Yearly Archives: 2021
Dec 14, 2021 Lael Weinberger
Natural law is a topic that comes up frequently in legal history and legal theory but it has only rarely been the focus of study by American historians. Stuart Banner’s new book, The Decline of Natural Law, about how American lawyers used natural law and why they stopped doing so brings some welcome light to this important subject. A few years ago, the great historian of English law Richard Helmholz bridged the gap from Europe to America with his insightful volume Natural Law in Court. Banner picks up where Helmholz left off, to explore why practicing lawyers and judges stopped invoking natural law (and pointing to the nineteenth century as the key transitional period).
Natural law, as used in this book, refers to the idea that certain principles of law can (and ought to be) perceived by right reason in accord with the nature of things. This was often explained, historically, as a characteristic of God’s design for the world (though natural law as such was accessible to reason without any reliance on special revelation). The title of Banner’s book immediately tells us that his is a declension narrative. In the century-plus that is the focus of his book, natural law went from being a widely accepted part of American law to being rejected as unworkable and naïve.
In the first part of the book, Banner surveys the landscape of American law when natural law was a regular part of the conversation. Banner’s book is not primarily an intellectual history. This is not about the ideas of theorists but about the lawyers and judges who used natural law and about the place of natural law in American legal culture. His exposition of the common lawyers’ worldview is clear, concise, and sympathetic. (It can be profitably read in conjunction with Kunal Parker’s insightful study of common law theory before modernism.) Lawyers believed that the common law was found rather than invented by judges and that it was based on custom and reason—the latter being the domain of natural law. Common law was often thought of as the application of natural law to specific circumstances and cultural instantiations.
In the second part, Banner shifts to describe several factors that contributed to the declining influence, prestige, and acceptance of natural law. Written constitutions took the place of natural law as providing a basis for evaluating the validity of statutes and constitutions. The increase of legal publishing (particularly of reported cases) made it less likely that practicing lawyers would need to turn to natural law as a gap filler. Religion was increasingly separated from law, and natural law with its traditionally theistic assumptions was likewise separated from legal practice.
The final chapters note that natural law declined but never completely died. Its influence lives on, not just among theorists who (though a minority) continue to advocate for natural law in academic jurisprudence. It also has long-lasting echoes in more concrete legal fields. Banner notes Supreme Court’s references to the meaning of life and of liberty in some of its more contentious recent opinions on personal autonomy; he also cites the natural law overtones in international human rights arguments.
Banner writes clearly and concisely. What could easily have become a dense discussion of abstract legal theory stays grounded in the lively arguments and concrete cases of history. Banner’s choice to provide an internal account of the law keeps the text manageable, but comes at a cost. Much of the story of why natural law declined is happening outside the frame. Why did lawyers begin to view law and religion as separate domains in the latter half of the nineteenth century? What drove thinkers like Langdell or Holmes to obsess over natural or social sciences as the model for legal theory? Questions like these would require contextualization in a much broader conversation about American intellectual and cultural history, far beyond the scope of Banner’s book.
Limits notwithstanding, The Decline of Natural Law deserves a wide readership among legal scholars. Any teacher of law would be well-served by thinking with the lawyers of the past about how reason, tradition, and custom shaped the common law system—and how changing beliefs over time shaped and re-shaped the range of possibilities for legal arguments. Legal historians will find this a helpful jumping-off point for study of an important shift in understanding what the law is at a foundational level. Constitutional scholars who debate the historical meaning and ongoing applicability of natural law or natural rights can benefit from a better understanding of natural law’s history. Those inclined more towards theory and jurisprudence will find this a helpful account of how philosophy of law affects practice and vice versa.
Nov 16, 2021 Anders Walker
Is capitalism good? A growing number of historians suggest no, particularly scholars affiliated with the New History of Capitalism, a trending field with close ties to Harvard and a deep interest in locating slavery at the center of the American experience. However, historian Woody Holton strums a more positive chord in his recent essay, “The Capitalist Constitution,” part of a larger anthology edited by Sven Beckert and Christine Desan styled American Capitalism: New Histories. Holton reminds us that the Framers’ anti-democratic interest in finance may not have been a bad thing, laying the foundations for a dynamic market economy that would propel the United States forward for the next two centuries.
