A Truly "Essential Book": On Kate Masur's Until Justice Be Done

Sandy Levinson

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

  Upon reading Kate Masur’s Until Justice Be Done, my immediate reaction was that it was a truly extraordinarily book from which I learned something on almost literally every page.  Although I have long taught law school courses that touch on the history of American race relations, I do not consider myself a true “expert” on the subject.   I could therefore not help wondering if perhaps my reaction reflected the extent to which I am indeed not completely immersed in the scholarly community from which Masur is writing.  So I was reassured by reading the equally extraordinary blurbs and early reviews that vouch for the importance of this book, all contributed by scholars of the first rank, all genuine experts by any conceivable criteria.  Consider only the following sample:  

Randall Kennedy describes the book as “revelatory… [and] essential reading.”  Stephen Hahn agrees that it is “essential” in delineating the ways that Americans in the period between the formation of the Union and the Civil War came to understand “definitions of citizenship and civil rights.” Alan Taylor describes the book as “a masterpiece of scope, insight, and graceful writing about the central question in the making, unmaking, and remaking of an American democracy. This is a book we will read and conjure with for a long time.”  David Blight, the author himself of what is surely the definitive biography of Frederick Douglass, adds that Masur’s book is “a tour de force of scholarship and lucid analysis.”  Keeanga-Yamahtta Taylor agrees that she has written a “remarkable and shattering book…. Breathtakingly fresh.”  And John Fabian Witt, writing in The Washington Post, assesses the book as “[m]omentous…a brilliant meditation on progress and its limits.”  Many more examples of such notable scholarly exuberance could be offered.

So I am now fully confident myself in stating that Kate Masur has written what should be recognized as a classic, upending lots of “conventional wisdom” about the nature of civil rights and protest movements in the United States prior to the Civil War.  It is also extraordinarily timely inasmuch as the United States is now experiencing not only a return to significant mass protest about the state of our social compact regarding race and ethnicity, but also quite bitter dispute even among scholarly luminaries about the implications of the 1619 Project—and its emphasis on a relentless and hegemonic white supremacy—as against more optimistic readings of the American past (and, therefore and inevitably, our present as well).  No book published in recent years deserves more careful study by anyone seeking illumination about the American past and pondering any “lessons” of that past for our present and future.

Although she is not a legal historian by training, Masur expertly interweaves narratives about individuals and social movements together with important aspects of the realities of the ante-bellum American legal system.  I found myself embarrassed by how much I was learning even about issues I had long touched on in my own courses on American constitutional law.  For example, I’ve long taught the fascinating case of Elkison v. Delesiene, in which Justice William Johnson, sitting “on circuit,” ruled unconstitutional South Carolina’s (his home state’s) Negro Seaman’s Law of 1821; it required that any Black seaman brought into the port of Charleston be immediately jailed for the duration of the ship’s stay in the city.  The captain of the ship was charged with the duty of freeing the seaman by paying any fees incurred in providing room and board in the local jail; should he fail to do that, the seaman would be sold into slavery.  This was, among other things, a response by frightened white South Carolinians, who were in fact a minority of the overall South Carolina population, to the alleged “Denmark Vesey rebellion” in Charleston in which enslaved persons would, in the language of Lin Manuel-Miranda’s evocation of Alexander Hamilton and other American revolutionaries, violently “rise up” against their oppressors.  South Carolinians, not irrationally, considered all free Black seamen to be potential threats.  They might, after all, import alien ideas about freedom; in addition, their very lives as free seamen instantiated a possibility of autonomy that South Carolina could not truly recognize as a genuine possibility for Blacks.  Johnson, however, found that South Carolina’s law violated the Commerce Clause of the Constitution insofar as the state’s law imposed significant costs on the interstate and international shipping prevalent in Charleston.  Only Congress, he declared, had the power to regulate such commerce (a much-debated doctrine that was ultimately rejected by the Supreme Court).  This entailed that even a so-called “sovereign state” like South Carolina was without power to regulate who could serve as members of the ship’s crew.  (The particular case involved a Black seaman on a British ship, so the case raised profound issues of America’s relations with foreign countries.)  I knew this general background.  What I did not realize, until reading Masur’s meticulous chapter, was that free Black sailors were in fact “indispensable” to northern shipping interests, and the issue posed by the case affected many shipping communities well beyond Charleston, South Carolina.  Not surprisingly, New Orleans offered examples of Black sailors who were incarcerated as alleged fugitive slaves, but nowhere were Black sailors truly free of being caught up in what can easily be described as Kafkaesque nightmares.    

