Thursday, July 01, 2021

Response to the Symposium on Until Justice Be Done

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).

Kate Masur

I begin this response with thanks, first to Jack Balkin and Balkinization for hosting this forum, and above all to the eight scholars who took time to read and engage with Until Justice Be Done. Each one had already influenced my own perspectives on history and law, and I so appreciate their attention and insights.

I’m grateful that my work seems to have spoken to readers in ways that I hoped it would. My primary aim was to write a book that illuminated antebellum struggles over racial equality and thereby cast the 1866 Civil Rights Act and the Reconstruction amendments in a new light. This meant shifting from the conventional antebellum focus on the politics of slavery and antislavery to a focus on race, rights, and citizenship. As William Novak writes, “the crisis of slavery frames this whole book,” but my emphasis is on “the distinctive rights claims of free African Americans.” As Sandy Levinson and others also note, I departed from the prevailing tendency to focus on the federal level and emphasized, instead, the state and local arenas, where jurisdiction over questions of individual status and rights largely resided. When we turn to those areas, we see in new ways how Black Americans actively participated in framing and advancing the conversation about race, governance, and law. We also see the essential role played by political coalitions in which people with varying motivations and perspectives united behind the principle of racial equality in what were then considered “civil rights.”

A different cast of characters comes into view – not necessarily the elite theorists, judges, or lawmakers who are most often the subjects of scholarship in constitutional law, but everyday people who took part in a broad-based movement that insisted that racist laws had no place in American life. As Gerard Magliocca and several others observe, this approach also entails looking well beyond the courts and even beyond voting as a means of fomenting political change. The judicial system was of limited use to reformers when state courts readily deferred to state legislatures, and when federal jurisdiction over such matters was extremely limited. Participants in the first civil rights movement therefore turned to petitioning state legislatures and using the press to draw attention to abuses. Black activists often gathered in their own organizations and published addresses to white people, calling on them to do better. I’m not the first historian to write about people like Ohioans John Malvin and David Jenkins, or the Illinoisans John and Mary Richardson Jones. But I am happy to join in elevating these individuals – and their ideas, their allies, and the causes for which they fought – and helping thereby readers understand the diversity and richness of nineteenth-century Black thought and action.

My aim was also to provide an account of how it was that, by 1860, the free states had become home to a powerful political party — the Republicans — whose leadership was willing to fight for the principle of racial equality. Fifty-one years ago, Eric Foner wrote that by 1859, Republicans generally agreed that free Black people “were human beings and citizens of the United States, entitled to the natural rights of humanity and to such civil rights as would protect the natural rights of life, liberty, and property.” Yet, few historians seemed to have noticed that this analysis contradicted the widespread view, found in the work of Leon Litwack and others, that white northerners were unrelentingly racist, even if many opposed the spread of slavery. I wanted to make sense of this contradiction in the literature and to bridge conventional boundaries of periodization to explain how prewar northern politics shaped Republican policies during the Civil War and Reconstruction.  

My interlocutors’ commentaries were generous and wide-ranging, and it’s impossible to do them all justice here, so I’ve picked out a few themes to highlight below: periodization, rights and police powers, Section One of the Fourteenth Amendment, and how change happens.

I appreciate Kunal Parker’s reflections on how the subtitle’s phrase, “America’s First Civil Rights Movement,” implies a kind of teleology from the “first” to the “second,” more familiar movement of the 1950s and 1960s, a comment he places in the context of his larger interest in choices we make when “setting things in relation to one another.” I would add that if the “first” civil rights movement occurred in the antebellum period, then the second ensued during Reconstruction, and the conventional “civil rights movement” would really be the third. But there are other ways of describing similar chronologies. A new book by historian Van Gosse is entitled The First Reconstruction: Black Politics in America from the Revolution to the Civil War. My sense is that Gosse and I, together with other historians, are working toward a long history of this country’s struggles to come to grips with the legacies of slavery. I begin the book by discussing how northerners contended with implications of abolishing slavery at the state level because in my view the unifying theme is not really “civil rights” as such, but rather how people work out questions of race, equality, and citizenship when race-based slavery is abolished.

I also agree with Parker that it’s important to recognize the continuing power and importance of slavery during the period I write about. African Americans living in free states surely could not escape slavery’s tentacles. This was most obvious in questions associated with “fugitive slaves” and kidnapping, a critical and terrifying set of problems for free Black people. But the particular constraints imposed by racial animus in the free states themselves were also very real. Living in places where slavery had been outlawed, the people I write about devoted considerable energy to fighting for the kinds of things that Black people in postslavery societies have fought for everywhere, including equal access to property, the courts, and public education, justice in law enforcement, and all the perquisites of citizenship. In my view, these struggles were well worth examining in their own right and for how they shaped federal policy in the 1860s.

