Friday, May 28, 2021

Civil Rights Without Slavery

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).

Kunal Parker

Until Justice Be Done is a monumental book.  Mapping out what she calls “America’s first civil rights movement,” Kate Masur explores the fraught history of multiple efforts, public and private, legal and political, by Whites and Blacks, to demand citizenship and equality for free Blacks between the American Revolution and the Civil War.  Decades of struggle, rewarded by successes and visited with failures, would culminate in the Thirteenth, Fourteenth, and Fifteenth amendments to the U.S. Constitution.

What free Blacks were up against was daunting.  Around 1800, as the number of free Blacks began to grow as a result of emancipation in the North and manumission in the South, states and territories all over the country began to seek ways of excluding and removing free Blacks.  Free states repurposed centuries-old restrictions on the movement of the poor to new effect.  They demanded bonds and sureties of free black entrants, excluded free Blacks from poor relief and public schools, and threw in a bunch of other restrictions for good measure, including prohibiting Blacks from testifying against Whites.  In the country’s capital and in the slave South, things were far worse.  Free Blacks who could not provide adequate account of themselves found themselves thrown in jail, the threat of being sold into slavery looming over them.  Black sailors on ships docked at Southern ports were forced into prison until their ships left port.  Throughout this period, the question of whether free Blacks were citizens of the United States—as opposed to of individual states--remained a hotly debated question.  Free black suffrage was the exception rather than the norm.  Free Blacks faced many of the legal disabilities faced by non-citizens and for many purposes fared considerably worse than white aliens.  The American Colonization Society was at the forefront of public and private efforts to transport free Blacks out of the country.

Free Blacks and their white allies fought back.  In important part, this took place through a kind of “silent” subversion of the law.  Given how desperate people were to escape slavery, free states were simply unable to check the growth of free black populations.  As free black communities emerged in the North, a modicum of prosperity and stability translated into political networking and organizing.  Meanwhile, northern Whites began to participate in efforts to free black fellow citizens trapped in Southern jails and to agitate for better treatment of black sailors in Southern ports.  A renewal of the anti-slavery movement in the 1830s would translate into all manner of alliances between Whites and Blacks, leading by the 1840s to important successes in overturning discriminatory laws in states like Ohio.  The path of the movement was uncertain.  There was never a guarantee that Whites’ commitments would line up with those of Blacks.  This was true even after the country had paid the heavy price of civil war.  Through all this, however, the idea of black citizenship—and some commitment to equality for Blacks—would crystallize.

So far as I know, nobody has explored this story in as comprehensive a manner—or in as great a level of detail—as Masur.  What she accomplishes is truly impressive.  Masur gives us detailed accounts of specific developments in Massachusetts, New York, Ohio, Indiana, Illinois, Washington, D.C., and other jurisdictions.  She looks at judiciaries, legislatures, and executives at the federal and state levels.  She moves seamlessly from local to state to national registers.  She covers issues ranging from the plight of hapless Blacks trapped in Southern jails to attacks on free black communities in the North to changes in constitutional law to the arabesque of late antebellum party politics.  The range of materials Masur has examined—from poor law records to local court registers to constitutional conventions to legislative debates to law cases to newspaper accounts to pamphlets to the papers of individuals—is nothing short of dazzling.  The focus on state-level agitation is especially novel.  For all these reasons, Masur’s book is destined to become a canonical work of reference when it comes to race, law, politics, and citizenship in the antebellum period.

The very seriousness and heft of Masur’s work suggests to me that she would welcome critical engagement with it.  To that end, and without seeking in the slightest to detract from the praise this book so richly deserves, I wish to devote the remainder of this review to interrogating Masur’s characterization of her subject as America’s “first civil rights movement.”  The phrase appears in the book’s subtitle and at various points in the text.  What is at stake in such an appellation?  What are its effects?

Masur herself says that drawing attention to America’s “first civil rights movement” is important because “our focus was elsewhere—on the origins of the sectional crisis, the great pre-Civil War debate over slavery, or the history of northern Black communities themselves.  What we have missed was a struggle for racial equality in civil rights that spanned the first eight decades of the nation’s history, a movement that traveled from the margins of American politics to the center and ended up transforming the US Constitution.” (p. xiii).  With this assertion, and with the argument that the antebellum struggle against racist laws plays a role in leading up to the Civil War amendments, I largely agree.

But to call the period the “first civil rights movement” anticipates, as it were, the “second.”  And even though the “second” civil rights movement is not discussed in Until Justice Be Done until the very end, it constitutes, I submit, a kind of absent, spectral sequel that casts its shadow backwards on the “first,” coloring Masur’s reading, imbuing it with a coherence and directionality that occludes other possible readings. 

