Thursday, May 27, 2021

Rights, Power, and the First Civil Rights Movement

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).

Laura F. Edwards

Kate Masur’s Until Justice Be Done: America’s First Civil Rights Movement is a stunning accomplishment. In this post, I first want to highlight the book’s historiographical contributions, which reshape conventional assumptions about political participation and the relationship between law and politics in the first half of the nineteenth century. Then I want to step back and consider broader implications that the analysis raises, but that Masur does not develop as fully, with an invitation for her to engage with these issues in her response. 

While building on an important, growing body scholarship that foregrounds African Americans’ political activism between the Revolution and the Civil War, Masur adds an important, new dimension to this story. As she shows, white Americans allied with African Americans to build a successful movement that placed civil rights and racial equality at the center of political debate at this time. The timing is crucial here. In conventional narratives, it is assumed that few white Americans, even those who supported the abolition of slavery, questioned racial inequality—or if they did, they did not organize in opposition to it. Such efforts would only come later, in the aftermath of the Confederacy’s defeat in the Civil War. Even then, support would be short-lived, based as much in a desire to punish white Confederates as it was in a principled commitment to elevate the legal status of African Americans. Masur shows that opposition to racial inequality had much deeper roots than previously thought. Activists not only saw immediate results within free states in the decades preceding the Civil War, but also shaped federal policy afterwards. 

Why has this movement been forgotten?  One reason is that we have been looking in the wrong places, namely the federal level, where legal and political historians have tended to focus their analyses—at least until recently. Slavery, not racial equality, dominated debate at the federal level. Questions about racial equality appeared less often for good reason. Within the federal system, as it was defined in first half of the nineteenth century, the federal government’s reach did not extend to such issues in as direct a way as was the case with slavery. It was the states that had purview over racially based restrictions, given their jurisdiction over the wide range of issues affecting the public order and the legal status of individuals. Joining an emerging body of work that has complicated our understanding of the new republic’s governing dynamics, Masur follows the jurisdictional lines of the federal system and shifts the focus from the federal government to states, where conflicts over racial restrictions were both enacted and challenged. The evidence of this first civil rights movement had been hiding in plain sight. 

The conceptual originality of Masur’s work, however, does not end there. The evidence of this civil right movement may have been hiding in plain sight, but the materials did not present themselves as obviously political. Nor did all the various pieces of the puzzle even seem related, scattered as they were across time and space. Putting events in Ohio together with those in Massachusetts and New York is not exactly standard methodological procedure in the world of nineteenth-century history. What makes the work so brilliant is Masur’s ability to connect seemingly unrelated events in different states: from the institution of racial restrictions through poor laws to state campaigns against those restrictions to, ultimately, the push to change the entire balance of power in the federal system so as to override state restrictions.

Masur sees those connections because she brings the insights of social history and legal history to political history. Here, again, the conventional focus on the federal level has obscured the variety of means people used to influence law and politics in this period. Access to government at all levels did not depend on the vote—although the vote clearly helped. State and local governments, moreover, were far more accessible and responsive to those without the franchise than the federal government. Within states, as Masur shows, activists spearheaded publicity campaigns to highlight the injustice of racial restrictions and to keep those issues in the public eye. Then they advanced policies through the laborious work involved in changing hearts and minds: meeting, coalition-building, lobbying, and politicking. In the process, Masur separates political organization from the vote. As she shows, political organization aimed to shift votes, but it was not limited to those who could vote. Those efforts, which moved forward at a glacial pace, were not as splashy or as visible as the final tallies in elections or legislative votes. But they were what transformed the political debate over time. 

Law was as crucial to these efforts as politics. As Masur argues, activists situated the case for political change in legal arguments derived from elements of the U.S. Constitution and worked within the institutional bounds of the federal system. At the same time, they felt confident weighing in with their own interpretations, because they did not see law as an arena walled off from politics or an arcane body of knowledge controlled by professionals. To the contrary, they treated law and politics as inseparable: law infused political debate and determined its direction. By extension, the constitutional order that we have today rests on the vision of ordinary Americans in the past. The nation’s political leaders enacted the Fourteenth Amendment and the other changes to the federal system during Reconstruction. But they did not author the ideas behind those legal changes. The credit goes to the activists in Until Justice Be Done, many of whom did not have the rights thought necessary for legal access, let alone political participation. 