At least I was aware of the general issue, as presented in Elkison, even if I was painfully ignorant of the wider story that Masur tells (drawing, to be sure, on the cited work of earlier scholars as well as her own deep archival research).  But I had never before heard about the hitherto obscure Gilbert Horton, a free Black from New York who was, while visiting our nation’s capital, detained and jailed because he did not have on him papers proving his status as a non-slave Black.  Anyone who denies the extent to which the ante-bellum United States was a true apartheid society in many respects should be sadly educated by the necessity of free Blacks to carry their “papers” and to submit them to often skeptical (white) authorities. I was, of course, aware that persons were bought and sold in Washington, D.C.; this was an important issue in the so-called Compromise of 1850 and thereafter.  What I did not know was that no Black person at all could casually choose to visit the city, lest they face Horton’s fate.  Fortunately, Horton himself was able, after several weeks, to procure his papers from New York and to be liberated; but it is altogether possible that he would have ended up being sold into slavery because of the presumption, in Washington D.C. in 1826, during the presidency of the notionally anti-slavery John Quincy Adams, that all Blacks were slaves.  

Anyone looking for proof positive of how American apartheid worked at the time could do no better than to read and digest the lessons of this chapter.  It combines the essential features of racist presumptions and “pass laws” that serve to discipline any Blacks who might be without adequate documentation of their free status.  (And, of course, this presumes as well that the racists implementing the pass laws would in fact honor the no doubt often frayed papers they were handed by the frightened individuals under scrutiny.)

But what is so striking about this book—and the source of its true importance—is that it is far more than a retelling, even with many new examples, of Black victimization by racist whites.  Instead, it is the striking story of how Blacks themselves, some of them (relatively) well known, at least to specialists, others as obscure as Gilbert Horton, exercised their own agency to found organizations, often but not always in league with sympathetic whites, devoted to what we would today call Black liberation.  Even today, many Americans interested in the history of Black liberation are likely to focus on a number of “white saviors,” perhaps complemented by the example of Frederick Douglass.  I strongly suspect that most of “us”—i.e. white liberal legal academics—when thinking about Abolitionism or the anti-slavery movement more generally think first of a number of white leaders, whether William Lloyd Garrison or the Grimke sisters.  Lawyers might add to the list idiosyncratic “anti-slavery constitutionalists” like the indefatigable Lysander Spooner or the Ohio lawyer Salmon P. Chase, probably the major “mainstream” anti-slavery lawyer of the 1850s (who would become Abraham Lincoln’s nominee to succeed Roger Taney as Chief Justice of the Supreme Court in 1863).  And, of course, most of us by now are quite well aware of Frederick Douglass.  But Masur introduces, at least to general readers and, I suspect, even many “specialists,” a host of new Black characters who played essential roles in creating vibrant and important movements that helped to destroy the existing party system of the 1830s and ‘40s.  Many of them took quite different positions from Douglass, and one realizes how mistaken it is to reduce the complex reality American Blacks to a small number of those we view as "leaders."

So part of the importance of the book is elaborating the importance of Black agency in creating their own vibrant institutions, often, of course, churches, that would play vital roles in the what Masur calls “America’s first civil rights movement” that preceded Fort Sumter.  But she can also be read as vindicating as well at least some of the hope, expressed in “We Shall Overcome” that Blacks and whites together might unite in transforming American reality.  Even if we must liberate ourselves from the narrative of white saviors “bringing” freedom to oppressed and victimized Blacks, it would be a mistake to ignore the extent that there were many whites who were willing to work together with those who would, after 750,000 people were killed during 1861-1865, finally be recognized as “African-American” citizens of a single American community, at least in the formal eyes of the law.  If one wants to reject the starkest implications of the “1619 narrative,” one can find some basis for doing so.

Black agency can, of course, take a variety of forms.  Some of the most interesting passages in the book involve the heatedly debated issue of Black colonization.  Again, I think it is fair to say that most scholarly discussion of colonization focuses on white supporters of the concept, including, say, Abraham Lincoln, who fantasized about what in another context Mitt Romney in 2012 called “voluntary self-deportation” as late as 1863.  Surely Lincoln’s most notorious single political speech was one he gave to a group of Black leaders in Washington in 1862 in which he pressed them to support colonization in Panama.  Indeed, Masur has written elsewhere an important account of that meeting.  It is not surprising that most of the discussion of the colonization is critical, given that it is impossible not to assign racist motives to almost all of its white supporters, including Lincoln.  To be anti-slavery, as Lincoln certainly was, did not in the least entail an openness to a genuine vision of a biracial America predicated on truly equal citizenship. Douglass himself was harshly critical not only of Lincoln, but also, importantly, of any Blacks who themselves flirted with ideas of leaving the United States.