Interested in the “actual motivations” that brought the founders to Philadelphia in 1787, Holton focuses on two compelling, if understudied concerns: an interest in preventing states from printing paper money and a related interest in preventing states from enacting legislation that impaired contracts. Both measures, on their face, seem rather obscure. Neither bore directly on the question of slavery. Nor did they relate to the reasons generally thought to have prompted the call for a robust, national Constitution: including the inadequacies generally associated with the Articles of Confederation.
However, Holton argues persuasively that the Framers shared a deep economic interest in creating a political order conducive to raising capital, an order that, in turn, favored investors by reassuring them that electoral majorities would not use the political system to devalue currency (by printing paper money) and/or erase debt by enacting legislation infringing on contracts. Since most voters were small farmers who relied on debt to carry them through harvest (and faced foreclosure when they could not pay their creditors), they liked the idea of printing paper money and also legislation cancelling contracts (specifically their obligations to pay back their loans). Therefore, the matter of creditors rights became an anti-majoritarian one, interesting primarily to elites.
For example, Holton demonstrates that James Madison—the purported “father” of the Constitution—struggled to raise capital for land deals in New York that he felt promised higher returns than his slave-generated wealth in Virginia. Yet even Madison struggled to find investors willing to front him the money. As Holton puts it, “it was becoming harder and harder for men like [Madison] to convert their land and slaves into cash,” meaning that they found themselves increasingly reliant on private equity for their ventures.
Here, capitalism’s thirst for credit helped forge a Constitutional order that would—ultimately—prove the undoing of the agrarian, static South. Although Madison, Jefferson and Washington all relied on slavery for their livelihoods, slavery by itself did not generate sufficient wealth for them to grow their enterprises—leaving them oddly in debt. To compensate, they became entrepreneurs/speculators, a move that is often forgotten but worth remembering, if for no other reason than it ties together a fistful of loose historical ends. For example, the Framers’ need for private equity explains the alarm generated by debtor revolts like Shay’s Rebellion, which convinced the Framers that contracts warranted more protection than democracy. Further, it explains why those Framers who relied on slavery, a static form of capitalism rooted in coercion, also endorsed a more dynamic version of investor capitalism rooted in competition and risk. They realized, for example, that making America friendly for investors would ultimately benefit themselves more in the long run than myopic schemes aimed at debt-relief.
Holton’s concise essay should be of interest to legal historians interested in the Contracts Clause, as well as Constitutional historians generally. For one, it helps to explain why slave-owners like James Madison favored a dynamic form of investor capitalism that would—by 1860—dramatically out-produce the slave-South. For another, it underscores the anti-democratic tendences rampant at the Founding, even as it adds nuance to arguments about American democracy like the one made by Michael Klarman in his recent book The Framers’ Coup: The Making of the United States Constitution (OUP 2016). Klarman laments the anti-democratic nature of the Constitution’s structure, even calling for a rethinking of the modern Senate.
Oct 18, 2021 Joanna Grisinger
Mia Bay’s fantastic new book, Traveling Black, is both a richly detailed history of travel and transportation from the late nineteenth century to the 1960s that centers the experiences of Black travelers, and a deeply researched history of resistance to discrimination that brings to light those travelers’ active and ongoing efforts to demand equal treatment.
Bay keeps the focus on Black travelers throughout, explaining in granular detail all of the ways in which one’s experience of travel depended on one’s race. The first several chapters each focus on a single form of travel—railroad, car, bus, and airline. In each chapter, Bay offers detailed descriptions of how formal and informal restrictions imposed by white lawmakers and business owners affected where and how Black travelers were able to ride, drive, wait, eat, drink and sleep. One notable strength of Traveling Black is Bay’s ability to tell a national story about multiple kinds of transportation while also directing readers’ attention to how the “complex pastiche of law and custom created racial rules that were too inconsistent to be easily followed—or endured.” (P. 8.) Practices differed by region, by state, and by city. Some of the discrimination, segregation, and exclusion she describes was a matter of individual discretion or business practice or local custom. Airlines, for example, created “a variety of unobtrusive approaches to discouraging Black passengers—which never ended up in court.” (P. 210.) In other areas these practices were supported by formal laws requiring segregation and empowering transportation workers as enforcement agents.
