The Lost Promise of Civil Rights

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Risa L. Goluboff. The Lost Promise of Civil Rights. Cambridge, Massachusetts: Harvard University Press. 2007. pp. viii + 376. $21.00. Paper: ISBN 9780674034693


Risa L. Goluboff challenges the traditional narrative of civil rights history in her well-researched legal argument, The Lost Promise of Civil Rights. Goluboff contends that the 1954 Brown v. Board of Education decision became the “dominant historical narrative and the reigning legal canon” despite crucial legal activity in the 1930s and 1940s to promote civil rights based on labor and economic rights (p. 4). To prove her contention, Goluboff tracks the major legal arguments from the Reconstruction era until the 1950s and casework of two key organizations, the NAACP and the Civil Rights Section of the Justice Department (CRS).

The CRS focused efforts on the agricultural South and its system of peonage to control movement of workers through a state of involuntary servitude. Goluboff claims white planters nervous about losing workers to war defense industries used criminal surety laws, wage ceilings, sheriff services, and even draft boards to criminally restrict movement of its African American labor force. Brutal work conditions, debt systems of tenancy or sharecropping, racial subordination and economic exploitation kept workers economically disadvantaged and in a state of virtual slavery. While the CRS was committed to helping protect labor rights of agricultural workers, people with traditionally no political stake due to post Reconstruction legislation, Goluboff points out “both Roosevelt and his lawyers hoped to alter the political landscape of the white South without alienating southern white Democrats completely” (p. 127). One way to create a change without alienating political allies was to prosecute “especially shocking abuses, like peonage and involuntary servitude, lynching, and police brutality” (p. 128). Using the anti-peonage section of the Thirteenth Amendment, the courts succeeded in obtaining a conviction in cases like United States v. Skrobarczyk, stating that “the negro, no matter what his station in life, has the protection of the laws of the land” and could not be held in virtual servitude on a farm (p. 133). The 1943 case helped raise African American morale, deflected Axis propaganda, and compared peonage to “Nazi tyranny” but established the CRS’s role in winning labor rights for agricultural workers (p. 132). Goluboff contends that the CRS prioritized economic gains over racial issues and sought to improve conditions for laborers rather than distinguishing race as the cause of discrimination due to the focus on using the Thirteenth Amendment as the legal basis for helping the plight of agricultural workers. This definition of involuntary servitude and slavery expanded to include domestic workers and the CRS used its gains to address the labor concerns of household labor. Goluboff describes other cases like Ingalls v. United States which demonstrated a legal shift indicating a “willingness to use federal law to intrude into relationships of household labor, relationships that Congress had deemed local, private, and off-limits to the federal government” but now fell under the restrictions of the Thirteenth Amendment’s prohibitions against involuntary servitude (p. 168). For the CRS and its leader, United State Attorney General, Francis Biddle, the context of the New Deal, the Atlantic Charter, and the Four Freedoms provided new guidance on definitions of civil rights.

The second major legal force discussed by Goluboff is the National Association for the Advancement of Colored People (NAACP) and its legal division, the Legal Defense and Education Fund (“Inc. Fund”). While the NAACP advised on many issues since its inception, during the 1940s the NAACP focused on industrial cases. This shift developed out of the NAACP’s growing middle-class and industrial membership base as well as the realization that northern industrial cases offered broader options for legal success with the likelihood of “sympathetic judges and amenable lawyers …more readily available outside the rural South” to increase chances of success to boost morale and create desirable legal change (p. 187). NAACP lawyers used the Railway Labor Act (RLA) and the National Labor Relations Act to argue that “unions were state actors for constitutional purposes” and as such were obligated as a state entity to not discriminate (p. 203). In James v. Marinship Corporation, lawyers argued a union “could not maintain both a closed shop and a closed union” further limited its ability to discriminate against African Americans by determining separate auxiliary unions were illegal if the parent union already established a closed shop (p. 205). Goluboff contends the NAACP used the equal protection clause of the Fourteenth Amendment to create legal doctrine that set the stage for segregation cases based on labor rights, but that “pragmatism counseled pursuing material advancement within the confines of segregation” until 1951 when the NAACP annual conference announced a “commitment to desegregation” (p. 213).

