Rethinking Civil Rights Lawyering and Politics in the Era before Brown
Mack, Kenneth W., The Yale Law Journal
ARTICLE CONTENTS INTRODUCTION I. THE MAKING OF A LEGAL LIBERAL INTERPRETATION II. SETTING THE STAGE: LOCHNER, THE POLICE POWER, AND RACE UPLIFT A. Civil Rights Lawyers and the Lochner Tradition B. Civil Rights Lawyers and the Police Power C. The Voluntarist Alternative D. Conclusion: The Emergence of Race Uplift III. CIVIL RIGHTS LAWYERING IN THE ERA OF MIGRATION: VOLUNTARISM, LEGALISM, AND RACE UPLIFT A. Voluntarism, Anti-Legalism, and Equal Citizenship B. Legalism, Pluralism, and Equal Citizenship C. Citizenship Claims and Public Opinion D. Conclusion IV. SOCIAL ENGINEERING IN PRACTICE: AN ALTERNATIVE HISTORY OF THE DEPRESSION ERA A. Three New Frames for the Private Labor Market: Antidiscrimination, Marxist Politics, and the New Voluntarism B. The Influence of Progressive-Realist Jurisprudence C. Civil Rights in the Private Labor Market: The Emergence of Labor Law D. Civil Rights in the Private Labor Market: The Emergence of Antidiscrimination Practice E. Conclusion V. THE REVOLUTIONS OF 1938: LEGAL LIBERALISM AND ITS ALTERNATIVES CONCLUSION
The Brown v. Board of Education litigation, and the Supreme Court decision that it produced, (1) have cast a long shadow over the legal historiography of the civil rights movement. The Brown litigation has become the lodestar for a "legal liberal" interpretation of civil rights history. (2) Its core elements have become familiar: courts as the primary engines of social transformation; formal conceptual categories such as rights and formal remedies such as school desegregation decrees, as the principal mechanisms for accomplishing that change; and a focus on reforming public institutions (or, in some versions, public and private institutions without much distinction) as a means of transforming the larger society. (3) Legal liberalism, of course, is an ideal type, and scholars have given varying emphases to its core elements in their accounts of civil rights law and politics. Nonetheless, the legal history of civil rights has been written with the Brown decision at its centerpiece, telling the story, in effect, of the antecedents and consequences of Brown. Civil rights history remains, at its core, the story of how African-American communities, and the lawyers and organizations that supported them, struggled to overturn Plessy v. Ferguson, (4) attack de jure segregation, produce the triumph of legal liberalism in Brown, and effectively implement Brown's antidiscrimination mandate. (5)
I will argue in this Article that the legal liberal interpretation of civil rights history is a myth--at least as it applies to the African-American civil rights bar during the period between World War I and II. That is, this interpretation is less an engagement with the complicated civil rights politics that had emerged by the middle of the twentieth century than a historical interpretation that helped scholars, commentators, and civil rights lawyers themselves make sense of American politics in the late twentieth century.
The first group of scholars who studied the interwar generation of black lawyers charted a variety of objectives for these lawyers' professional practice. But in the aftermath of the NAACP's success in Brown and its companion cases, led by a predominantly African-American legal team, the prevailing conception of those lawyers began to change: Both historians and legal scholars began to imagine instead that legal liberalism had been the primary object of their efforts. By the 1970s, the new interpretation was in full bloom, with a spate of books and articles chronicling what was assumed to be the legal liberal struggle of African-American lawyers, civil rights organizations, and local communities that achieved its longstanding objective in Brown.
By the late 1970s, the new interpretation of civil rights history was generating its own counter-literature, with a variety of scholars critiquing legal liberalism as a limiting rather than emancipatory approach to law and social change. …