Throughout the book, Bay makes clear how much work white business owners and white government officials put into imposing racial hierarchies on each new travel experience. Allowing travelers to intermingle would have required little effort, but suggested a kind of racial equality that was anathema to white decision-makers. For businesses and officials committed to making racial hierarchies clear, each new form of transportation was its own challenge, as trains, cars, buses, and airplanes each had different seating configurations, technologies, economics, and regulatory regimes. Thus, for example, Black passengers were directed to separate railroad cars, to the rear seats in a bus, and to the front seats of an airplane—in all cases the least comfortable location, and one that assured white travelers of their own social position. Travelers also created demand for various related businesses—including railroad and bus depots, airports, gas stations, hotels, campgrounds, restaurants, and airport taxis—and here too local businesses and government officials sought to ensure that Black travelers were treated worse than white travelers, or refused service entirely.
Bay also highlights how class and wealth intersected with racial discrimination. Wealth couldn’t improve a Black traveler’s railroad experience (with the exception of Pullman cars) or bus trip; it could, however, allow that same traveler to purchase an automobile and avoid trains and buses altogether. This raised new complications, though. As Bay points out, “Cars, which were available to anyone who could afford to buy one, challenged the Jim Crow South’s carefully regulated social order.” (P. 124.) Black travelers whose cars were too nice drew additional scrutiny from police.
In every area of travel, Bay demonstrates, Black travelers resisted, protested, amplified complaints, called on businesses and governments to act, and sued to challenge the white supremacist laws and customs they encountered. Black travelers drew on a variety of legal arguments, including nondiscrimination language in the Interstate Commerce Act of 1887 and its amendments and the Federal Aviation Acts of 1938 and 1958, that the agencies in charge had failed to enforce. Bay urges us to rethink our histories of this era in order to acknowledge a much longer and more extensive pattern of resistance than previously known; these actions “document a sustained fight for mobility that falls largely outside the organizational history of the civil rights movement.” (P. 3.) This deeply researched book brings this fight to light, and in particular makes excellent use of Black newspapers to describe a lot more use of the courts than well-known court victories demonstrate.
These efforts, however, led to little practical change. Bay demonstrates the difficulties of legal challenges to these practices, given the confusing and often overlapping jurisdictional boundaries involved. Interstate and intrastate travel were constitutionally distinct, so railroad depots, restaurants, taxis, gas stations, and airports were legally different spaces than were railroad cars and airplanes. (And airports, mostly constructed with federal funds, were themselves not subject to the same rules as bus and railroad depots.) Railroads, buses, and airlines, as common carriers, were subject to different rules and laws than automobiles, and railroads and buses were subject to one federal agency (the ICC), while airlines were subject to others (the Civil Aeronautics Board and the Federal Aviation Administration). Bay deftly navigates these differences, always making clear to the reader what the legal status of each space was, how parties attempted legal challenges, and, as often happened, which nondiscrimination provision(s) those in charge of the space were choosing to ignore.
A key theme of the book is the ineffectiveness of legal and policy wins untethered to strong enforcement. Bay describes the legal victories along the way, but also how they did little to change Black travelers’ experiences. Some businesses responded to complaints with concern and promises of improvement, but did nothing. Hard fought victories in court or before the Interstate Commerce Commission (ICC) were not enforced. The final two chapters tell the somewhat more familiar story (to legal historians, anyway) of more successful efforts to fight transportation segregation. Black passengers begin winning in federal court (in cases like Morgan v. Virginia (1946), Gayle v. Browder (1956), and Boynton v. Virginia (1960)) and before the ICC (in Keys v. Carolina Coach Co. (1955)). Direct action efforts like the Montgomery bus boycott and the Freedom Rides brought additional public attention to the issue of racial discrimination in transportation. However, even these widely touted victories were not enough to change the experience of travelers. Businesses continued to simply decline to comply with laws and rulings and administrative orders, and not until the 1960s, when the Department of Justice and the ICC finally began aggressively enforcing judicial decisions and statutory bans on discrimination, was there real change in businesses’ behavior.
