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Bringing the Law Back into the History of the Civil Rights Movement


It is a pleasure to comment on Nancy MacLean's hugely important book Freedom is Not Enough: The Opening of the American Workplace as an example of what I might call “bringing the law back in” to the history of the civil rights movement. A generation ago, the idea that law needed to be introduced into this history would have seemed nonsensical. At that time, law provided one of the central touchstones in the historical narrative of the struggle for racial equality in American life. Scholarship in this area built on C. Vann Woodward's pioneering work on the rise of Jim Crow, which itself was written shortly after Woodward's participation in the Brown v. Board of Education litigation. The dominant narrative began with the legal construction of Jim Crow in the late nineteenth century and continued with the founding of the NAACP. Other actors came along at various points in the story, prominent among them New Deal–era racial liberals, World War II–era activists, midcentury social scientists, Southern civil rights leaders and movements, and eventually black power. The end point was marked by the litigation and legislative victories of the 1950s and '60s, which finally wrote back into law what had been taken away by segregationist white Southerners and a compliant Supreme Court in the late nineteenth century. The implicit methodological take on law was that state and federal statutes, as well as court decisions, provided an important impetus, or at the very least a validation, for racial change—first for white Southerners as they created the Jim Crow legal regime and later for segregation's opponents as they reinscribed racial equality onto the core narrative of American life.

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Steven Lawson , “Freedom Then, Freedom Now: The Historiography of the Civil Rights Movement,” American Historical Review 96 (1991): 456

Mark V. Tushnet , The NAACP's Legal Strategy Against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987)

William Forbath , “Caste, Class, and Equal Citizenship,” Michigan Law Review 98 (1999): 1

Kenneth W. Mack , “Law and Mass Politics in the Making of the Civil Rights Lawyer, 1931–1941,” Journal of American History 93 (2006): 37, 62

Nancy MacLean , “Achieving the Promise of the Civil Rights Act: Herbert Hill and the NAACP's Fight for Jobs and Justice,” Labor: Studies in Working-Class History of the Americas 3 (2006): 13, 14

Anthony Chen , “‘The Hitlerian Rule of Quotas’: Racial Conservatism and the Politics of Fair Employment Legislation in New York State, 1941–1945,” Journal of American History 92 (2006): 1238

Marc W. Kruman , “Quotas for Blacks: The Public Works Administration and the Black Construction Worker,” Labor History 16 (1975): 37

Owen Fiss , “A Theory of Fair Employment Laws,” University of Chicago Law Review 38 (1971): 235

Owen Fiss , “Racial Imbalance in the Public Schools: The Constitutional Concepts,” Harvard Law Review 78 (1965): 564

Rosalind Rosenberg , “The Conjunction of Race and Gender,” Journal of Women's History 14 (2002): 68, 6970

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
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