         However, Masur notes that “[f]or decades, black northerners had discussed whether to leave the United States and light out on a project of racial uplift and autonomy in some other, more friendly location. Over the antebellum period, African Americans’ support for emigration tended to rise in periods of white animosity toward free blacks and ebb when prospects for a future in the United States appeared to improve.”  Why we should expect Blacks who faced, in so many ways, the consequences of living in what Don Fehrenbacher called “a slaveholder’s republic” predicated on white supremacy, to have necessarily wished to remain within the United States?  This question, I think, has special meaning inasmuch as the United States, with the obvious exception of Native Americans, was settled by immigrants who, with the exception of enslaved Blacks brought from Africa, had chosen to renounce their commitments to a homeland in favor of seeking a better life in the New World.  Huck Finn’s decision to “light out for the territories” in order to escape what he correctly recognized to be an indefensibly stifling social and political order surely captured one aspect of the fundamental American political tradition going back to the Mayflower (and possibly some of the early Spanish settlers of Mexico and Florida who were escaping the oppression of the Spanish Inquisition).  

        So a question well worth exploring is why so few Blacks, relatively speaking, followed the advice of advocates of moving to Canada, Mexico, or Haiti—or even Liberia, of course.  Still, even if “the number of northern African Americans who actually left the United States remained relatively small,” Masur writes, “the debate about emigration was intense and hard fought,” revealing “sharp disagreements among African-Americans” about the wisdom of remaining within a country that seemed so resistant to recognizing their membership within the American political community.  Indeed, the reference to “African-Americans” is itself anachronistic, inasmuch as it requires ignoring the message of Dred Scott that Blacks could not be part of that community.  National citizenship was unconstitutional, even if it is true that specific states could, if they wished, offer citizenship to Blacks.  But this, perhaps, should require reference to “African-New Hampshirites” instead of the far more inclusive (and optimistic) “African-Americans,” which became a legal reality only after 1868 and the adoption of the Fourteenth Amendment.  Surely one question worth asking is what the United States had done to earn such loyalty, certainly during the period about which Masur is writing and, alas, even thereafter.  

Masur does most certainly offer an “essential” retelling of the American narrative concerning “civil rights” during a period that has tended to be understudied.  As Alison LaCroix insists, there is, generally speaking, less scholarly and general interest in what she calls the “interbellum” Constitution, i.e., the period between the formation of the Constitution in 1787 and the War of 1812, on the one hand, and then, of course, the epic conflagration that broke out in 1861.  Putting general readers and formal scholarship to one side, it is also a terrible truth that law students in even our “best” law schools rarely are given anything close to a fully delineated portrait of how American law in this period intersected with the overarching actuality of a cruelly hegemonic ideology of white supremacy.  Some students might be exposed to Dred Scott, though usually as a manifestation of what Jack Balkin and I have labeled “judges on a rampage.”  Only rarely are they asked to confront the possibility that Mark Graber is altogether right in suggesting that Taney was acting well within the parameters of American constitutional understandings developed over the course of our first six decades.  The question is not whether Taney was "compelled" to decide Dred Scott as he did, but, rather, whether it was a perfectly plausible decision well supported by the operative modalities of American constitutional analysis.  In any event, it is highly unlikely that more than a handful of students (at least taught by others besides myself) will know of Elkison.  One reason is that it is not a Supreme Court case, and the legal academy is obsessed with the output of that singular institution to the near exclusion of almost anything else.  Masur offers a treasure trove of cases decided outside the Supreme Court, including, of course, many important state court cases.  

        It is important, though, to emphasize that if the story she tells is often depressing, she also narrates often inspiring stories of Black agency, community organization, and the ability to take advantage of those parts of the law that could be used for liberationist purposes.  Not all cases were decided against Black claimants.  It is, after all, easier to protest that one is not being accorded the legal rights that are widely recognized as being available than to have to argue that an iniquitous legal system must be radically transformed in order to establish the basis of new legal rights.  

Much more could be said, and I’m sure that the other reviews in this symposium will further elaborate the importance of this book.  Inevitably, symposia play a double role.  Very often, reader can reasonably conclude decide that, life being short, the reviews provide enough information so that even books highly praised in reviews need not in fact be read.  I often find that reading a serious review will suffice, even if in some abstract sense I am left with a sense of “wishing” that I had time to read the book.  But on occasion, I have been stimulated to order and then to read the book after my appetite has been whetted for the whole text and not simply the inevitably truncated “Readers’ Digest” version that even the most incisive reviews are limited to.  I very much hope that the response to this set of reviews is the latter.  I have not done Until Justice Be Done a full measure of justice because it is overflowing with riches and goads to further discussion.  This is a book not only to be read about, but also to read for oneself.