The book concludes with the Civil Rights Act of 1964, Title II of which stated a broad national rule against racial discrimination in public accommodations affecting interstate commerce. As Bay describes, “Enforced by the Department of Justice and supported in the courts, Title II of the 1964 Civil Rights Act worked in tandem with the ICC’s 1961 ruling barring racial segregation in interstate transportation and put a decisive end to many of the most galling indignities that Blacks had long suffered. While racism is far from dead, the desegregation of public accommodations was, and still is, one of the civil rights movement’s most important achievements. Its impact in the field of transportation was nothing short of transformative.” (Pp. 304-05.)
Bay’s epilogue, however, warns the reader that, as effective as the Civil Rights Act was in stopping most discriminatory practices that bedeviled Black travelers for most of the twentieth century, white supremacy finds a way. Bay briefly sketches some ways transportation discrimination has manifested since 1964, noting the demise of and defunding of public transportation in urban areas; the construction of highways through historically Black neighborhoods; suburbanization, white flight, and Americans’ increasing dependence on cars; and discrimination by “private” AirBnB hosts. In addition, Title II did nothing to address the risk police traffic stops pose to Black drivers—a problem that has grown substantially worse with the vast expansion of policing since the 1970s. “Black Lives Matter, like many of the earlier civil rights initiatives chronicled in this book, has taken shape at least in part around the dangers of traveling Black.” (P. 318.) Bay ties all of this into a broader point about the limits of formal law; “Many of the forms of racial discrimination encountered by African American travelers were informal rather than required by law, and many of them have not been eradicated. Today, as in the past, civil rights laws are not always successful in protecting Black travelers.” (P. 307.)
Sep 16, 2021 Mary Ziegler
Jennifer Holland’s well-researched, captivating history will open a new chapter in historiographic debates about the pro-life movement’s roots—and about the racial politics of abortion. Focusing on antiabortion organizing in the Four Corners region of the United States (an area encompassing all or part of Colorado, Utah, Arizona, and New Mexico), Tiny You explores how abortion became (and remained) the defining political issue for social conservatives. Holland offers a provocative look at the long shadow cast by civil rights law on so many of our debates, exploring how conservative social movements have laid claim to those traditions in profoundly consequential ways.
In recent years, historians of the 1960s and 1970s have documented how abortion foes redefined their cause as a quintessentially legal, rather than religious, cause. The movement successfully leveraged the strategies of the civil rights movement to justify restrictions and outright bans on abortion. Pro-lifers relied on the rhetoric of civil rights in the political and legal arena. In court, pro-life attorneys invoked race-discrimination jurisprudence, pointing to the Equal Protection Clause to establish unborn children as a protected minority. Some scholars suggest that pro-lifers’ turn to civil rights was both sincere and transformative. What had been a Catholic movement won allies with different political perspectives and religious backgrounds. In the late 1960s and early 1970s, some secular activists, Mormons, Orthodox Jews, and mainline Protestants had joined the movement. By the 1980s, evangelical Protestants, even those opposed to busing and key planks of the civil-rights agenda, joined the movement in increasing numbers. By moving away from explicitly Catholic arguments—and by playing down opposition to contraception—abortion foes built a more religiously diverse movement. All the while, as pro-lifers painted their struggle as a fight for civil rights, the movement remained predominantly white.
Holland makes sense of the complex racial politics of abortion. She argues that the struggle over abortion allowed conservative white Christians “a new type of racial identity, one based on […] claims to morality and common sense.” (P. 28.) In her view, abortion foes appropriated civil rights rhetoric all while changing what it meant, neglecting questions of racial justice, repositioning (often white) fetuses as victims, and reclaiming the moral high ground for white activists opposed to abortion.
Starting in the 1960s and 1970s, Tiny You begins by examining how conservative Catholics mobilized to oppose pornography and contraception. These fights created conservative Catholic networks that would later field prominent activists in the abortion conflict. Central to this mobilization was the circulation of powerful fetal images. From the beginning, these images had everything to say about race and racism in America. Holland chronicles how antiabortion leaders like Dr. John Willke and his wife, Barbara, courted support in Utah by stressing images of white fetuses, all the while pitching their cause as a fight to protect embattled minorities. Antiabortion leaders insisted that by denying the personhood of human beings, abortion resembled slavery and the Holocaust. Abortion opponents Denying fetal personhood would create a slippery slope, abortion foes maintained. Soon, the United States might deny the personhood of the elderly, the disabled, or other vulnerable groups.