As the book indicates, I also became very interested in how Americans drew on the concept of “police powers” to justify anti-black policies. As many readers will be aware, the “police powers” are the vast array of powers that governments (in this case, typically state governments) may wield in the name of protecting the public welfare. As Novak and others have shown, governments have justified all manner of restrictions on individual rights with recourse to police powers – and they still do. In my book, state legislatures regularly used police-powers arguments to defend the existence and enforcement of anti-black laws. Yet, as Laura Edwards reminds us, police-powers arguments may also be used in ways that help protect vulnerable people or mitigate oppression, as when state minimum wage laws restrict the rights of business owners to pay whatever they choose, or when state governments adopt policies requiring masks and limiting public gatherings in an effort to slow the spread of a deadly virus.

The activists I write about were not critical of all exercises of police powers. Rather, they aimed, as Novak writes, to “produc[e] an anti-discrimination limitation on state police power.” The central idea that held the movement together was that however expansive the police powers of the states might be, states must not subject people to special regulations based on race. Activists were not just theorizing about this. They were trying to get people elected who would put the idea into practice. That is, they hoped to change how the state government defined the public good and wielded the police power.

It was not, therefore, a binary question of rights vs. police powers. Racial equality activists’ position could be framed in terms of rights – for example, they argued that a person’s “right” to move from state to state, or to testify in court, should not be limited because of their race. But it could also be framed in terms of police powers – for example, they argued that it was best for the public welfare to repeal racially discriminatory laws. At the 1847 Illinois constitutional convention, for example, some argued against a Black exclusion measure by saying it would discourage industrious settlers from moving into the state, while others suggested that such a law would violate the rights of free Black people under the Constitution’s Privileges and Immunities Clause (pp. 229-30 of Until Justice Be Done). Those who demanded repeal of anti-black laws regularly made both kinds of arguments.

Having spent a lot of time thinking about Reconstruction, I began this project with a strong interest in how antebellum politics shaped the Republicans who took power in the 1860s and, in particular, how antebellum struggles over race and equality shaped the first federal civil rights measures: the Civil Rights Act of 1866 and the Fourteenth Amendment. Although Mark Graber suggests that my attention to Section One of the Fourteenth Amendment is misplaced, his description of “constitutional politics” helps explain why I thought it was important. Graber alleges that the Fourteenth Amendment was not the culmination of the struggles described in the book. “Most Republicans,” he says, believed the Thirteenth Amendment combined with the Civil Rights Act of 1866 would accomplish their goal of putting federal power behind the principle of racial equality. John Bingham was indeed an outlier among Republicans for believing that the Civil Rights Act was unconstitutional when passed, and Bingham of course had a great deal to do with creating Section One. As Graber implies and others have observed, we might have been better off without Section One, since the proposition that the Thirteenth Amendment barred not only slavery itself but also its “badges and incidents” would have provided a much broader basis for anti-racist legislation and enforcement than Section One’s cramped “state action” language.

The reality, however, is that we did end up with Section One of the Fourteenth Amendment, and there’s no use wishing it away, not least because of its importance for rights claims in the twentieth and twenty-first centuries. In addition, though, Section One represents a victory of precisely the kind of “constitutional politics” that Graber extols. Graber observes that participants in the first civil rights movement “sought to manipulate existing constitutional texts, legal precedents, and governing institutions so as to make their constitutional vision the official law of the land or at least of their home state.” This is exactly how I see it. The more I considered Section One, the more I realized that its two distinct strands – one concerning citizenship and concerning personhood – quite precisely reflected two distinct but related strands of constitutional politicking for racial equality during the antebellum decades. 

On the one hand, since at least the early 1820s and the congressional debate about anti-black provisions in the Missouri constitution, people made claims for racial equality in citizenship by drawing on the Constitution’s Privileges and Immunities Clause. On the other, advocates claimed racial equality not as citizens but as persons in the many situations in which it didn’t make sense to connect their claims to the Privileges and Immunities Clause. That is, participants in the movement regularly claimed that racist laws should be repealed, or that Black people were entitled to the same rights as whites, not because they were citizens but because they were persons, and because race-based discrimination was wrong.  As Allison Tirres notes, these differences mattered. Citizenship implied belonging in some political entity while personhood did not, and distinctions in language impinged differently not just on native-born white people and Black people, but also on Native Americans, European immigrants, and immigrants from China. Section One of the Fourteenth Amendment invokes the Privileges and Immunities Clause in its ban on the denial of the privileges or immunities of citizens, and it invokes the language of personhood in its affirmation that states may not deny to persons equal protection or due process of law.

