Balkinization: Thinking Forward: Civil Rights Before the Fourteenth Amendment

Thinking Forward: Civil Rights Before the Fourteenth Amendment

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).

Allison Brownell Tirres

Kate Masur’s terrific new book Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction does many important things, among them paint a vivid portrait of a dynamic, multifaceted and multiracial movement for the end of slavery and for the equal rights of all people, regardless of race. Masur has done extraordinary work in the archives, revealing networks of activism and advocacy across the country, from key urban areas like New York and Philadelphia to far-flung settlements in the states that emerged from the Northwest Territory. She traces the movement through newspapers, pamphlets, petitions, diaries, court documents, and legislative records. Some of the characters and turning points of this history will be familiar to readers with some knowledge of antebellum history (see, e.g., Frederick Douglass, Dred Scott and the Missouri Compromise), but many will not. The book decenters the more familiar story of the abolition movement and the lead up to Civil War. New stories rise to prominence, such as the struggle over the rights of free Black sailors and the use of the petitioning power to force lawmakers to consider expanding rights. This deeply researched work reveals the failures, accomplishments and contradictions of this effort over several decades, providing a rich description of people on the move, the constant struggles they faced and the adaptations they made along the way.

Those who teach Constitutional Law will find much to learn here. By the time you reach the last chapter, which artfully and succinctly explains the drafting and passage of the Civil Rights Act of 1866 and the Fourteenth Amendment, you understand that many of those who were creating, amending, and arguing over the particular language used therein were not new to the struggle but had been engaged for decades in these particular fights. The inclusion of the term “state action” in the Fourteenth Amendment takes on new meaning when seen in light of activists’ long, protracted struggle to counter oppressive state laws. Legislators and their advisors were informed by decades of practical experience in the north and the west; they were not just reacting to the immediate problems posted by southern states in the aftermath of the war. As Masur writes, the choice to focus on state action is more understandable “if we think our way forward from the antebellum period, rather than backward from later moments.” Once arriving at this chapter, you also understand how these important pieces of legislative action were both familiar and radical, at the same time. The drafters utilized ideas that had been in circulation for years, thanks to the work of the movement, but they tackled the problem of unfettered state power in an unprecedented way.
As a historian of immigration and citizenship, I am grateful for how Masur carefully contextualizes her actors’ use of terms like “citizen,” “inhabitant,” and “person.” The relationship between the rights of Black Americans and noncitizens is not central to her story, but it emerges at key moments as she explains the debates and the legislation that ultimately emerged. Prior scholarship sometimes too flippantly assumes that many of these terms were completely interchangeable, or that the failure to be more specific in choice of words reflected a general ignorance of the differences between these terms. To the contrary, these terms often had very specific meanings that could change depending on context. Masur is careful to point this out, for example when she walks the reader through the shifts in the drafting of the Civil Rights Act of 1866 from “inhabitant” to “citizen.” She also shows how individuals were aware of the nuances in the treatment of these different categories. She includes fascinating discussions of how activists used examples of laws that discriminated against noncitizens – such as those that prohibited aliens from captaining ships or buying land – to argue for expanded rights for Black Americans, or to argue that Black Americans were, in fact, already citizens (despite what Justice Taney might say).

I would be interested to hear more from Professor Masur on how she thinks about two of the major themes that run throughout the book. The first has to do with the efficacy of state laws. I was struck by the shifting, inconsistent nature of the various discriminatory laws passed by the states in response to Black migration (or the fear of Black migration). At times, the so-called Black laws – like the racist testimony law in Ohio and other states, which barred African Americans from testifying against whites, or the prohibitions in several states on the legal settlement of Black Americans – were devastating in their effect, making it impossible for persons of color to enforce contracts, engage in commerce, or find a safe place to live. At other times in the narrative, those same laws seem to be largely defunct and unenforced, or at least underenforced. They do not seem to serve as an effective means of forestalling Black migration over time. Masur also shows how, even in places where the laws were mostly unenforced, they could be mobilized by whites who used them to threaten, harass and torment their Black neighbors. I was not fully clear on the reasons why the laws would be out of favor or practice in some places and times and not others. I wonder if Masur has further thoughts about what particular conditions made these repressive regimes more or less operative. I also would like to know more about the strategies and networks of communication that free Blacks used to avoid the laws’ application.

Another major theme of the book is the contest over national identity. Who was more American, those supporting the “slave power” or those arguing for abolition and equal rights for all? In speeches, newspaper editorials, pamphlets, and petitions, Black activists and white supporters argued that racial oppression was not only deeply immoral but also completely at odds with the true meaning of America. They used founding documents as evidence, particularly the Declaration of Independence and the Constitution’s privileges and immunities clause. In retrospect, this was both a conservative and a revolutionary move: to define the nation, at its roots, as dedicated to equality for all rather than oppression for most. Taking this claim seriously puts these civil rights activists in a different light; rather than seeing them as trying to create a new country, we see them as helping us be more of what we were meant to be all along. (This point powerfully resonates with a comment I heard Professor Eddie Glaude, Jr., give recently, that we should think of the repressive reactions of white supremacists in the 1950s (and today) not as “backlash” but rather as “betrayal.” Doing so changes the way we think about the work that both sides are doing and its relationship to the founding.) I wonder if these appeals to American identity and the founding documents, as a rhetorical strategy, were ultimately more persuasive than arguments focused on morality and the sinfulness of slavery. I also wonder whether there is something that activists in the movement lost by constraining themselves in this way, i.e., by assuming that they had to find proof in the revolutionary era.

To be sure, the movement was not monolithic by any means. There were a multiplicity of strategies and approaches taken to the question of abolition and equal rights. But Masur convincingly demonstrates that these diverse individuals and groups across the country developed and shared ideals and ideas, appealed to an ever-widening group of supporters, gained steady momentum, and eventually made historic change. It should, indeed, be thought of as our first civil rights movement. Masur’s work helps us give this movement the emphasis it is due in our history books and law classes.

Allison Brownell Tirres is Associate Dean of Academic Affairs & Strategic Initiatives and Associate Professor at DePaul University College of Law. You can reach her by email at atirres at depaul.edu.

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