Tiny You challenges leading historical accounts of why and how the antiabortion movement turned to civil rights arguments. Holland, like historian Daniel K. Williams, recognizes that the antiabortion movement relied heavily on the history of civil rights. The adoption of civil rights rhetoric unquestionably had a strategic dimension. The antiabortion movement faced headwinds as long as many believed it was a front for the Catholic Church. Williams, however, asserts that this shift reflected deeply held beliefs about “the feminism of difference” and “the social welfare politics of New Deal liberalism.” (Williams, Pp. 6-7.) New Dealers embraced programs intended to protect the vulnerable, especially the poor. Pro-lifers believed that protection for the unborn (as well as for low-income mothers) would fit well in this kind of New Deal vision. Williams highlights the work of antiabortion Democrats who supported workers’ rights, a living wage, and employment protections for minorities and women. In his view, the fight over abortion pitted two visions of liberalism against one another, at least before the Supreme Court decided Roe v. Wade and abortion foes aligned with the Republican Party. Holland’s rich narrative complicates this account and forces us to revisit the complex racial politics of abortion.
These arguments had a legal as well as political dimension. Invoking the Thirteenth Amendment, abortion opponents insisted that Roe v. Wade denied fetal personhood just as slavery had denied the personhood of Black Americans. After 1973, abortion foes demanded a constitutional amendment of their own. But Holland shrewdly notes that antiabortion activists in the Four Corners region rarely put direct effort into fights against racism or anti-Semitism. In New Mexico, for example, antiabortion leaders did not work with Chicano or American Indian activists concerned about sterilization abuse. Holland reasons that members of a predominantly white antiabortion movement meant something very different by human rights and civil rights than did their nonwhite neighbors. Indeed, antiabortion advocates often insisted that abortion was worse than the Holocaust or slavery because “fetuses were the only innocents, the truly helpless.” (Pp. 88-89.)
Holland meticulously documents how the racial politics of abortion shifted in the 1980s and 1990s, as the movement began to focus on woman-protective arguments. Tiny You offers an inside look at crisis pregnancy centers (CPCs) that helped to spread these arguments. These organizations set out to mobilize what they called post-abortive women, contending that the procedure denied them civil rights. CPCs primarily identified white activists but provided services to a diverse clientele. But while ministering to women of color, CPC leaders played down any role played by race or class in the struggles their clients faced. Instead, CPCs pressed the claim that abortion alone was to blame for what women faced. Tiny You offers a different perspective on the rise of the conservative movement in the West in the period, showing how abortion foes grappled with racial politics in complex, sometimes surprising ways.
The effects of abortion’s racial politics were legal as well as political. CPC leaders helped to pass informed-consent laws and overhaul the allocation of federal family planning dollars. The movement also made its impact felt in sex education policy. After Congress passed the Adolescent Family Life Act in the early 1980s, antiabortion activists used federal money to pitch their own sex education programs, including Sex Respect, an abstinence-centered approach that framed both premarital sex and abortion as “deadly.” (Pp. 171-73.)
Holland explores how this campaign, like so many, contested the meaning of civil rights in modern America. By often foregrounding the abortion of white children, abortion opponents claimed that whites too were victims. And by arguing that abortion was at once “the root of racism” and “the source of women’s oppression,” the activists in Holland’s story found ways to claim the mantle of the civil rights movement without embracing measures to eliminate discrimination on the basis of race or sex.
The pro-life movement’s complexity makes it even more important to have compelling histories like this one. Readers need not accept every dimension of Holland’s story to recognize its importance. Those most likely to have abortions, or to feel the effects of abortion restrictions, are not white. Yet as Holland convincingly shows, white conservative activists have worked to redefine our civil rights tradition, with consequences that we still just beginning to understand.
