Ten Arguments in The Radical Fund (Part I)

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

John Fabian Witt 

Wow, what an amazing array of review posts Jack assembled!  A dozen accomplished figures have weighed in from the fields of civil liberties, Black freedom movements, labor, and philanthropy.  Their reviews identify some of the most important threads in the book, including a few that hadn’t been in my mind until reading the symposium posts. 

And there are many threads to pull.  In a story as long as The Radical Fund, all sorts of arguments emerge, and any number of themes develop.  The world of the Garland Fund offers one kind of answer to historians’ old question about what happened to the early twentieth-century Progressive Movement after the First World War.  The decade appears here not as a slide into a consumerist Jazz Age (or at least not only that), but as a period of interwar democratic crisis.  American progressives in exile (some chastened, some radicalized, and all of them changed) incubated new social formations that aimed to be adequate to the emerging challenges of mass production capitalism, the Great Migration, and a modern media landscape. 

For lawyers and students of American political development, the book uncovers new evidence on the roots of the famous NAACP litigation campaign.  It revises the origins story of the Wagner Act in labor-capital relations.  And it sets the advent of modern civil liberties alongside transformations in race and labor.  In The Radical Fund, the three pillars of mid-century liberalism come into view as part of a common if often fractious project.  The Switch in Time of 1937 at the Supreme Court becomes a culminating moment for social movements that had worked for two decades to remake the Constitution. 

It’s also a wild story. 

I am grateful that the savvy participants in this symposium have not let narrative momentum or a profusion of characters obscure the book’s analytic moves.  I am reassured that the arguments here weren’t so recessive as to be invisible.  But in any work of history this long, there is a risk that arguments get lost in the shuffle.  In this post and one to follow shortly I present a brisk, non-exhaustive guide to ten arguments embedded in the book, along with connections to the symposium posts.  Five here, five tomorrow.  In the future I may try to draw some of these arguments out of the book’s narrative underbrush and lay them bare in stand-alone articles or essays.  But each of them is imminent in the book as it is.    

The so-called “long civil rights movement” (LCRM) literature begun by Jacqueline Dowd Hall’s classic essay twenty years ago opens with a flawed historical premise, which in turn has led to a mistake in the literature that has followed.  In Hall’s account, our collective memory of the civil rights movement centers Brown v. Board of Education, and in doing so obscures the deep cross-race labor mobilizations visible in the 1930s and into the 1940s. Hall urged historians to see an LCRM in which Black and white social movements aimed to make a lasting change in American class structure.

The Radical Fund extends the LCRM, while revising and re-periodizing it.  The re-periodization moves its beginning back from the 1930s and the Popular Front period, where Hall had it, to the 1920s, when Black and white movements for labor and Black liberation began self-consciously working together on projects in and around what would become the modern civil rights and labor movement.  Check out the chapters on grants to Du Bois and James Weldon Johnson for their first studies of Black education in the South—grants that emphasized the value of education for organizing.  Or consider the way in which A. Philip Randolph’s porters union at the Pullman Car Company took root from the same soil and at the same time as the litigation campaign against Jim Crow.

The revision offered in The Radical Fund is that the litigation campaign against Jim Crow was a central strategy of the LCRM, not a rival to it. 

In a sense, the literature inaugurated by Hall makes the same mistake it identifies in the collective memory around Brown and the civil rights movement, only in reverse.  Enamored of the labor organizing and grass-roots advocacy of the world before Brown, it overlooks the social structure of the litigation campaign that mattered so much to those efforts.  The litigation campaign culminating in the Brown decision was part and parcel of the effort to launch a class-based strategy of social change in Jim Crow America.  The campaign emerged out of the heady LCRM ferment of the 1920s, where it arose as a leading candidate in the debate over mechanisms for cross-race organizing.  The legal attack on Jim Crow aimed self-consciously to create the conditions for labor organizing among Black workers by educating them and by giving them legal protections from violence.  It aimed, moreover, to channel financial resources in the form of state tax dollars into Black communities.  Economic questions and questions of power were at the heart of the matter. 

