“Southern trees bear a strange fruit,” Billie Holiday sings in her haunting melody depicting the brutal absurdity of lynching. This depressing peculiarity of post-Reconstruction American life animates Daniel Kato’s Liberalizing Lynching: Building a New Racialized State—a creative and thoughtful examination of the federal government’s role in the cultivation of this “strange and bitter crop.” Suffused with a melancholy and incredulity akin to Holiday’s blues, this text seeks to decipher federal passivity in the face of these gruesome, public, lawless acts. For Kato, the coincidence of southern lynch mobs and liberal democracy represents a paradox in desperate need of explanation. He finds little comfort in accounts that emphasize the weakness of the American state. The federal government, according to Kato, possessed the ability to intervene, prosecute, and save. It simply chose not to do so.

Kato, impressively and adroitly synthesizing the insights of historical institutionalism with legal and social theories, formulates and deploys his own theoretical framework: “constitutional anarchy.” “Constitutional anarchy” is “a conceptual configuration of the federal government that epitomizes accurately the interplay between the political vacillation and judicial accommodation as it relates to lynching.” It is also “a theory of interbranch dynamics that hinges on law and politics being both independent and interdependent simultaneously” and it explains “federal nonintervention without ever completely relinquishing federal authority for rights enforcement” (p. 18). He maintains that “constitutional anarchy is meant to frame the federal government’s fluctuating disengagement with the rights enforcement of blacks in such a way that accurately subordinates the legal complexities of such enforcement to more pertinent question of political will formation” (p. 22). For Kato, judicial decisions regarding lynching constituted a legal jazz—not a strict, consistent reading of court doctrines but improvisational interpretations attuned to the demands of the political environment.

The originality of the argument and carefulness of the research notwithstanding, Liberalizing Lynching does not consider other sources of state power. Capacity clearly matters, as it can determine whether and when a government pursues certain policies. Kato’s careful legal and historical analysis convincingly demonstrates that the post-Reconstruction federal government possessed the ability to intercede in local cases, but abjured its liberal responsibilities. Accommodating this contradiction, judges issued rulings that simultaneously preserved federal authority and countenanced federal fecklessness. He observes, “After Reconstruction, when the federal government provided white Southerners the autonomy to manage racial affairs in the South, the Supreme Court responded accordingly through cases such as Cruikshank, Harris, and the Civil Rights Cases that it was going to rule negatively on issues relating to federal rights enforcement for blacks in the South.” He adds, “In doing so, the Court did not repudiate and/or strip the federal government of its authority to engage in federal rights enforcement” (p. 132). The post-Reconstruction American state was not weak. It was disinterested.

Yet this apathy warrants closer theoretical and historical scrutiny. Capacity is only one measure of state power; autonomy is another. Theda Skocpol teaches us that states are strong when they possess the capacity to pursue their goals (States and Social Revolutions: A Comparative Analysis of France, Russia, and China, 1979) and when “independent goal formation occurs” (1985, p. 9). States “may formulate and pursue goals that are not simply reflective of the demands or interests of social groups, classes, or society” (“Bring the State Back In: Strategies of Analysis in Current Research,” in Bringing the State Back In, 1985, p. 9). Daniel Carpenter brilliantly documents how in the late 19^th Century and early 20^th century mid-level officials within some executive agencies exploited their networks and reputation to “induce politicians to defer to the wishes of the agencies even when they prefer otherwise” (The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928, 2001, p. 4).” Yet this autonomy was not achievable in racial matters. Kato’s study indicates that the racial imperatives of the polity limited the freedom of action of federal officials in local rights enforcement. So the American state was not entirely weak, but it was also not completely strong.

The dual dimensions of state power—capacity and autonomy—and the social and institutional dynamics of the post-Reconstruction American polity clarify the contradictions that inspired this intriguing monograph. Lynching was just one of the criminal aspects of the Redeemers’ South (Eric Foner, Founding Brothers: the Revolutionary Generation, 1988). The federal government turned a deaf ear to African American pleas for security and justice and in doing so hastened the birth and sustained the reign of Jim Crow. The question is: why? It was not due to a scarcity of resources or authority—Liberalizing Lynching makes this abundantly clear. Rather, the government was overwhelmed by the exigencies of racial hierarchy. Whites in the South and North were united by a shared material interest in and ideological commitment to black subordination (Eduardo Bonilla-Silva, Rethinking racism: Toward a structural interpretation. American Sociological Review, 1997). Moreover, the “solid” South’s position within the Electoral College and Democratic Party created mechanisms by which white supremacy could bend the state to its will (Earl Black and Merle Black, Politics and society in the South, 1987). The federal government enjoyed legitimacy and influence but was ultimately beholden to American racism.

Finally, I wonder whether the central paradox driving this text—the tension between legalism and lawlessness—is actually a puzzle at all. Kato seems to concede as much. He suggests that “lynchings are not an aberration that bears no significance to American liberalism; rather, lynchings constitute the very basis by which American liberalism operates.” He adds, “The central premise is that it was only by abandoning the right to personal security for blacks could American liberalism work” (p. 14). Unfortunately, Kato does not adequately expound on this “central premise.” Truth be told, this is one area that needed much more sustained attention. Kato neither defines nor contextualizes American liberalism and, as a result, he misses an opportunity to deepen our understanding of the perverse origins of federal quiescence to white supremacy in the late 19^th Century and early 20^th Century.

Where Kato sees a capricious leviathan, I see a consistent liberal state lacking a deep moral obligation to African Americans. In fact, racial injustice was crucial to the birth of this nation. White supremacy actuated American liberalism. Famed historian Edmund S. Morgan tells us that “[r]acism made it possible for white Virginians to develop a devotion to the equality that English republicans had declared to be the soul of liberty.” He notes that “the forces which dictated that Virginians see Negroes, mulattoes, and Indians as one also dictated that they see small and large planters as one. Racism became an essential, if unacknowledged, ingredient of the republican ideology that enabled Virginians to lead the nation” (American Slavery, American Freedom: the Ordeal of Colonial Virginia, 1975, p. 386). In order to safeguard this great liberal experiment for whites, the “founding brothers” and future generations of political leaders in the South and North forged a series of compromises on race (Joseph Ellis, Founding Brothers: the Revolutionary Generation, 2000). The Civil War and Reconstruction-era constitutional amendments and jurisprudence upended the legal infrastructure of these sordid agreements, but they did little to abrade the nation’s material and ideological investment in white domination (W.E.B. Du Bois, Black Reconstruction: an Essay toward a History of the Part which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880, 1935). Thus, while Liberalizing Lynching presents compelling reasons for why the federal government demurred at “black bodies swingin’ in the Southern breeze,” it does not thoroughly grapple with both the “blood on the leaves” and the “blood at the root.”