justice Potter Stewart once defined pornography: “I know it when I see it.”
The omission of this history seems intentional. It allows Southern senators to safely vote for a bill their predecessors spent several lifetimes resisting.
To frame it more clearly, consider the case of Ahmaud Arbery, who was murdered by three white men in Georgia in February 2020. The killers were sentenced to life in prison late last year. They were found guilty of federal hate crimes last month. These men were obviously not charged with lynching because the anti-lynching bill was not law when they were on trial.
But what if it had been law? Would it have affected the trial, the media coverage, the national discussion? Would those killers have been charged with lynching? Convicted of it? Without doubt their lawyers would have vigorously denied that the men were lynchers. And they would have found plenty of room to wriggle, because—you guessed it—the anti-lynching bill does not define the crime.4
Aside from legalistic definitions of lynching, there was something else bothering me about the bill. I couldn’t put my finger on it until I wrote to Ashraf Rushdy, a professor of history at Wesleyan University who’s written two books on lynching.5 On Wednesday he pointed out in an email that the bill essentially lumps lynching in with other hate crimes.
Without diminishing the seriousness of those crimes, I believe that lynching is in a class of its own. To paraphrase Rushdy, the current anti-lynching bill ignores the specific history and context of lynching—its very American nature—as well as its evolution from local acts of brutality to massive pageants of white supremacy that were performed before stadium-sized crowds.
The omission of this history in the bill’s text is, I suspect, intentional. The people who need most to reckon with lynching, we white people, consistently prove ourselves incapable of the responsibility. Like petulant children we get agitated, defensive, and angry (or worse) when we’re asked to think about what we’ve done. The bill as written lets us focus instead on historic first-ness or bipartisanship and succeeds in papering over a titanic sin. It allows the modern crop of would-be Southern senators—the same guys who are busy exploding themselves against Critical Race Theory—to safely vote for a bill that their predecessors spent several lifetimes resisting.
Most importantly, the current bill does nothing to address the root evil which once elevated lynching into a weekly event. We can’t expect a solitary law to address that legacy. At best it’s a very minor symbol of contrition. Still, symbols matter, and if we truly care about Black lives we would design something better.
Lynching “was not only about hate,” Ashraf Rushdy told me, “but also about constituting a particular kind of white identity and a particular kind of national identity.” Lynching was an act performed not so much against the victim as for the crowd. And that sort of crowd, that sort of identity, is alive and thriving.6 Just watch a few minutes of footage from the Capitol on January 6, 2021. Probably you’ll know it when you see it.
This point came to me more clearly a day after I published the essay above. You could consider it a summary of the ideas I was working through:
The bill, as it is written is weak. What I mean is that it accomplishes something less than… it is not a forceful, communal call-out of lynching—something of Biblical proportions—nor is it a serious, unanimous declaration that such a crime must never be repeated. Instead, it’s the burnt-coffee version of the thing we actually need. I think this is a function of the time we’re living through, and the leadership we lack.
Many scholars also agree that this number is a significant undercount. More lynchings likely occurred than we will ever know.
But not all: State Reps from Georgia, Texas, and Kentucky voted against it in the House.
Lest there be any doubt, I’m being sarcastic.
You don’t have to look any further than Donald Trump’s two impeachment trials to find examples where legal definitions, or the lack thereof, lead into the shit. Remember all the parsing of the phrase “high crimes and misdemeanors?”
In February, Arizona State Senator Wendy Rogers spoke before a white nationalist group and said “we need to build more gallows.”