by Risa L. Goluboff. Cambridge: Harvard University Press, 2007. 384pp. Cloth. $35.00/£22.95/€32.30. ISBN: 9780674024656.
Reviewed by Keith J. Bybee, College of Law and Department of Political Science, Syracuse University. Email: kjbybee [at] maxwell.syr.edu.
What if the main debates over civil rights in the United States were not concerned with whether the government may classify individuals by race? Instead, what if civil rights debates were about whether racial and ethnic minorities enjoyed equal economic opportunities? What if, in other words, the central issues of civil rights were jobs and wages rather than affirmative action and desegregation?
In her terrific new book, Risa L. Goluboff breathes life into such counterfactual questions by examining civil rights litigation in the decades before BROWN v. BOARD OF EDUCATION.
“Like all cases,” Goluboff writes, “BROWN reflected a partial view of the social reality that produced it” (p.238). A wide range of individual complaints, political considerations, doctrinal theories, and litigation strategies had been whittled away by the time BROWN reached the Supreme Court. This winnowing process was particularly important in the case of BROWN, Goluboff argues, because the decision proved to be extraordinarily influential, becoming the central legal and political focus of the civil rights debate after 1954. Goluboff’s goal is to excavate and examine ideas that BROWN displaced.
Goluboff begins with a discussion of the fluid state of civil rights after the demise of substantive due process jurisprudence – a jurisprudence typified by the Supreme Court decision in LOCHNER v. NEW YORK. During the LOCHNER era, the Supreme Court generally “viewed government as an umpire distantly overseeing private contractual relations in which it was occasionally forced to intervene” (p.22). The Court largely abandoned that view in the late 1930s and adopted a view of government as an active provider of rights, legitimately working to protect individuals in the teeth of social and economic inequalities. This break with the past left lawyers and jurists uncertain. The doctrinal categories that grounded professional legal training had collapsed, but it was by no means clear what new categories would be erected in their place. Rather than being a period of stasis or of steady progress toward a known goal, the 1940s were a time of civil rights experimentation (it would only be after BROWN that legal scholars would reach back to cases like UNITED STATES v. CAROLENE PRODUCTS CO. to argue that the successor to LOCHNER-style thinking had quickly emerged). “To most commentators [in the 1940s],” Goluboff observes, “only one thing was clear: the future would be different from the past” (p.23). [*660]
Goluboff claims that, if there was a leading candidate in the 1940s to replace the LOCHNER-era interest in free contract, it was a concern for economic rights. To support her claim, Goluboff not only charts the general growth of pro-labor legislation and judicial decisions coming out of the New Deal, but also catalogs the specific complaints lodged with the Department of Justice and the NAACP by individual African Americans working in the industrial economy and in the rural South. The national-level developments demonstrated that the rights of labor were ascendant, with new policies and agencies designed to improve working conditions and to support union organization. The individual-level complaints showed that rank and file African Americans were themselves very much concerned with jobs. The complaints sent to the DOJ and NAACP repeatedly linked the evils of public and private racial subordination directly to economic exploitation. Agricultural and industrial workers alike were preoccupied with racial discrimination because it interfered with making a living.
With all the attention being paid to economic concerns during these early days, how did we end up with a civil rights debate that focuses on racial discrimination with little concern for material inequality? Goluboff answers this question by examining how lawyers in the DOJ’s Civil Rights Section (CRS) and the NAACP rendered the complaints of African American workers into legal claims.
CRS lawyers did attempt to address the economic harms of the Jim Crow system. For a variety of reasons – including the personal motivations of the CRS staff, the institutional location of the CRS in the federal bureaucracy, and the political pressures of the time – the CRS took up the complaints of black agricultural workers. CRS lawyers couched their legal arguments in terms of the Thirteenth Amendment’s prohibition against slavery and involuntary servitude, a doctrinal move that allowed them to address peonage and economic exploitation in the public and private sectors. Over the course of the 1940s, CRS attorneys gradually expanded their understanding of involuntary servitude to include various kinds of economic coercion. The result was that the CRS effectively expanded New Deal protections in new directions. “Where the New Deal had emphasized labor and economic rights and assisted African Americans only partially and incidentally, these novel involuntary servitude prosecutions aimed to bring African Americans within the New Deal rights framework” (p.143).
The NAACP dealt with worker complaints on quite different terms. The NAACP was formed largely by elites who were ambivalent about the specific concerns of industrial and agricultural workers. Goluboff argues that even though “black teachers, lawyers, doctors, and other elites” did face “barriers to entry in the professions, salary differentials, and other challenges,” they also profited from Jim Crow segregation because it created a “relatively captive black community” dependent on the elites’ professional services. Black elites [*661] primarily experienced the “wrongs of Jim Crow in their personal and political lives – with limited access to government, restaurants, hotels, theaters, and other social, cultural, and political institutions” (p.176). This root concern with the noneconomic aspects of racial segregation strongly influenced NAACP lawyers. They did file labor-related lawsuits in response to worker demands and political opportunities, but these efforts were always “somewhat reluctant and provisional” (p.198). After World War II, when the burgeoning Cold War and the domestic crusade against Communism put civil rights groups on the defensive, NAACP lawyers returned to their core concern and focused more exclusively on racial discrimination itself, arguing that government-imposed racial segregation on its own, independent of any material inequality, inflicted constitutionally suspect stigma.
The NAACP’s vision was resoundingly vindicated in BROWN. This great success reinforced the NAACP’s preferred strategy and ultimately pulled the CRS along in its wake. BROWN had removed the basic uncertainty about the future civil rights that had characterized the 1940s. As the logic of BROWN was extended and refined by continued litigation and academic commentary, the CRS embraced the new approach to civil rights, even though it left the economic consequences of Jim Crow more or less intact. African American workers certainly benefited from BROWN, but not to the degree that they would have had the CRS’s Thirteenth Amendment litigation become the dominant approach. “Enshrined in constitutional law, then, was BROWN’S image of a Jim Crow that had as its central harm the psychological harm of inferiority. That harm and the harms highlighted in the 1940s labor cases could not have been more different. Stigmatic harm was not unimportant to the workers who complained to the NAACP, but they more often emphasized the economic harms that segregation entailed: less work, worse work, inadequate salaries, economic insecurity and lack of advancement” (p.244).
Goluboff’s argument is clear and well-organized. Although she draws on a wide range of primary material and weaves together an impressive amount of scholarship from law, history, and political science, she wears her learning lightly and writes in a manner that is accessible to the non-specialist. Goluboff’s book also provides an important counterweight to the common scholarly focus on judicial decision making. Goluboff expertly identifies and examines the dozens of small decisions made by lawyers as they determine how experienced harms should be translated in legal claims. In doing so, she demonstrates how lawyers generate the basic materials that judges use to synthesize their opinions.
In my view, Goluboff could have spent a bit more time exploring the concrete consequences of the CRS’s involuntary servitude litigation. Her argument also would have benefited from a more extended consideration of the difference her history makes for current practice. As a result of her work, Goluboff wants us to be free to re-imagine civil rights in a different form. Yet, given the [*662] well-developed institutional, political, and legal structures that have grown up around BROWN-based civil rights, what impact can we realistically expect from the knowledge that things were done differently sixty years ago?
These concerns are, however, merely quibbles. Goluboff has produced a truly excellent work of legal history that elegantly demonstrates how the basic terms of modern civil rights came to be established.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).
© Copyright 2007 by the author, Keith J. Bybee.