Some of this coloring occurs at the level of prose.  I could legitimately be accused of overstating my point when I confess to slight uneasiness over Masur’s assertion that Ohio’s early nineteenth century Black Laws “render[ed] African Americans . . . a suspect class” (p. 3).  For the legally trained, are we supposed to recognize here an echo of the “suspect classification” language of modern Equal Protection jurisprudence?  Perhaps Masur means something much less legally-saturated when she uses the term “suspect class.”  Perhaps not. 

I feel this uneasiness also, because, as I read through Until Justice Be Done, I did not get enough of a sense that membership, citizenship, politico-legal subjectivity, rights, equality, and justice had meanings and significances in the antebellum area very different from those they would have a century later.  In the Epilogue, Masur writes: “The men and women of that movement [the ‘first civil rights movement’] looked at their flawed country and demanded something better.  They unflinchingly attacked the enduring legacies of slavery in American life.  They deplored racism in public policy.  They sought due process and equal protection for everyone, everywhere” (pp. 356 – 57).

The enduring legacies of slavery”?  Could slavery between 1800 and 1860 meaningfully be thought of in terms of “legacy”?  During the “first civil rights movement,” if anything, slavery was growing.  It was the norm for African Americans, not the exception. Even in the post-emancipation societies of the North that are Masur’s focus, I submit, slavery was no “legacy.”  The free Blacks that free states tried so energetically to exclude were escapees from something all too present.  For Northern free Blacks, slavery was painfully real: they could easily find themselves re-enslaved if they found themselves in the wrong place at the wrong time.  Whether one looked at politics or at law, for many, right up until 1860, it looked as if slavery and its extending penumbra might overwhelm freedom. 

What did it mean to push for civil rights in the looming presence of a thriving slavery?  Did the brute fact of slavery alter the meaning and experience and language of claiming equality?  Does “deploring racism in public policy” look different when the legal difference between slavery and freedom remains so powerfully inscribed in law and politics?  Much of the racism that free Blacks and their allies were contesting was, after all, inextricably intertwined with an actual and potent slavery.  Colonization itself was no straightforward expression of distaste for Blacks.  It made sense only in relation to slavery, which is why so many recognized it as a ruse to protect slavery.  Opposing it, therefore, was also hard to dissociate from slavery. 

I wonder, then, about Masur’s claim that participants in the “first civil rights movement” “sought equal protection and due process for everyone, everywhere”?  “Equal protection” and “due process” are themselves formal legal concepts: their meaning and application shift over time (and they do not give relief from all kinds of harms experienced as racist).  Were free Blacks and their white allies claiming what we understand by these terms or something much more inchoate?  This leads me to another point. Does the fact that so many white “civil rights” activists switched from being ardent supporters of colonization to being ardent supporters of black claims not suggest vast differences within the “first civil rights movement”? Masur is of course eminently aware of this.  In 1821, Masur tells us, an important figure in the “first civil rights movement,” the Quaker Benjamin Lundy, urged free states to “agree to receive free colored persons upon the footing of aliens . . . (p. 37; emphasis added).”  The path to citizenship claims for free Blacks seems to have meandered a bit even within the movement, it would appear, with some supporters arguing that they should at least be treated like aliens.  All of this suggests that the “first civil rights movement,” depending on when one examines it, pointed in radically different directions.

In Masur’s text, I would argue, the history of “the first civil rights movement” appears like the history of a set of self-evident ideas and claims, growing larger and stronger and gathering more adherents, pointing always, already, to the “second.”  My call for reading the “first civil rights movement” more closely in relationship to slavery and in attending rather more closely to its internal variations is, ultimately, a call to disrupt somewhat this coherence and directionality. 

 What I call for should be recognized precisely for what it is: a historian’s call, entirely conventional at that, for more context, more complexity.  As historians, we are used to making that critique and to hearing it of our own work.  So I want to emphasize: Masur need not heed that call.  Given my own interest in problems of historical contextualization, I recognize that there is no single way of producing historical context, no unique method of setting things in relation to one another.  Reifications are indispensable for any intellectual work to take place.  Perhaps Masur wants, precisely, to establish the relationship between the “first civil rights movement” and the “second”?  Perhaps spending too much time attending to the context of slavery comes in the way of what she is attempting here?  Whatever Masur’s reasons, Until Justice Be Done will be book I (and many others) will be turning to repeatedly in the years to come.


Kunal Parker is Professor of Law and Dean’s Distinguished Scholar, University of Miami School of Law. I can be reached at  I would like to thank David Abraham and Charlton Copeland for comments on an earlier version of this review.

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