Citizenship and personhood seem to co-exist in Section One because they were both important components of the highly engaged, energized constitutional politics that characterized the preceding decades. The language reflects a belt-and-suspenders approach that sought to address both strands – and also affirm birthright citizenship – all at once. Michael Les Benedict points out that the promises of “protection” for all persons (and citizens) stood to benefit not only Black people facing racial discrimination but also white dissenters and minorities of other kinds. Michael Kent Curtis and others have made this point, connecting Section One with the history of anti-abolitionist mobbing and the suppression of abolitionist speech in the slave states, as well as violence against white Unionists in the former Confederacy. It’s also the case that the Supreme Court’s choice in the 1870s and 1880s to, as Benedict writes, “limit Congress’s power to offsetting state-mandated discriminations and crimes clearly motivated by race” reflected not only a narrow interpretation of the amendments but also the arrival of the anti-discrimination principle in the political mainstream. So did laws barring racial discrimination in public accommodations passed by northern and western states in the last third of the nineteenth-century. As I make clear in the book, however, most of the people whom I write about did not advance what we would call an intersectional analysis. Most who called for repeal of explicitly racist laws did not also advocate sex equality or demand repeal of police laws that infringed on the civil rights of paupers and vagrants. Nor did they have a clairvoyant sense of how much force would be needed to suppress white violent supremacy.

I appreciated Edwards’ and Graber’s comments on how to advance a political agenda in which the well-being of all people is prioritized. Although they come from different methodological traditions, I think they’re suggesting something rather similar. Edwards highlights the potential of “police powers” to overturn inequitable structures (in contrast to claims of “rights,” which, she writes, tend to leave oppressive structures in place and can create “a false equivalence among individuals of vastly different circumstances”). But, as Edwards also indicates, to get governments to put their police powers in the service of reducing structural inequalities, you need to elect people who are committed to defining the public good in a way that emphasizes everyone’s well-being. I read Graber as calling for something similar, favoring a brawling “constitutional politics” over “adjudication or constitutional reform” and admiring nineteenth-century Republicans who sought power and then used it fearlessly. As Benedict also reminds us, that was the approach favored by participants in the first civil rights movement. When William Lloyd Garrison declared in 1865 that the abolitionists’ work was done, Frederick Douglass cited the racist laws of the free North and countered: “while the black man is confronted in the legislation of the South by the word ‘white,’ our work as Abolitionists, as I conceive it, is not done.”

I would add that a crucial component of changing policy priorities is building coalitions. Part of what I hoped to emphasize in the book was how an array of people, who arrived at the cause from different positions and for different reasons, in various ways came to support the principle of racial equality in civil rights. Indeed, as Parker writes, the movement’s participants “pointed in radically different directions.” Among the members of the coalition were Black activists who demanded racial equality in “political rights” – the rights to vote and hold office. Many of their white allies in the movement were not prepared to go that far. Still it was possible to form a loose coalition whose members shared a baseline view that free Black people should not be subjected to the kinds of legalized discrimination and humiliation that they currently experienced. This expansive group of people subscribed to the set of ideas about basic racial equality that characterized the Republican consensus on the eve of the Civil War. And this, in itself, was a momentous departure. No major political party had stood for such ideas before. On the other side of the equation in northern politics were Stephen Douglas and the Democrats, whose general view was, in Douglas’s words, that the United States was “made by the white man, for the benefit of the white man, to be administered by white men, in such manner as they should determine.”

A strand of political and constitutional thought continues to hold that the Founding bestowed on the United States everything it needed to become a multiracial democracy. In this view, the Reconstruction amendments represented the continued unfolding of a cluster of great ideas that were always somehow destined to be made real in American life. For me, the thoughtful commentary presented here helps reinforce the view that ideas do not advance into policy on their own; people make that happen through contests for power. After all, the world is full of great ideas that remain untested. It was only through the hard work of popular mobilization and coalition building, a certain kind of luck, and the horrific violence of war, that the Republican vision triumphed for a time and, in the process, gave shape to future struggles.

Kate Masur is Associate Professor of History at Northwestern University. You can reach her by e-mail at kmasur at

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