Monday, May 31, 2021

Citizenship, Civil Rights, and the (Grass)Roots of Constitutional Revolution

Guest Blogger

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).

William J. Novak

            In an influential article on “History and the Social Sciences,” Richard Hofstadter set an imposing standard for judging the best historical work.  Channeling the anxieties of every historian, Hofstadter criticized both traditional narrative histories where authors “rarely hesitate to retell a story that is already substantially known” as well as historical monographs that left readers “with misgivings as to whether that part of it which is new is truly significant.”  “Substantially new” and “truly significant” thus became the ever-evasive standard of excellence for professional historical research and writing.

            Kate Masur’s Until Justice Be Done: America’s First Civil Rights Movement passes Hofstadter’s stress test with flying colors.  She tells us something decidedly new – uncovering in unparalleled detail an entire antebellum civil rights movement dedicated to the cause of securing the rights of free African Americans against a raft of racially discriminatory state laws, northern as well as southern.  And she tells us something truly significant – providing a new and utterly convincing account of the historical roots of the Civil Rights Act of 1866 and the Fourteenth Amendment.  This book will forever change the way we think about the history of citizenship, civil rights, constitutional change, and the long struggle for racial justice in America.

            It is impossible to overstate the accomplishment here.  This is one of those extremely rare books that enters into a legal-constitutional field of complexity, confusion, and not infrequent error, and with a painstaking research effort in numerous new primary sources, brings order and clarity.  Oliver Wendell Holmes used to say that the mark of masters is “that facts which before lay scattered in an inorganic mass, when they shoot through them the magnetic current of their thought, leap into an organic order, and live and bear fruit.”  I got something of that feeling when reading this book.

            I can personally attest to the confused state of affairs concerning antebellum citizenship, rights, and state police power before Masur began her important research.  I too went looking for the antebellum prehistory of the Fourteenth Amendment in the wake of the so-called “citizenship debates” of the 1990s.  In search of a clearer conception of what legal and constitutional rights were enjoyed by “citizens of the United States” before the Civil War, I anticipated a quick bit of background secondary research.  After all, what question could be more significant?  Of all constitutional history topics, I falsely assumed, surely this one must have been definitively settled by generations of previous scholarship.  Instead, I was led down a rather deep and bewildering rabbit hole.  Some leading histories did, in fact, posit a consistent set of national citizenship laws and a modern reciprocal relationship between state and citizen as old the American founding.  But primary evidence concerning the substantive legal content of national citizenship rights in the early republic was more elusive.  Citizenship did not figure particularly prominently in the grand debates on the Constitution.  And when it did, it bore out James Madison’s critique of the original “privileges and immunities” clause of the Articles of Confederation: “There is a confusion of language here which is remarkable.”  As Joseph Story summarized the confusion of citizenship under the Articles: “In effect every state possessed the power of naturalizing aliens in every other state; a power as mischievous in its nature, as it was indiscreet in its actual exercise.”  A constitutional revolution and an expansive antebellum legal treatise tradition didn’t alleviate many of the difficulties.  Indeed it was a truism of early American history that many non-citizens (primarily white and male non-citizens) ended up enjoying far more rights, entitlements, privileges, and immunities than a great many citizens of the United States (particularly, married women and free persons of color).  What does it mean to deploy the category of “citizenship” to talk about things enjoyed by non-citizens but denied citizens?  Occam’s razor suggests that such things were not primarily matters of citizenship.  By 1862, even Attorney General Edward Bates expressed frustration with the difficulties of this tortuous topic:  “Who is a citizen?  What constitutes a citizen of the United States?  I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase citizen of the United States.”

            Enter Kate Masur.  With this book, Masur sorts this whole thing out for us seemingly once and for all – which is a remarkable historical feat and a tremendous professional service.  How does she do it – how does she see her way through this dense and confusing material that has defeated so many past inquirers?  As I see it, Masur makes three key methodological moves that allow her to portray this history in an entirely new light.  First, though the crisis of slavery frames this whole book, Masur gains a new perspective on the antebellum civil rights struggle by focusing attention on the distinctive rights claims of free African Americans.  Beyond the conventional tale of the road from Dred Scott and Lincoln-Douglas to Civil War and the Reconstruction Amendments, she documents a wider freedom struggle as free people of color, together with their white allies, organized and mobilized a decades-long movement to secure African American rights and privileges and immunities, state-by-state, controversy-by-controversy.  Second, while the formal question of citizenship also looms large in her story, she breaks fresher ground by paying even more attention to crucial battles over racially discriminatory state police power laws.  For me, this is one of the great revelations of this book.  In my opinion, no other scholar has come close to Masur in fully explicating in precise detail the central role of state police powers in the construction of racial hierarchies of inclusion and exclusion (along with rights claims and rights denials) in antebellum America.  What she calls “America’s first civil rights movement” aimed precisely at producing an anti-discrimination limitation on state police power – a goal that would greatly influence 14th Amendment constitutionalism, restraining the power of states, well into our own times.  Finally, in a particularly refreshing bit of revisionism, she finds a key to understanding the full implications of the constitutional revolution of Reconstruction not in tracing the high ideas of individual political luminaries like John Bingham or in the textual exegesis of high court opinions like Slaughterhouse, but in a methodological return to the grassroots – to the freedom struggle as it actually played out in the streets, in everyday local politics and state constitutional conventions, from the ground up in the resistant actions of those actually being denied their civil rights as well as their allies building a longstanding social movement confronting racial discrimination in America.

            The result is a tour-de-force of the new socio-legal history and an example of how it can fundamentally change the way we think about important legal-constitutional issues that we thought we knew so well.  Willard Hurst once noted that “with intelligent diligence and some literary flair anyone can make a good story out of the spotlighted star acts, like the Federal Convention or the Legal Tender Cases or the Court-packing bill.  But the spotlighted acts could not go on without stage crew and audience, and without a complicated environing pattern of activity which produced a theater, a city, and an economic surplus sufficient to allow the luxury of star performances.”  Kate Masur’s Until Justice Be Done reverses the spotlight away from the star acts so as illuminate a whole new world of complicated patterns of activity and activism.  From the struggle against South Carolina’s Negro Seaman Act in 1823 to the fight over the Second Missouri Compromise to the battle over Ohio’s Black Laws in the 1840s, these were the crucial episodes in the development of a civil rights consciousness in early American history.  And as readers of this book will quickly discover, this is the history that must be taken into account for any properly contextualized understanding of the meaning and significance of super-statutes like the Civil Rights Act of 1866 or revolutionary constitutional moments like the adoption of the 14th Amendment in 1868.

William J. Novak is the Charles F. and Edith J. Clyne Professor of Law at the University of Michigan Law School. You can reach him by e-mail at


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