"We live's in a free house such as it is": class and the creation of modern civil rights.

• Author: Goluboff, Risa L.

INTRODUCTION

The shift during the 1940s from American public concern with class to concern with race has become a commonplace in American historiography. Alan Brinkley has written that World War II

was a significant moment in the shift of American liberalism from a preoccupation with "reform" (with a set of essentially class-based issues centered around confronting the problem of monopoly and economic disorder) and toward a preoccupation with "rights" (a commitment to the liberties and entitlements of individuals and thus to the liberation of oppressed people and groups). (1) Gary Gerstle has come to a similar conclusion, observing a "seismic" shift in which liberals "committed [themselves] to civil rights ... [and] concerns with class division and the ill effects of capitalist civilization ... lost their primacy" on "the liberal agenda." (2) Brinkley and Gerstle seem to assume at least a historical and perhaps even a natural correlation between government regulation and class on the one hand, and between individual rights claims and race on the other. Even as they acknowledge that class issues "did not disappear from the liberal agenda," (3) they nonetheless describe them as separate from, and contrasted with, the modern thing called "civil rights" that was created in the 1940s. (4)

But there is neither a natural correlation between race and rights nor a historical one. While I agree with Brinkley and Gerstle that racial concerns became more prominent in the 1940s than they had been before, I do not agree that the concept of "civil rights" encompassed race to the exclusion of class. In fact, as I have argued elsewhere, there was no settled category called civil rights in the 1940s; rather, there were many lay people, lawyers, and institutions searching for "rights" to formulate and constitutionalize." (5) The federal government, for example, was struggling to find a place in rights creation and enforcement. (6) And the NAACP's new Legal Defense and Education Fund (Inc. Fund) (7) was only beginning to contemplate the attack on Plessy v. Ferguson (8) that would eventually lead to Brown v. Board of Education. (9) Frameworks, strategies, and outcomes remained uncertain.

The individual rights assertions one finds trapped in the NAACP's voluminous archives--particularly in the labor-related claims of southern agricultural workers--show how varied conceptions of civil rights were during the 1940s. More specifically, they show voices actively pushing the Inc. Fund toward economics and class issues. During this decade of confusion and experimentation, then, the assertion of African American rights did not always take the now familiar form of equal-protection-based antidiscrimination claims divorced from class. What did take that form were the rights claims that the most vocal and successful black lawyers--those in the Inc. Fund--chose to validate, pursue, and make doctrinally foundational. The NAACP lawyers marginalized, cabined, and outright repudiated class issues through the complaints they pursued and those they ignored. By the 1950s, when the antisegregation strategy that eventually led to Brown coalesced, they had succeeded in writing class out of their story.

They succeeded in writing it out of our story as well. The correlation between the Inc. Fund's economically neutralized agenda and a historiography that sees rights in the 1940s as noneconomic is no coincidence. Historians are wrong about the essential nature of individual rights because they have ignored the class-bound aspects of many rights claims of the period. They have ignored these claims because they have largely taken their history and their understanding about civil rights from the NAACP's understanding and agenda. Equating the kinds of rights the Inc. Fund sought to protect with the complete set of rights African Americans sought to assert has thus led historians astray. (10) Whether individual rights in the 1940s can accurately be said to include class as well as race concerns depends in large part on whose rights one examines.

The project of this Article is to recapture the nascent rights claims of southern agricultural workers largely overlooked by both the Inc. Fund and the historiography. Recapturing these claims offers two lessons. First, their very existence at the intersection of race and class undermines the historiography's description of a temporal shift from one to the other. Similarly, these claims disrupt the historiography's correlatives of economic regulation and race-based individual rights. The complaints of African American southern agricultural workers fracture the simple dichotomies--both temporal and conceptual--that we have come to accept. (11) The second lesson stems not from the existence of these claims but from their disappearance. While the cases the Inc. Fund chose to pursue, as well as the many doctrinal, political, and institutional reasons for its decisions, extend beyond the scope of this Article, the simple fact that choices were made forms the core of my present argument. (12) Until now, it has been impossible to see these critical choices because historians have ignored the potential cases the Inc. Fund left behind. Examining those cases illustrates the openness that characterized the creation of civil rights in the 1940s.

