Rethinking civil rights lawyering and politics in the era before Brown.

AuthorMack, Kenneth W.

ARTICLE CONTENTS INTRODUCTION I. THE MAKING OF A LEGAL LIBERAL INTERPRETATION II. SETTING THE STAGE: LOCHNER, THE POLICE POWER, AND RACE UPLIFT A. Civil Rights Lawyers and the Lochner Tradition B. Civil Rights Lawyers and the Police Power C. The Voluntarist Alternative D. Conclusion: The Emergence of Race Uplift III. CIVIL RIGHTS LAWYERING IN THE ERA OF MIGRATION: VOLUNTARISM, LEGALISM, AND RACE UPLIFT A. Voluntarism, Anti-Legalism, and Equal Citizenship B. Legalism, Pluralism, and Equal Citizenship C. Citizenship Claims and Public Opinion D. Conclusion IV. SOCIAL ENGINEERING IN PRACTICE: AN ALTERNATIVE HISTORY OF THE DEPRESSION ERA A. Three New Frames for the Private Labor Market: Antidiscrimination, Marxist Politics, and the New Voluntarism B. The Influence of Progressive-Realist Jurisprudence C. Civil Rights in the Private Labor Market: The Emergence of Labor Law D. Civil Rights in the Private Labor Market: The Emergence of Antidiscrimination Practice E. Conclusion V. THE REVOLUTIONS OF 1938: LEGAL LIBERALISM AND ITS ALTERNATIVES CONCLUSION INTRODUCTION

The Brown v. Board of Education litigation, and the Supreme Court decision that it produced, (1) have cast a long shadow over the legal historiography of the civil rights movement. The Brown litigation has become the lodestar for a "legal liberal" interpretation of civil rights history. (2) Its core elements have become familiar: courts as the primary engines of social transformation; formal conceptual categories such as rights and formal remedies such as school desegregation decrees, as the principal mechanisms for accomplishing that change; and a focus on reforming public institutions (or, in some versions, public and private institutions without much distinction) as a means of transforming the larger society. (3) Legal liberalism, of course, is an ideal type, and scholars have given varying emphases to its core elements in their accounts of civil rights law and politics. Nonetheless, the legal history of civil rights has been written with the Brown decision at its centerpiece, telling the story, in effect, of the antecedents and consequences of Brown. Civil rights history remains, at its core, the story of how African-American communities, and the lawyers and organizations that supported them, struggled to overturn Plessy v. Ferguson, (4) attack de jure segregation, produce the triumph of legal liberalism in Brown, and effectively implement Brown's antidiscrimination mandate. (5)

I will argue in this Article that the legal liberal interpretation of civil rights history is a myth--at least as it applies to the African-American civil rights bar during the period between World War I and II. That is, this interpretation is less an engagement with the complicated civil rights politics that had emerged by the middle of the twentieth century than a historical interpretation that helped scholars, commentators, and civil rights lawyers themselves make sense of American politics in the late twentieth century.

The first group of scholars who studied the interwar generation of black lawyers charted a variety of objectives for these lawyers' professional practice. But in the aftermath of the NAACP's success in Brown and its companion cases, led by a predominantly African-American legal team, the prevailing conception of those lawyers began to change: Both historians and legal scholars began to imagine instead that legal liberalism had been the primary object of their efforts. By the 1970s, the new interpretation was in full bloom, with a spate of books and articles chronicling what was assumed to be the legal liberal struggle of African-American lawyers, civil rights organizations, and local communities that achieved its longstanding objective in Brown.

