Wednesday, June 02, 2021

All Civil Rights Movements Are Local

Gerard N. Magliocca

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).

Kate Masur’s stirring account of the fight for racial equality in the ante-bellum period is a powerful reminder that national politics is an outgrowth of state politics. There is a tendency in constitutional scholarship to focus only on what occurs at the federal level or on the rhetoric of leaders after they reach federal office. Most politicians and judges in our history, though, began their careers in local or state government and developed their basic philosophy in that setting. This was true for most anti-slavery activists, and Professor Masur deftly shows how they learned the hard lessons of coalition building in states such as Ohio and Illinois as they sought to repeal laws that discriminated against Blacks. From those battles, men like John Bingham, Salmon P. Chase, and Abraham Lincoln forged a new vocabulary of liberty and equality that centered on the Privileges and Immunities Clause of Article IV, which in Bingham’s hands became the Privileges or Immunities Clause of the Fourteenth Amendment. 

Professor Masur’s focus on state politics reveals the critical role that free Blacks played in what she calls “America’s first civil rights movement.” At the national level, marginalized groups are greatly outnumbered and typically invisible. But there will always be some local communities where those groups are influential due to their larger relative size or to their organization, even when they cannot vote. Once the spotlight turns to those byways, the active work of free Blacks in fighting for their freedom becomes clear. Indeed, the book’s greatest contribution may be its emphasis on the role that free Blacks other than Frederick Douglas played during this era and the recounting of some of their individual stories. I was especially interested in the discussion of the pushback by Black activists against the agenda of the American Colonization Society, which advocated the emigration of free Blacks to Liberia and was a popular cause among white elites. While colonization remained a viable political option into the 1860s, opposition from the very people who were its supposed beneficiaries helped take the shine off of the idea and opened up space for more radical and fair solutions. 

One of the chief tools that free Blacks used in the states was the right of petition, which is a lost tradition in constitutional conversation that Masur brings to life. Today physical protests are the paradigmatic way for the disenfranchised to make their views heard. While that tradition can be traced back to the Boston Tea Party, the civil rights movement led by Martin Luther King Jr. made that mode of expression sacrosanct. In the nineteenth century, though, petition drives were much easier to organize on a large scale and were therefore the preferred method of protest. Petitions, unlike voting or some other forms of political participation, were open to anyone, including women and free Blacks. Legislatures at the time followed a norm that petitions must be taken seriously, which meant that the petitions for racial justice that flooded in could not be easily dismissed. This explains why the “gag rule” imposed against antislavery petitions by the House of Representatives in the 1830s caused such consternation and backfired on slavery’s supporters. 

Finally, Professor Masur’s attention to state politics draws out the underappreciated link between state law and racial injustice. The beginning and the end of Until Justice Be Done stress how the English poor laws, transplanted to the colonies, were used to justify discrimination. Usually that involved restricting the movement of free Blacks, excluding them entirely, or imposing legal disabilities on them with the claim that they would be a drain on the community. The Constitution omitted from the Privileges and Immunities Clause the exclusion for “paupers, vagabonds, and fugitives from justice” that was in the companion clause in the Articles of Confederation. Nevertheless, until the antislavery reading of the Privileges and Immunities Clause came along state law regularly treated Black citizens differently based on their economic circumstances as if the exceptions in the Articles were still there. Likewise, even after the Fourteenth Amendment was ratified the states continued to justify these distinctions through vagrancy (another inheritance from England’s poor laws), as Risa Goluboff demonstrated in her pathbreaking book Vagrant Nation. 

Book reviews are to some extent an exercise in asking why an author wrote her book instead of some other book. In that spirit, let me point our first that Pennsylvania gets the short end of the stick as compared to other states. For example, Thaddeus Stevens, who spent his adult life in Pennsylvania, was also schooled in politics through local and state office there long before he arrived in Congress. Professor Masur doesn’t have much to say about Stevens, but in fairness no book can adequately cover the politics of every Northern state. Another obvious question is why the coalition that Masur talks about was so unsuccessful after Reconstruction; a topic that she addresses only briefly. One thought is that the very local communities that sustained the first civil rights movements were disrupted by the acceleration of the Industrial Revolution after the Civil War. This economic disruption may have caused those communities to turn inward and concentrate more on their material self-interest rather than on racial equality. Freedom flows from optimism and confidence, and from a local or rural perspective confidence was scarce in the late nineteenth century.

In sum, Until Justice Be Done is a wonderful addition to the civil rights literature. Professor Masur’s book also suggests that local and state government is a better forum for egalitarian reform, which is a timely lesson in a period of partisan deadlock in Washington DC.

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