Barbara Welke's outstanding book examines the ways that industrial technology—the railroad and the streetcar—reshaped American understandings of liberty. Her argument is sweeping and innovative, crafted from the evidentiary details of nearly a thousand court cases into a broad thesis concerning the emergence of the regulatory state. Where a number of studies have addressed the process of regulation and how Americans shifted the balance between individual right and corporate power, Welke takes a different approach, one that emphasizes the nature of the industrial technology and the lived, daily experiences of Americans. A remarkable photograph, on page 37, of girls at Brooklyn High School's gymnasium in action as they practice boarding and alighting from a specially constructed streetcar platform captures just how serious and comprehensive were the efforts were to regularize Americans' movements in this new social space. Welke argues that these dangerous forms of public transportation worked to undermine more traditional ideas of autonomy and independence and to build up a case for new boundaries of responsibility between the state, the corporation, and the individual. Welke, moreover, considers Southern segregation a part of the larger pattern she finds in Americans' encounter with the technology and its restrictions on liberty. She focuses on why segregation emerged in American life and law around public transportation and how it was coupled with an array of rules governing passengers, such as bars on spitting in trains to prevent the spread of tuberculosis and restrictions on the use of profane language. She argues that Jim Crow railroad laws were widely considered to be modern, efficient, orderly, and above all safe, and she points out that even though segregation applied to whites as well as blacks, the laws were written, enforced, and understood broadly to restrict black movement in social space, not that of whites.
Welke divides her book into three parts: one focused on the physical or bodily; another on the mental or psychic; and a third on the spatial or status issues at law that the railroads brought into American courts. Railroads and streetcars, Welke finds, were so dangerous because Americans insisted that they could exercise human-scale standards of safety, such as timing for themselves when to alight from a train and choosing how to board. Thousands died when they misjudged the train's speed as it slowed down, since in many places trains did not actually stop at a station. Others were injured or killed crossing the tracks after safely alighting, since stations often did not have platforms. Despite these dangers and many others on trains and streetcars, the individual in the daily hustle of modern society found the technology, and the rules springing up to manage it, both humiliating and restricting; yet, it was clear to the courts, the companies, and commissions that only tighter restrictions would prevent these ever-increasing and commonly lethal accidents.
Welke argues that gender played a significant role in how restrictions evolved in this context and what form they took, and her argument is convincing. Women sued the railroads and streetcars often for failing to provide for their safety, and, in the process, their cases shaped the law around principles of interconnection, interdependency, and common vulnerability. Their cases found willing jurists, lawyers, and eventually company counsel, who readily agreed with the wider implications of these cases for limiting the individual passenger's autonomy. Women's cases opened the door to railroad company responsibility for the overall safety of the passengers in nearly every aspect of their travel, rulings that were eventually extended to apply to men as well. Women's cases of "nervous shock," fright, and internal injury to their reproductive systems all combined with contemporary medical and scientific practices and scholarship to create a series of precedents that demanded a higher standard of liability for railroad companies. The companies responded with ever-tighter restrictions and rules to regulate their business, and, according to Welke, the scope of liberty in American life was narrowed even further. In the third section, Welke also shows how segregation laws evolved out of railroad practices and gender relations. She points out that Jim Crow took racial designation out of the hands of the individual and placed it in the hands of the railroad conductor, that middle-class black men challenged the Jim Crow laws at every opportunity, and that Jim Crow cases turned on white men's perceptions of white women's vulnerability in the public space of the railroad car. Segregation became another set of laws devised to ensure the public's safety in the Progressive Era, and it most clearly pitted regulation against liberty.
Welke's work comprises meticulous readings of hundreds of case files at the trial and appellate court levels and a range of legal, medical, and social publications of the late nineteenth and early twentieth centuries. Recasting American Liberty is well organized and extremely well researched. Welke's method is to use deep archival work on the social experience of the law and the legal process in order to understand the context of regulatory development. The final chapter, titled "The Law of Racial Segregation," is one of the very best treatments of this complicated subject in the literature. Recasting American Liberty offers a range of new material on the social development of the law and its role in the development of the regulatory state and makes an outstanding contribution to the history of segregation law.