By the late 1970s, the new interpretation of civil rights history was generating its own counter-literature, with a variety of scholars critiquing legal liberalism as a limiting rather than emancipatory approach to law and social change. Leftist scholars, many associated with the Critical Legal Studies (CLS) movement, focused mainly on rights-talk and Supreme Court decisionmaking in the aftermath of Brown. They argued that the abstract, contradictory, and unstable nature of the legal liberalism that took shape in and after the Brown decision limited the effectiveness of that rights discourse as a means of changing the status quo. (6) A somewhat different group of scholars critiqued the practice of public interest lawyering that grew up after the success of the Brown litigation as ineffective in achieving its objectives, counterproductive in diverting resources away from progressive goals, and conservative in reinforcing the power of existing institutional arrangements and structures of subordination. (7)

In 1991, yet another critique of legal liberalism emerged with the publication of Gerald Rosenberg's The Hollow Hope. This newer critique was neo-institutionalist, (8) shifting the focus away from rights-talk and lawyers' practices to institutions--the interactions between courts, legislatures, and public opinion--and its overwhelming message was of institutional constraint in the civil rights arena. (9) Rosenberg argued that the Supreme Court's decree in Brown was largely ineffective until the executive branch and Congress began to support civil rights reform a decade later. He concluded that black communities and the NAACP had misplaced their resources by relying on legal liberal transformation and should have supported lobbying, community mobilization, and direct action instead. (10)

More recently, Michael Klarman has generalized Rosenberg's argument that the civil rights advances of the late twentieth century had little to do with court decrees and much more to do with social phenomena and trends that occurred largely outside of the bounds of judicial action, and that Brown helped mobilize opponents of integration. (11) Klarman argued that between Plessy and Brown, Supreme Court decisions in the civil rights arena were largely in accord with public opinion, and the Court's decrees, for the most part, were effective only where public opinion supported them. In fact, he asserted, the principal short-term effect of Brown itself was to inspire a white segregationist backlash in the South. (12) A related line of scholarship has combined the argument that courts rarely push social change ahead of contemporary mores with the assertion that the legal liberal faith in desegregation remedies helped destroy intraracial institutions, such as segregated schools, that served a salutary purpose in local African-American communities. (13) Derrick Bell has taken this argument so far as to claim that the Court should have rejected the Brown lawyers' claims and instead vigorously enforced separate-but-equal. (14)

By the time of the fiftieth anniversary of Brown in 2004, much of the thrust of the leftist and neo-institutionalist critiques had become mainstream. Indeed, a central message of the books and symposia published to commemorate that occasion was of civil rights lawyers and organizations that were wedded to a legal liberalism that had apparently triumphed in Brown, only to be frustrated in its aftermath. (15)

The background assumption underlying the critiques of both the neo-institutionalist and leftist scholars was that there existed a vibrant legal liberalism that had come into being by mid-century, with its greatest exemplar being the Brown decision and the struggle to implement it. (16) That struggle, it was assumed, was the product, in part, of the apparent successes of a civil rights movement wedded to rights, courts, and an attack on de jure segregation. Indeed, the central debates that have occupied these scholars--rights as tools for reform versus rights as supports for the status quo, and courts as engines of social change versus courts as powerless institutions--only make sense given this background assumption.

In this Article, I will analyze the intellectual and cultural history of African-American lawyers and civil rights politics between the First and Second World Wars without the background assumption of legal liberalism. In the standard interpretation of civil rights history, the interwar period is the formative era for modern civil rights politics. During that period, the African-American lawyers who would take charge of the NAACP's litigation came to the bar, established themselves in practice, displaced the white lawyers who handled the NAACP's early cases, and secured the first of the Supreme Court precedents that are thought to have laid the groundwork for Brown. If there is anywhere that the antecedents of legal liberalism should be found, it would be in these lawyers' practices during this period.

I will argue, however, that the professional project of the African-American bar during this formative era encompassed far more than the creation of a juridically cognizable right to be free of segregation. In fact, that project generated disputes within civil rights politics and arguments about law, social change, and African-American identity that far exceed the scope of the debates that have animated standard legal histories of the civil rights movement, or the more recent work of its leftist and neo-institutional critics. I will argue that legal liberalism should be abandoned as an organizing principle for understanding civil rights history in the interwar period. Although the analysis presented here ends during World War II, I will suggest that scholars should also be wary of concluding, as recent work has suggested, that a pervasive, coherent, and unsophisticated legal liberalism had taken shape within civil rights politics by the time of the Brown decision. If that is so, the scholarly debates that have been premised, in part, on this assumption should also be re framed.

One methodological shift that this Article calls for is a shift in the locus of civil rights law and politics...

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