1. COMPLAINTS FROM THE RACIALIZED POLITICAL ECONOMY OF THE AGRICULTURAL SOUTH

   Throughout the 1940s, letters from African American southern agricultural workers streamed steadily into the NAACP's national office. Some came directly from the workers themselves, others from branches that had gotten involved in individual cases, and still others from outside organizations and individuals on behalf of the workers. While it is difficult to construct a wholesale civil rights doctrine out of the issues raised in these complaints (and that is not my project), it is easy to see that the issues the agricultural workers raised, and the kind of legal doctrines those issues might have inspired, looked very different from the issues the Inc. Fund pursued and the doctrine it created. In particular, the stories that follow show the abundance of individual assertions of rights far beyond the Inc. Fund's univalent definition of "injustice because of race or color." (13)

   The complaints I discuss below all arose within the particular racialized political economy of the agricultural South. With the possible exception of a few successful African Americans who managed to acquire their own land, the position of black agricultural workers was generally one of extreme dependency, considerable isolation, and actual or virtual immobility. Wage workers, tied to no particular parcel of land, were simultaneously more mobile and more vulnerable to white control than other farmworkers. They also usually exercised the least economic power and endured the poorest living conditions. As tenant farmers, and especially as sharecroppers, (14) many African Americans lived on the land of a (usually white) landowner, whom they paid either with money presumably made from the crop (as was the case for cash tenants), or with a share of the crop (as for other types of tenants and sharecroppers). Because both types of renters (but especially sharecroppers) rarely had the cash necessary to buy the seeds, fertilizer, storage space, or tools they would need for the coming season, they often had to rely on their landlords (or other local white landowners and merchants) to "furnish" (15) such things, usually at an exorbitant rate to be repaid when the crop was harvested. Sharecroppers did so more often (and for more items) than tenants, and, more in debt to their landlords, they found themselves subject to greater supervision by them. (16) Black farmworkers of both the renting and the wage-earning type thus largely lived within a closed economic universe where what money they had was spent in plantation commissaries or in stores that took advantage of their lack of mobility and choice. (17)

   State and local laws still on the books in the 1940s reinforced these conditions of limited African American mobility. The roots of many such laws went all the way back to the post-Civil War Black Codes, though their overtly racial character had long been eliminated by 1940. (18) Hitchhiking laws, for example, curtailed mobility by eliminating a critical, free mode of transportation. (19) Emigrant agent licensing laws limited information flows by requiring labor recruiters to pay often exorbitant amounts for the opportunity to recruit labor in southern states. (20) Some states, like Virginia, required agents soliciting on behalf of employers outside the state to pay $5000 per year for each county or city in which they operated. (21) Alabama went even further, requiring the same amount not only for counties in which an agent operated, but those through which he transported workers. (22) Similarly, "anti-enticement" laws, which southern states also kept on the books into the 1940s, made it a crime for an employer to entice a laborer away from his or her current employment. (23)

   Political repression accompanied economic exploitation. Most black southerners, especially rural southerners, did not vote in the 1940s South, let alone hold public office. And, despite favorable longstanding constitutional precedent, (24) they did not sit on juries. They did not serve as judges or police officers, and the latter often perpetrated violence against African Americans rather than protected them from it. Political participation was so inaccessible to African Americans that many did not even read about elections, voting, or democracy in textbooks created specifically for black schoolchildren that were legislatively mandated to exclude such topics. (25) Moreover, the boards and committees that implemented and administered the various New Deal programs in agriculture, as well as wartime draft, wage, and price boards, were dominated by whites with economic power...