2. Interest Convergence Was a Feature Not a Bug

Ever since Derrick Bell’s influential 1980 article on civil rights litigation, critics of the Brown project on the left have characterized the 1954 decision as the product of way Bell called “interest convergence.”  Black civil rights, in this conception, advanced when happenstance and fortune aligned the interests of white Americans with the rights of Black communities.  It so happened, Bell wrote, that Cold War geostrategic imperatives and perhaps the interests of a new capitalist South pointed toward desegregation. 

The interest convergence idea, in Bell’s account, offers a moral critique of liberal self-conceit; gains for Black freedom were the result of moral insight or worthy righteousness, they were a product of new self-interest among some of the people who had been responsible for white supremacy in the first place.  But Bell’s thesis also conceives of interest convergence as a historical thesis.  The great civil rights transformation of the middle of the twentieth century emerges as a stroke of fortune, a result (as Mary Dudziak’s account proposes) of geo-political happenstance. 

The story of The Radical Fund is very different.  It offers interest convergence as strategy, not as accident.  For key figures like Du Bois, James Weldon Johnson, A. Philip Randolph, and Walter White, yoking white working class interests to those of Black communities was central to the self-conscious deployment of power in a country whose population was nearly 90% white. 

One is even tempted to wonder how else progress could have been made on the most morally imperative questions of the age.  Recall that the Reconstruction-era Republican Party’s great constitutional amendments were themselves powerfully motivated by party self-interest.  Recall that in the 1920s, a half century later, neither of the two major political parties offered Black Americans even a semblance of political clout.  The reappearance of convergence strategies in that moment was an act of high strategic genius, one that positioned Black freedom efforts to be able to take advantage of the opportunities World War Two and the Cold War occasioned. 

3. The Famous Margold Report Was About Power, not Rights

In 1931, a Harvard Law School-trained Jewish immigrant lawyer named Nathan Margold drew on the Garland Fund’s big grant to the NAACP to craft a report on the litigation campaign against Jim Crow contemplated by the grant.  In an older strain of the literature, Margold’s report figures as a first experiment in modern impact litigation.  Figures like Richard Kluger described it as the NAACP lawyers’ bible in the equal rights revolution of the 20^th century.  More recently, scholars have been less generous to the work of the white lawyer who himself quickly moved on to the New Deal to work in the Interior Department on Federal Indian law.  Megan Francis even calls the Margold Report “infamous,” perhaps for its overly sanguine embrace of integrationist strategies over equalization tactics.

From the vantage afforded by the Garland Fund, however, Margold’s efforts come into view not as integrationist, or at least not integrationist for integration’s sake, and certainly not focused narrowly on rights or formal equality, but instead as organized single-mindedly on the administration of power.  Debates over the litigation campaign’s theory of equality (integration versus equalization, formal equality versus substantive equality, etc etc.) have obscured the underlying struggle over how to design a program for the mobilization of power.

Margold was a student and protégé of Felix Frankfurter, who had spent the decade studying, writing, and teaching about the administration of power in government the leading administrative law authority of the era.  Frankfurter’s lessons struck home for Margold as a student.  And they were redoubled for him in the Southwest, where his lawyering for Native American tribes in 1929 and 1930 led him to the view that rights were of little use in the face of vicious and duplicitous administration.  Authority and administration were the questions of the day.  That idea, in turn, shaped the spirit of the 1931 report that bears his name and the litigation campaign it imagined. 

One last thought here: the literature (save Ken Mack’s important intervention) has overlooked how the Scottsboro episode of 1931 scrambled the carefully designed technocratic Margold plan of earlier that same year and forced mass politics and public opinion onto the agenda of the NAACP lawyers who followed him. 

4. The Early ACLU Hid Its Positive Liberty Ideas in Its Philanthropic Wing

Histories of the ACLU either treat it as an organization dedicated to the negative liberty of speakers to freedom from state repression (Walker) or as an organization fleetingly committed to labor radicalism that tipped rapidly toward a negative liberty posture (Weinrib, Kessler).  This version of the civil liberties story has aligned more or less smoothly with the long-standing idea that modern free speech law was born in an age when pragmatism emphasized the epistemological virtue of testing ideas in the laboratory of the marketplace (Menand, Healy), and also with a newer and important story about the failure of 20^th-century free speech to attend to the concomitant rise of government secrecy (Lebovic). 