Aug 3, 2021 Reuel Schiller
I have no doubt that most Jotwell readers—particularly readers of its legal history section—remember sitting in their U.S. History class, learning the accepted narrative of “The Coming of the Civil War.” The Missouri Compromise. Check. The Mexican War. Check. The Wilmot Proviso. Check. The Compromise of 1850. Check. The Kansas-Nebraska Act. Check. The Dred Scott case. Double check for the audience of this review, I’d bet. The Lincoln-Douglas debates, Harpers Ferry, Lincoln’s election, Fort Sumter. Check, check, check, and check. Many of us enjoyed this story of the political and legal maneuvering that shaped the conflict between freedom and slavery. What our eighteen-year-old selves probably didn’t notice was that the story focused primarily on the federal government. We also probably assumed that freedom and slavery were the only two statuses available to Americans in the years leading up to the Civil War.
Kate Masur’s marvelous Until Justice Be Done shows us otherwise. Indeed, she recounts a very different series of events—stories of the fight for the rights of free Black Americans at the state and local level for the hundred years between the Revolutionary War and the end of Reconstruction. This “first civil rights movement” runs alongside the traditional story of sectionalism and slavery, intersecting with it and explaining it in ways that a myopic focus on the federal government and political conflict over slavery do not. Indeed, after reading Until Justice Be Done, the standard narrative seems thinner and less substantial than it once was. Knowing what was left out, you can’t look at the sectional conflict, the Civil War, and Reconstruction in the same way again.
Until Justice Be Done is a book of many accomplishments. Most obviously, it tells a compelling narrative of the fight to overturn the racist laws and policies that, along with the law of slavery, constituted the legal framework of white supremacy in antebellum America. In the first decades of the nineteenth century, many northern states stripped Black men of the right to vote and prohibited African Americans from testifying against white people in court. Politicians in some northern states–particularly those carved out of the Northwest Territories—restricted the migration of African Americans into their states, banning it outright or imposing special requirements on Black migrants. They had to carry certificates of freedom that functioned as work permits. They had to find current residents of the state to post surety bonds guaranteeing that they would not become public charges. Southern states and the District of Columbia also regulated the mobility of free African Americans. They incarcerated free African Americans who had the audacity to travel without written proof of their free status. Similarly, Black sailors were required to report to jail for confinement while their ships were docked in southern ports. In certain circumstances, these temporary confinements became permanent, as Black travelers who could not prove their freedom were sold into slavery to cover the cost of their incarceration.
At the core of Until Justice Be Done is the story of the fight against these laws. Abolitionism, Masur shows us, was not merely a movement against slavery. It also sought to protect and promote the civil and political rights of free Black people. At its very center was the demand that African Americans be treated as citizens, both of the state where they resided and of the United States as a whole. As such, their privileges and immunities were protected by the Constitution. Their movement between states, and their right to work and hold property in any state could not be abridged. The government had the obligation to protect them from violence and unjust incarceration. It was also forbidden from denying them the franchise or the right to participate in judicial proceedings.
Unsurprisingly, the political and legal battles to secure these rights were uphill struggles. Racial egalitarianism was hardly a popular political position in antebellum America, and the fact that a large percentage of Black Americans living in the north were disfranchised did not make the task any easier. Nor did antiblack violence, threatened and actual. Masur also describes less obvious obstacles to legal and political equality. She demonstrates that the widely accepted constitutional and legal structures of nineteenth-century America – federalism and each state’s unquestioned police powers – were potent barriers to racial reform. Nonetheless, one of Until Justice Be Done’s signal contributions is to surprise its readers with the number of successes in this fight: Pennsylvania’s rejection of antiblack laws, Ohio’s stunning overturning of these laws in the 1840s, and Massachusetts’s bold defense of Black sailors, for example.
Indeed, what makes Masur’s narrative a page-turner is her ability to compellingly tell these stories of political and legal maneuvering and explain how civil rights advocates achieved successes, some pyrrhic and others genuine. In the process, readers learn the backstories of many familiar characters who would shape the legal and constitutional structures of Reconstruction-era America: Salmon Chase, Fredrick Douglass, Charles Sumner, and Lyman Trumbull, for example. More significantly, Masur exposes her readers to the Black abolitionists who led the antebellum civil rights movement, people often missing from the traditional narrative of abolitionism and the causes of the Civil War. These people – Samuel Cornish, William Howard Day, John Jones, and Theodore Wright, to name just a few—shaped the meaning of citizenship in a manner that would define antiracist law and politics in the years following the Civil War.
