by Alexander Tsesis. New Haven, CT: Yale University Press, 2008. 384pp. Cloth $35.00 ISBN: 9780300118377.

Reviewed by Steven Tauber, Department of Government & international Affairs, University of South Florida. Email: stauber [at] cas.usf.edu.


American law has an undoubtedly mixed record on civil rights. One the one hand, constitutional amendments, Supreme Court decisions, and statutes have markedly decreased discrimination against racial and ethnic minorities, women, religious minorities, the disabled, the elderly, and the GLBT community. Conversely, American law has also been the source of discrimination, and many of the policies intended to protect civil rights have been ineffective. It is common for civil rights observers to argue one position or the other, but Alexander Tsesis’ WE SHALL OVERCOME: A HISTORY OF CIVIL RIGHTS AND THE LAW refreshingly embraces both sides of this debate. Tsesis bases his quasi-optimistic view of civil rights law on America’s fundamental roots in liberty and equality as expressed in the Declaration of Independence and US Constitution. He argues that despite the systematic use of the law to discriminate, American liberal-democratic legal and political traditions have led to advances in civil rights. As he states on page two, his book chronicles the “birth pangs of civil rights” history.

Tsesis employs a legal history methodology, in which he examines chronologically the legal developments in civil rights. He focuses on official interpretations of relevant constitutional and statutory provisions, but he also examines the philosophical, political, social, and economic influences on those decisions. Chapter One explains how the liberal ideals leading to the American Revolution, especially the Declaration of Independence, provided a framework for equality, despite the fact that those principles applied only to wealthy white males. Chapter Two concentrates on the Constitution, and Tsesis demonstrates that despite the document’s endorsement of slavery, certain aspects of the Constitution and its creation laid the groundwork for subsequent civil rights progress. Chapters Three and Four examine in detail the institution of slavery in terms of its economic impact on the South and the political compromises it engendered. Tsesis also focuses on the optimistic elements of that period by tracing the history of abolitionists and their effect on law and politics.

Tsesis then analyses the period between the Civil War and the 1920s. Chapters Six and Seven illustrate the dichotomy between the Radical Republicans, who used the Reconstruction period to establish genuine civil rights protections for the former slaves, and those who sought to continue oppressing the former slaves. Chapter Seven also introduces a new civil rights struggle – female suffrage. Chapter Eight focuses on the late nineteenth century/early twentieth century time period, and it emphasizes [*580] the hyper-individualistic brand of liberalism that defined the Gilded Age, which perpetuated discrimination against blacks and women and even led to the resurgence of the Ku Klux Klan.

Chapters Nine through Twelve concentrate on the civil rights progress achieved since the 1930s. The more egalitarian period of the New Deal is the focus of Chapter Nine, which demonstrates how a more egalitarian version of the Constitution alleviated considerable suffering. However, white males enjoyed more New Deal benefits than non white-males. Chapter Ten examines the benefits that accrued to women and minorities as a result of World War Two. Chapter Eleven’s focus on the civil rights policies enacted during Lyndon Johnson’s presidency defines the most optimistic period. Chapter Twelve examines how Warren Court decisions led to advancements in civil rights for racial, ethnic, and religious minorities, as well as women. Chapter Thirteen examines some setbacks for the Warren Court decisions, but it strikes a hopeful note with its extensive discussion of LAWRENCE v. TEXAS (2003), which curtailed discrimination based on sexual orientation.

Overall, this work makes an important contribution to civil rights scholarship. Tsesis’ thesis that America’s liberal ideals have both hindered and advanced civil rights differs from other leading views on civil rights law. Specifically he disagrees with the process school, which contends that the Constitution and American law ensures only procedural fairness, and he disagrees with the perspective that American law does not grant minority rights, unless the majority community finds it advantageous to do so. Tsesis also distinguishes his work from neo-republicans who argue that liberal democracy is not central to American political philosophy. Shedding new light on the well-trodden civil rights scholarship can be a risky endeavor, but Tsesis succeeds. He carefully weighs copious evidence from numerous sources, not just Supreme Court cases and the commentary surrounding them, and he presents his findings in a well organized and easy to read fashion.

As a result, this work is useful for a variety of disciplines. Legal scholars will benefit from Tsesis’ contribution to our understanding of civil rights law, and they can use this work as springboard to debate the extent that American law has helped and/or hindered civil rights. Historians will appreciate the extensive research on the complicated history of civil rights. Even political scientists can benefit form Tsesis’ work. He demonstrates that law fundamentally shapes American policy, but he is not myopic in this approach because he recognizes that judges’ ideology, the political climate, activists, and interest groups are also central to the story of civil rights. Although not his direct intent, Tsesis does strike a balance between legal and extra-legal explanations of civil rights law.

Despite these important contributions, the book contains some notable drawbacks. First, contrary to the detailed analysis of the first twelve chapters, Chapter Thirteen is woefully inadequate. Tsesis lumps the post-Warren Court era, which is extremely crucial for civil rights, into a brief, sketchy twenty-four page chapter. This [*581] chapter leaves the impression that this period is a postscript of American civil rights history, when in fact it has been critical for racial and ethnic minorities, women, the GLBT community, the elderly, and the disabled.

A more vexing problem is that Tsesis’ conclusion is tacked on as a single paragraph at the very end of Chapter Thirteen. Tsesis devotes 300 pages to an in-depth, complex argument about civil rights law, which he then sums up in a quarter of a page. Readers, particularly graduate students and law students, require a more substantial summary of his argument and the implications it has for American law and politics. It is almost as if this final chapter and the insufficient conclusion contained within it were an afterthought. This drawback is unfortunate because it leaves the reader with a negative impression at the end of an otherwise outstanding piece of work.

Finally, Tsesis does not successfully accomplish his goal of focusing on all victims of discrimination, not solely African Americans. This is definitely a worthy goal because the African American experience is the most well-known and most studied civil rights history, but other racial and ethnic minority groups (Latinos, Asian-Americans, and Native Americans), women, the GLBT community, the elderly, and the disabled have all experienced discrimination, much of it severe. Therefore, Tsesis wisely considers those groups. The problem is that his treatment of these other groups is incomplete, especially in the first half of the book. For example, Tsesis does not discuss how American law and political ideology allowed for the forced removal of and genocide committed against Native Americans during the early nineteenth century. The bulk of Tsesis’ scant treatment of Native Americans focuses on the late nineteenth and early twentieth centuries, but he completely neglects this crucial aspect of American civil rights law. Likewise, on page 70 Tsesis discusses the Treaty of Guadalupe Hidalgo, which addressed the land Mexico ceded to the United States after the Mexican-American War. Tsesis correctly points out that the treaty was important for the expansion of slavery, but he never even mentions the more relevant point that the treaty led to discrimination against Mexican-Americans. Although the treaty promised to grant citizenship rights, including religious freedom, to the Mexicans who remained in the United States, the federal government and Western states openly violated this treaty and discriminated against Mexican-Americans. In short, Tsesis’ treatment of other aspects of discrimination is too spotty to be successful. He should have either expanded his analysis of the other groups, particularly Latinos and Native Americans, or confined his focus solely to African Americans.

These drawbacks not withstanding, I recommend this book to legal scholars, historians, and political scientists.

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

© Copyright 2008 by the author, Steven Tauber.