Each of these variants in the literature conceives of the civil liberties project by the mid 1920s as inadequately attentive to the importance of power and resources in constructing an information environment conducive to democratic deliberation.  Rights alone were insufficient, goes the critique.

Right enough!  But adding the Garland Fund story to the mix helps explain an otherwise puzzling conundrum about these storylines.  The generation coming out of World War One was under no false impression about the relationship between an ostensibly free market in ideas and robust democratic deliberation.  This was a generation born of wartime propaganda battles and their postwar aftershocks.  It was the age of Walter Lippmann’s despairing reflections about liberty and the news, the era of Upton Sinclair’s best-selling accounts of capitalism’s corrupting consequences for media.  Both Lippmann and Sinclair show up in the Garland Fund, and it’s no coincidence.

The Fund stood alongside the ACLU as the civil libertarians’ affirmative wing.  Even as Baldwin championed free speech rights for everyone, he presided over a positive project of philanthropic finance for dissenting speech.  The lion’s share of the Garland Fund’s money went to one or another version of its communications campaign: publishing and research in ideas that would not have found outlets in the market, including film, radio, magazines, newspapers, a publishing house, and a news syndication service. 

In an age of skepticism about the production of truth in the market, the Garland Fund was the vehicle by which Baldwin and others in the civil liberties project steadied their campaign for negative liberty’s freedoms. 

Were they right to imagine that private resources could compensate for the corrosive effects of market incentives on truth in the information ecosystem?  There’s good reason to think the answer was no.  But either way, the men and women who birthed modern free speech were already grappling with the problem that has surged back into a view a century later. 

5. The Wagner Act’s Hard Tactical Choices Were Earned

What to make of the book’s contribution to the third pillar of mid-century legal liberalism?  For a generation, strongly argued strands in the literature have found the roots of labor’s decay in New Deal labor law.  Since at least Katherine van Wetzel Stone, Karl Klare, Chris Tomlins and others, basic architectural choices like exclusive representation and majority rule in the collective bargaining process helped to produce an ossified, over-bureaucratized labor movement leadership.

Scholars have long located the origins of those design choices in the debates and organizing efforts of the 1920s, and in particular in the fights against company unions.  The Garland Fund is a window onto the world of labor intellectuals and organizers around Sidney Hillman, A.J. Muste, and the Brookwood Labor College in which the key 1920s debates took place.  The Fund helped to sponsor the intellectual ferment around the legal design of collective bargaining and labor arbitration.  Its financial support for “legal affirmative action” for labor in the mid-1920s helped to create a world of New Deal labor law insiders like Donald Richberg, William Leiserson, Leo Wolman, Jett Lauck, Stuart Chase, and others.  As Willy Forbath notes in his contribution here, the Fund’s labor law group balanced its theory of labor and the state on a knife’s edge.  They led a movement that relied indispensably on the hot passions of its engaged membership.  And at the same time, they designed a cool technocratic architecture to capture its momentum and preserve it in periods between organizing drives.

As to where inspiration for the architectural dimensions of the labor law project derived, Laura Weinrib’s contribution to this symposium usefully suggests that the Fund’s internal infighting between left and right factions helped illuminate for key Fund actors the importance of centralized control and the vulnerability of decentralized institutional structures.  Fending off the Communist Party left at the Fund, to put it plainly, seems to have taught influential figures in the Fund’s world the value of arrangements like exclusive representation and majority rule. 

One last note in this respect.  It’s also worth noting that the Garland Fund world reveals hitherto underappreciated connections between the projects of the Fund’s labor law intellectuals, on the one hand, and the organizing of Black workers, on the other.  When A. Philip Randolph approached the Fund in 1925 for assistance with the fledgling Brotherhood of Sleeping Car Porters campaign, he connected not only to money, but also to the economists, accountants, and consultants of the emerging industrial union world.  Randolph’s efforts to gain recognition for the Brotherhood from the Railway Labor Board both drew from and inspired the labor lawyers and intellectuals if the Fund world.  When the Wagner Act and its analogous amendments to the Railway Labor Act remade the law of collective bargaining, Randolph finally won a contract from the Pullman Car Company.  New Deal labor law went both ways for Black workers. 

John Fabian Witt is the Duffy Class of 1960 Professor of Law at Yale Law School and a Professor of History at Yale University. You can reach him by e-mail at john.witt@yale.edu.