Until Justice Be Done has particular resonance today. It is a story of heroism and hope: of a biracial movement, built brick by brick, which successfully addressed deeply rooted racial inequalities and changed the course of the country. The parallels to the present—movements advocating racial equality and challenging police powers—are difficult to ignore. Those parallels, however, may overwhelm other lessons embedded within this piece of the past, namely the way that this first civil rights movement continues to shape the legal framing of racial inequality. This first civil rights movement identified rights as the solution to racial inequality, creating a relationship between the two that persists to this day. The connection is such that the term “civil rights”—however they are defined—has become synonymous with “racial equality.” Even Masur uses the two terms interchangeably. The first civil rights movement also pit rights against police powers, which figure as the means of restricting rights and, hence, the barrier to racial equality. The legal present is still tethered to the legal past, even as activists reach for structural solutions that move beyond the affirmation of civil rights:  police powers still figure as the problem and rights still figure as the solution. 

It is not that easy, as Until Justice Be Done also suggests. Actually, states’ use of police powers shaped both sides of the debate in this first civil rights movement in ways that elevated rights as the best means of achieving racial equality. Of particular relevance at the time were poor laws, which gave local jurisdictions extensive authority over all residents, particularly those seen as likely to create disorder or slip into indigence. The usual targets had been the working poor who fell on hard times. But in the nineteenth-century United States, white supremacists repurposed those laws to target free Blacks, who were defined as potentially disorderly and indigent because of their race and, therefore, subject to regulation, including restrictions on their rights, before they actually did anything disorderly or became indigent. The logic folded white supremacy into the definition of the public order, which then shaped opposition to the resulting restrictions on free Blacks. Poor laws linked questions about individual status to questions about the public order, giving states the authority to restrict individuals’ rights in the name of the public good. Given that legal framing, the solution was to strengthen protections for individual rights and then use them to blunt police powers. 

State police powers, however, were about more than racial restrictions. Traditionally, police powers also were used to reign in abuses of power, and people in the nineteenth century continued to expect that they would be applied in that way. The results altered the dynamics of power in important ways, bringing government authority to bear on a wide range of questions touching on public health, safety, and welfare, often at the instigation of marginalized people. Restrictions on rights take on a different valence in that context: when they involved a husband who beat his wife and gambled away her earnings; or a property owner who let his pigs destroy kitchen gardens that his neighbors depended on for sustenance; or a gang of white men who terrorized a free Black man out alone late at night. 

This other side of police powers is why activists in the late-nineteenth and early twentieth centuries tried to mobilize them to deal with structural inequalities in the economy. Police powers could override the rights of businesses and corporations, which were ultimately recognized as individuals within the bounds of the Fourteenth Amendment, in order to pass legislation that limited hours, raised wages, and addressed unsafe working conditions. Those efforts, however, also foundered in the rights/police powers equation, as the federal judiciary elevated the rights of business owners over state police powers to protect workers. From this perspective, rights became the problem that state police powers failed to resolve. 

The emphasis on rights mattered enormously, as Until Justice Be Done shows. Given the importance of rights in our legal system, life without them was difficult and uncertain. They enabled free movement across local and state jurisdictions. They enabled people to choose where they could live. They made it possible to own, accumulate, and exchange property. But rights gave power to individuals to participate in the existing, social order, which was tilted toward the interests of those with property and power. They could not dismantle those differentials in wealth and power, because they also protected wealth and power. In fact, rights could amplify structural inequalities by obscuring power differentials and creating a false equivalence among individuals of vastly different circumstances:  equal rights made unequal people seem equal. Rights also individualized problems that were beyond the power of individuals to rectify. Individuals were supposed to make their own way, with rights. If they failed, then the fault lay with them. 

State police powers, by contrast, could redefine the basic dynamics of that social order, by altering the power relationships that rights protected. It all depends on how the public order was—and is—defined. In the decades following the Revolution, those who wished to uphold white supremacy captured those powers and defined the public order in racially exclusive terms. Given the context in which they worked, that made sense: it made sense to use rights to address racial inequalities upheld by state police powers. But police powers could be harnessed and directed toward other ends as well. 

The choices of the first civil rights movement, which were made in a particular context, have become normalized over time. This first step toward racial equality now shapes the way we define racial equality and imagine solutions, focusing attention on individuals and their rights, rather than taking the next step to address the structural inequalities of the public order in which individuals exercise their rights. As Masur’s compelling book reminds us, the options not taken in nineteenth century still remain open to us today. In fact, what people in the nineteenth century accomplished should motivate us to think just as creatively and ambitiously now. 

Laura F. Edwards is Class of 1921 Bicentennial Professor in the History of American Law and Liberty, History Department, Princeton University. You can reach her by e-mail at 

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