According to Goluboff, the shift to civil rights as a segregation legal issue occurred during the 1950s as the NAACP’s membership changed and alliances formed with labor unions in defense “against red-baiting Republicans and southern Democrats” (p. 222). NAACP lawyers “essentially returned to their Depression-era position that ‘labor’ issues–separate from ‘race’ issues–were not appropriate for legal action” and shifted attentions to transportation and education cases where segregation could be challenged (p. 225). Success in education cases Sweatt v. Painter and McLaurin v. Oklahoma made the Plessy "separate but equal" ruling the “essence of Jim Crow” and the prime target for legal change (p. 227). Goluboff also describes the growth of psychological research and how studies measuring psychological harm became the new standard for criminalizing segregation as opposed to earlier rationales based on economic harm, harm to dignity, or stigmatic harm. Once psychological damage proved the inherent dangers of segregated education and American schools proved to be the “primary American institution for racial and civic indoctrination,” the Supreme Court could privilege the role of education as the prime function in developing democratic citizens and cultural values (p. 249). Thus, the role of education and segregation, based on the Brown decision, was privileged as the keystone in the civil rights legal battle, according to Goluboff.


Sheri A. Huerta, Fall 2012

Goluboff presents an interesting contrast to a social history narrative of the civil rights movement from the perspective of the difficulties the legal profession faced creating effective legal precedent for change to Jim Crow systems. This approach looks beyond social history approaches based on urban discontent to focus on the legal, political, and academic difficulties in interpreting constitutional rights based on amendments created in the Reconstruction years but applied to work and economic conditions of the 1920s, 1930s, and 1940s. Goluboff’s explanations of the legal constraints placed on lawyers by the 1905 Lochner v. New York decision as well as political considerations of southern Democrats and the potential political clout of agricultural workers versus industrial workers provides a new dimension to the evolution of the concept of civil rights. (Lochner separated due process rights from Reconstruction era civil rights and Goluboff maintains this decision tied the hands of lawyers until the 1930s when New Deal legislation increased powers of the federal government). Goluboff also points out that this concept was not always clear and that it varied based on a growing list of doctrinal theories based on peonage laws; economic rights based on a concept of right to work; union rights based on non-discrimination; rights to economic and material well-being based on non-discrimination; and then ending segregation by challenging the Plessy verdict.

While her arguments carry the weight of scholarship and research, they tend to be overly repetitive and presume familiarity with the cases she presents. Many cases are only briefly described so the significance is not always apparent to the case particulars, nor is the immediate connection between the Civil Rights Section lawyers or the NAACP legal team made clear. At some points she seems to be saying that the CRS and the NAACP were the main determinants of civil rights legal doctrine, yet responsibility for legal casework is often vague or diffused between many lawyers working on cases. From Goluboff’s descriptions of prevailing conditions in the agricultural South and industrial North and West, only a few cases seem to have reached the courts, yet there is no statistical analysis on how many cases were accepted by the two groups, how workers knew to contact the Civil Rights Section or NAACP, or how the cases influenced local conditions.

What does become apparent is that our concept of civil rights developed out of changing legal interpretations as to what constituted proper application of the Thirteenth, Fourteenth, and Fifteenth Amendment concepts of due process, equal protection, peonage, state action, fair employment, harm, and federal intervention. Goluboff asks the historian to reconsider civil rights not from a Brown v. Board of Education interpretation based on education and integration as the keystones of civil rights, but from the perspective of the many economic and labor issues brought forward by the CRS and NAACP on behalf of agricultural, domestic, and industrial workers in the 1930s and 1940s as the real, legal foundation of civil rights in America. This perspective breaks away from traditional images of peace marches, freedom rides, or race riots to legal and academic contemplations designed to take the best cases in order to create effective legal precedent. Taken from this academic and legal perspective, the battle for civil rights encompassed not only demands from the people, but required the legal ability and insight to craft the legislation or court precedent for defining and guaranteeing rights. Goluboff contends that civil rights are based on legal definitions and pivotal legislation. Creating the conditions that supported new interpretations of labor rights, work rights, non-discrimination rights, and education rights was a process that did not happen with the advent of Brown, but developed slowly through calculated moves to support agricultural, domestic, and industrial workers. While the delivery of the message was not always clear, the message itself is worth considering as a valuable perspective on defining and defending civil rights.

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