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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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1. MacLean Nancy, Freedom is Not Enough: The Opening of the American Workplace (Cambridge: Harvard University Press, 2006).

2. Woodward C. Vann, The Strange Career of Jim Crow, 3rd rev. ed. (New York: Oxford University Press, 1974).

3. See, for example , Sitkoff Harvard, The Struggle for Black Equality, 1954–1980 (New York: Farar, Straus and Giroux; Hill and Wang, 1981) ; Woodward, Strange Career.

4. See, for example , Payne Charles M., I've Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (1995; Berkeley: University of California Press, 2007) ; Dittmer John, Local People: The Struggle for Civil Rights in Mississippi (Urbana: University of Illinois Press, 1994) . For good summaries of this scholarly shift, see Brown-Nagin Tomiko, “The Impact of Lawyer-Client Disengagement on the NAACP's Campaign to Implement Brown v. Board of Education in Atlanta,” in From the Grassroots to the Supreme Court: Brown v. Board of Education and American Democracy, ed. Lau Peter (Durham: Duke University Press, 2004), 227, 228 ; Payne , I've Got the Light of Freedom, 413–41 ; Lawson Steven, “Freedom Then, Freedom Now: The Historiography of the Civil Rights Movement,” American Historical Review 96 (1991): 456.

5. Payne , I've Got the Light of Freedom, 315 ; McAdam Doug, Political Process and the Development of Black Insurgency 1930–1970, 2nd ed. (Chicago: University of Chicago Press, 1999), 133–34 , 184–85 ; Morris Aldon D., The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984), 3537 . By contrast, many scholars who focus on the Northern civil rights movement, which operated in a region without explicit legal segregation, have explicitly grappled with law as a site of organization and as a means of structuring the choices made by movement actors and their opponents . Sugrue Thomas J., Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North (New York: Random House, 2008) ; Biondi Martha, To Stand and Fight: The Struggle for Civil Rights in New York City (Cambridge: Harvard University Press, 2003) ; Robert Self, American Babylon: Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003) ; Theoharis Jeanne and Woodard Komozi, Freedom North: Black Freedom Struggles Outside the South, 1940–1980 (New York: Palgrave Macmillan, 2003).

6. Klarman Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004) ; Tushnet Mark V., Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 (Oxford University Press, 1994) ; McNeil Genna Rae, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (Philadelphia: University of Pennsylvania Press, 1983) ; Ware Gilbert, William Hastie: Grace Under Pressure (New York: Oxford University Press, 1984) . Klarman generalized the argument first put forth in Rosenberg Gerald N., The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), especially pages 157–69 , 336–42. Mark Tushnet's history of the NAACP's desegregation campaign was an important exception, with its grounding of the campaign in its connection to local communities . Tushnet Mark V., The NAACP's Legal Strategy Against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987).

7. The most prominent examples of that vein of legal history are the essays collected in the bicentennial issue of the Journal of American History, republished as The Constitution and American Life, ed. Thelen David (Ithaca: Cornell University Press, 1988).

8. For an essential corrective to the standard scholarly orientation, see Sullivan Patricia, Lift Every Voice: The NAACP and the Making of the Civil Rights Movement (New York: The New Press, 2009).

9. Goluboff Risa, The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007) ; Engstrom David Freeman, “The Taft Proposal of 1946 and the (Non-) Making of American Fair Employment Law,” Green Bag 2d 9 (2006): 181 ; Engstrom David Freeman, “The Lost Origins of American Fair Employment Law: State Fair Employment Practices Bureaus and the Politics of Regulatory Design, 1943–1964” (PhD. diss., Yale University, 2006), 24264 ; Lee Sophia Z., “Hotspots in a Cold War: The NAACP's Postwar Workplace Constitutionalism, 1948–1964,” Law and History Review 26 (2008): 327 ; Frymer Paul, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton: Princeton University Press, 2008).

10. Mack Kenneth W., “Rethinking Civil Rights Lawyering and Politics in the Era before Brown, Yale Law Journal 115 (2005): 256 , 353. Of course, one can debate the economic and political consequences of the NAACP's workplace advocacy, as do both Judith Stein and Paul Frymer in asserting that the civil rights bar's creative advocacy was channeled by the structure of the political and legal system into channels that blunted its radical potential. Stein argues that Title VII litigation was conducted within a narrow framework that contributed to the decline of the industrial workforce. Frymer is far more admiring of the radicalism of the civil rights lawyers' efforts, but argues that those efforts, guided by existing state structures, drove a wedge between the civil rights movement and organized labor . Stein Judith, Running Steel, Running America: Race, Economic Policy, and the Decline of Liberalism (Chapel Hill: University of North Carolina Press, 1998), 6991 ; Frymer , Black and Blue, 4497.

11. Forbath William, “Caste, Class, and Equal Citizenship,” Michigan Law Review 98 (1999): 1 ; Goluboff , Lost Promise of Civil Rights, 81110 ; Mack , “Rethinking Civil Rights Lawyering and Politics,” 331–42 ; Mack Kenneth W., “Law and Mass Politics in the Making of the Civil Rights Lawyer, 1931–1941,” Journal of American History 93 (2006): 37, 62.

12. Mack , “Rethinking Civil Rights Lawyering and Politics,” 344–45 ; Engstrom David Freeman, “The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943–1964” (unpublished paper, 2009), 63 & n. 277.

