The "new institutionalism" claims institutions are not simple reflections of the social order, but independently influence that order. Institutions may survive and give shape to society long after the issues that led to their creation are irrelevant. This investigation examines legislation and court decisions in the slave-holding U.S. south from 1800-1960, to investigate claims derived from the new institutionalism regarding the courts and their relationship to the legislature. More than any other period and place in U.S. history, justifications of slavery in the antebellum South highlight the importance of institutions in giving shape to society, and the path of evolution of those institutions. The tension between the courts and the legislature defines, in an important sense, the struggle to maintain the social order.
The long-term goal of the project is to address three questions: 1) how could slavery be justified in the public mind of a Christian society, with ideals of both liberty and equality? 2) did the way that slavery was justified and given political legitimacy by the courts shape the ideology of the antebellum South? 3) what was the impact of that ideology on the political systems of southern states? Three tests of hypotheses are offered that correspond to the questions posed above: first, the content of court decisions evolved with changing pressures on the slave regime; second, the development of a pro-slavery ideology emerged in the state legislatures of the South that cross-cut other interests within the region; and third, a temporal relationship between changes in the content of court opinions and changes in the cleavage structure in the legislature existed and was consistent with the predictions of the theory of ideology and the new institutionalism.
To test these hypotheses, two new data sets are collected and analyzed. The first is based on Helen Catterall's compendium of cases concerning slavery. The investigator develops a computer database of cases that involve the actual law of slavery. This work involves an intensive data collection and coding effort focused on the five-volume, 3,000 page Catterall reference. The second data set is developed from the "journals" of the North Carolina and South Carolina legislatures. This involves extensive archival work in Raleigh, North Carolina and Columbia, South Carolina. The comparison of these sources allows the Principal Investigator to investigate the "chicken and egg" question that has plagued those who study institutions: does the thinking of legislative leaders lead, or follow, the decisions written by the courts. The answer appears to be that there is a recursive process of mutual interaction, the essence of path dependence in the new institutionalism.
The information made available from a database of state Supreme Court cases and legislation in antebellum North and South Carolina represents a rich resource for future investigators.