Masur’s deft telling of this narrative makes Until Justice Be Done an easy, rewarding read. The narrative, however, is only one facet of this fantastic book. She also makes a number of compelling analytical points. The first of these is to place the emergence of antiblack laws in the context of an increasingly robust literature about the state in early nineteenth-century America. As Masur notes, antiblack legislation was not sui generis. It was not a locus of intense regulation in an otherwise free society. To the contrary, the legal mechanisms of early nineteenth-century white supremacy sat comfortably within “a variety of interlocking and widely accepted structures of inequality.” (P. 317.) Combating these laws was difficult not simply because of the pervasive racism of antebellum America. The fundamental regulatory presumption that states had broad power to maintain what they viewed as a peaceful, “well-ordered” society inhibited reform impulses. The idea that the state could limit the rights of individuals – their right to move in and out of a community, to work, to hold property, or to vote – was uncontroversial. Women, children, the sick, the poor, “vagrants” and “vagabonds,” and the mentally ill all had their liberties profoundly circumscribed by the power of the state. Thus, the participants in the first civil rights movement had to overcome not simply a legal and political order suffused with white supremacy, but also a presumption that a state could routinely exercise its power to limit the fundamental rights of most of its inhabitants.
Until Justice Be Done also casts a new light on the history of Reconstruction and the meaning of the Fourteenth Amendment. By connecting the politics of Reconstruction to antebellum ideas about citizenship and civil rights, Masur helps her readers fully contextualize the amendment’s limitations. Most obviously, she demonstrates how far astray the Supreme Court wandered in the Slaughterhouse Cases. Until Justice Be Done shows that an expansive definition of “privileges and immunities” was central to antebellum civil rights advocacy. For half a century prior to Reconstruction, the opponents of antiblack laws argued that the privileges and immunities clause of Article IV required the states to recognize specific rights stemming from national citizenship. This was the basis of their argument that laws preventing Black Americans from moving between states or denying them the right to work or hold property on the same terms as others were unconstitutional. This was a debate they lost prior to the Civil War. It was also the basis for the definition of privileges and immunities the Republican Party placed in the Fourteenth Amendment. Put in this context, Masur shows us just how far the Slaughterhouse opinion deviated from the definition of privileges and immunities that had been nurtured for decades prior to its incorporation into the amendment.
Masur’s narrative also allows readers to better understand the state action requirement of the Fourteenth Amendment. Since 1883, civil right advocates have condemned this limitation, suggesting either that the Supreme Court irresponsibly read it into the amendment, or that the framers of the amendment should have anticipated the need for the federal government to directly police the private violence and discrimination that became a central part of Jim Crow. Yet, Masur’s narrative frames the Fourteenth Amendment’s focus on state action in a different light. Until Justice Be Done demonstrates that civil rights activists in antebellum America directed their energies at state action—racist laws in both the north and the south. Prior to the Civil War, this fight was carried out on a state by state basis with limited success. Accordingly, the framers of the Fourteenth Amendment had a transformative opportunity. They could remake the Constitution in a manner that created a uniform, explicit prohibition on the racist laws of every state. This was the goal that antebellum racial egalitarians had been seeking for decades. Thus, the state action requirement was not limitation. It was a radical, dramatic expansion of the power of the federal government to eliminate white supremacy.
While these analytic innovations sit at the center of Until Justice Be Done, the book is stuffed with other fascinating revelations. It is a treasure trove for readers interested in politics, race, and law in antebellum America. What was the legal and political significance of the right to petition? Where did the colonization movement fit in antiracism politics of the nineteenth century? How did Black Americans create powerful political institutions within a society that sought to subordinate them? How did the relationship between abolitionism and state-level politics cause the collapse of the Second Party System? Masur weaves the answers to these questions into her story of the first civil rights movement. In doing so, she grounds the events leading up to the Civil War and the contours of Reconstruction in a dramatically expanded narrative of nineteenth-century U.S. history and the history of race, pluralism, and democracy in America.