13. Kurashige Scott, The Shifting Grounds of Race: Black and Japanese Americans in the Making of Multiethnic Los Angeles (Princeton: Princeton University Press, 2008), 6.

14. The exact definitions of Legal Realism and formalism remain hotly contested to this day. My description of realism is strongly influenced by the big-tent definition offered in Fisher William W. III, Horwitz Morton J., and Reed Thomas, eds., American Legal Realism (New York: Oxford University Press, 1993), xi–xv.

15. Indeed, NAACP labor activist Herbert Hill made this exact point in the aftermath of the statute's enactment: “Title VII not self-enforcing.” MacLean Nancy, “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.

16. “From Protest to Politics: The Future of the Civil Rights Movement,” in Time on Two Crosses: The Collected Writings of Bayard Rustin, ed. Carbado Devon W. and Weise Donald (San Francisco: Cleis Press, 2003), 116 . Rustin's recent biographer notes that Johnson's Howard speech “framed civil rights in terms that Rustin himself might have crafted.” D'Emilio John, Lost Prophet: The Life and Times of Bayard Rustin (New York: Free Press, 2003), 417.

17. Lee , “Hotspots in a Cold War,” 328, 366–68 ; Chen Anthony, “‘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 ; David Engstrom, “The Taft Proposal of 1946” ; Pacifico Michele F., “‘Don't Buy Where You Can't Work’: The New Negro Alliance of Washington,” Washington History 6 (1994): 67 , 79–80 ; Weaver Robert, “An Experiment in Negro Labor,” Opportunity 14 (October 1936): 295 ; Kruman Marc W., “Quotas for Blacks: The Public Works Administration and the Black Construction Worker,” Labor History 16 (1975): 37 , 44 ; Moreno Paul, From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933–1972 (Baton Rouge: LSU Press, 1997), 3065 . Taft's proposal was inartfully drafted, but group representation is one fair reading of its language. A number of observers within the NAACP and the labor movement read it as contemplating group-based relief and were uneasy with it for that reason . Engstrom , “Lost Origins of American Fair Employment Law,” 151–53.

18. Dallek Robert, Flawed Giant: Lyndon Johnson and His Times, 1961–1973 (New York: Oxford University Press, 1998), 222 ; D'Emilio , Lost Prophet, 393439.

19. See, for example, Fiss Owen, “Groups and the Equal Protection Clause,” Philosophy and Public Affairs 5 (1976): 107 ; Fiss Owen, “A Theory of Fair Employment Laws,” University of Chicago Law Review 38 (1971): 235 ; Fiss Owen, “Racial Imbalance in the Public Schools: The Constitutional Concepts,” Harvard Law Review 78 (1965): 564.

20. Fiss, “A Theory of Fair Employment Laws.”

21. See, for example , Stephan and Thernstrom Abigail, America in Black and White: One Nation, Indivisible (New York: Simon and Schuster, 1997), 423–61 ; Moreno Paul, From Direct Action to Affirmative Action, 266, 279.

22. Skrentny John David, “Introduction,” in Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America (Chicago: University of Chicago Press, 2001), 16 ; Skrentny John David, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago: University of Chicago Press, 1996), 7, 2829.

23. “Dickerson Tells Second Ward Aims,” Daily Record (Chicago), February 11, 1939 , box 1, book 1, Earl Dickerson papers, Chicago Historical Society.

24. Pacifico , “Don't Buy Where You Can't Work,” 7980 ; Kruman , “Quotas for Blacks” 44 ; Moreno , From Direct Action to Affirmative Action, 35–39, 95100.

25. Tushnet Mark, “Book Review—Paul Moreno, From Direct Action to Affirmative Action,” American Journal of Legal History 42 (1998): 337, 338.

26. See, for example, Drury Doreen Marie, “Experimentation on the Male Side: Race, Class, Gender, and Sexuality in Pauli Murray's Quest for Love and Identity, 1910–1960” (Ph.D. diss., Boston College, 2000) ; Gilmore Glenda, Defying Dixie: The Radical Roots of Civil Rights, 1919–1950 (New York: W.W. Norton & Co., 2008), 288 , 324–26 ; Rosenberg Rosalind, “The Conjunction of Race and Gender,” Journal of Women's History 14 (2002): 68, 6970.

27. Murray Pauli, Song in a Weary Throat: An American Pilgrimage (New York: Harper & Row, 1987), 126–28 , 214–19, 343–44 ; Gilmore , Defying Dixie, 264–90 ; Gaines Kevin K., African Americans in Ghana: Black Expatriates and the Civil Rights Era (Chapel Hill: University of North Carolina Press, 2007), 110–35.

28. Mack Kenneth W., “A Social History of Everyday Practice: Sadie T.M. Alexander and the Incorporation of Black Women into the American Legal Profession, 1925–60,” Cornell Law Review 87 (2002): 1405 . On the politics of respectability, see Higginbotham Evelyn Brooks, Righteous Discontent: The Women's Movement in the Black Baptist Church, 1880–1920 (Cambridge: Harvard University Press, 1993), 185229.

29. Mack , “Social History of Everyday Practice,” 1432 n. 155, 1443 n. 216, 1470–71; Curtis Carson, interview by Kenneth W. Mack, Philadelphia, Pa., June 11, 1999.

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Law and History Review
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