by Kenneth W. Mack. Cambridge: Harvard University Press, 2012. 330pp. Cloth $35.00. ISBN:9780674046870.
Reviewed by Dale Rogers Marshall, President Emerita, Wheaton College, MA. Email: dalermarshall [at ] comcast.net.
In 1932 Willie Brown, a black youth, went on trial for the sexual assault and murder of a seven year old white girl in Philadelphia, defended by the path-breaking black lawyer, Raymond Pace Alexander. Kenneth Mack argues that Alexander’s defense of Brown was an important turning point in the creation of the African American civil rights lawyer because up until then black defendants wanted white lawyers to represent them since law was a white man’s profession.
Kenneth Mack’s interesting book is a collective biography of the professional lives of a small number of African American civil rights lawyers during the era of segregation. Professor of Law at Harvard with degrees from Harvard Law School (1991) and Princeton (1996, History PhD), Mack has done extensive research using the lawyers’ private papers, oral interviews, memoirs, court cases and a wide range of other relevant sources. He brings to life their struggles – their victories and defeats - in this definitive source for scholars assuring that these representatives of the race are not forgotten.
Mack argues that the black civil rights lawyers were crucial to the transformational change from slavery and segregation to freedom and equality. Their fights in the courts for equality laid the groundwork for the later civil rights movement. The small group of lawyers selected by Mack include: John Mercer Langston, Raymond Pace Alexander, Charles Houston, Thurgood Marshall, Loren Miller, Sadie Alexander and Pauli Murray.
The story starts with the black civil rights lawyers’ professional ancestor, John Mercer Langston (1829-1897), who rivaled Frederick Douglass for preeminence in black politics. Like Douglass and Booker T. Washington, Langston was the son of biracial parents. After graduating from Oberlin, Langston became the first black admitted to the bar outside of New England. To be admitted to the Ohio bar, he had to convince the panel of judges that he was, as near as possible, one of them. When Langston went before the panel of judges to break the color bar, the judges realized that he was “indistinguishable from the best white applicants who could appear in their court, save for his somewhat darker complexion.” The chief judge asked Langston to stand up, “then assessed his light brown skin and thin features, and without further comment swore him in as a white lawyer.” (p.15)
Mack argues that Langston was a “representative” colored man, a term that was widely used in the latter part of the 19th century and early 20th, referring to individuals who exemplified the “best the race had to offer” (p. 20). This use of the term “representative” is not the one many of us political scientists use; Mack uses the term to mean exemplary. To be [*263] representative men the early black lawyer had to show white lawyers, judges, and jurors that they were equal to white lawyers. Mack contrasts this use of the term to mean “exemplary” with the use which became more common later to mean “authentic” referring to someone who reflects the larger racial group. Mack’s main argument is that tension developed over time between the strategy of being exemplary representatives (which seems like W.E.B.Dubois’s Talented Tenth though Mack doesn’t make that connection) and the strategy of being authentic representatives.
The black lawyers believed that their success as representatives of the race could change the worst aspects of Jim Crow. They thought that their achievements in the courtroom would provide a powerful refutation of the proposition that blacks lacked the capacity and character necessary for equal rights.
Throughout the book Mack gives compelling examples of the horrifying treatment of black lawyers which, while not a surprise to those of us old enough to remember those times (for me it was in the segregated nation’s capital), still make one’s blood boil. Black lawyers experienced almost daily insults, humiliations, exclusions, and reminders of their subordinate status just trying to board a trolley, or to see a movie or to be served a sandwich. Mack gives an example of two married black lawyers trying to go to the theatre with another black couple in Philadelphia. When their male friend who was a very light went to pick up the tickets for the four of them, there was no problem. When the four actually went to the performance, they were told they had the wrong tickets and were turned away. They improvised a response, one speaking Spanish, one French, and one German. The manager who couldn’t understand a word said, “they’re not niggers” and let them in (p.34).
Mack argues that the courtroom became a unique kind of public space for black lawyers which remade racial boundaries. The turning point came when Raymond Pace Alexander argued the Willie Brown case and the subsequent appeal. Alexander (1897-1974) had developed a reputation as an excellent litigator while running a successful black law firm in Philadelphia. The son of a former slave who ran a livery stable, Alexander excelled in high school and graduated from the University of Pennsylvania and then Harvard Law School. Upon entering the courtroom, Alexander faced a hostile space including a biased judge, and an all white jury because, as he expected, all blacks were struck from the jury. The judge interrupted Alexander’s closing to challenge Alexander’s argument that Brown had been arrested and beaten because of race prejudice and to criticize other aspects of the defense. The jury too rejected Alexander’s argument finding Brown guilty.
Mack says that a marked change occurred between the trial and the appeal eight months later. An important factor in this change was that Alexander had built bonds with the lawyers and judges, developing a sense of fraternity that crossed the color line. Their respect for Alexander’s handling of the initial trial was a validation of Alexander’s place in the profession. The state supreme court overturned that the jury’s verdict saying the judge’s disparaging comments were in violation of the state constitution. The retrial ended by Brown pleading guilty in exchange for a life sentence which [*264] Brown’s supporters saw as a great victory and which catapulted Alexander into national prominence.
Positive changes were also occurring in Southern courtrooms which had been segregated, with seating, restrooms, and refreshment facilities marked black and white. It had been so rare for black lawyers to defend blacks in Southern courtrooms that members of the local community would turn out to watch. But later cases such as the one where Charles Houston’s all black team backed by the NAACP defended George Crawford against a murder charge, showed that black and white lawyers could work together as equals in the courtroom. After one of the jury selection commissioners said that the low intelligence of potential black jurors precluded them from the jury, Houston asked him to read the names on the list of potential jurors. When he sat in total silence, it became obvious that he could not read. Faced with repeated evidence of Houston’s brilliance, white witnesses began to call him “sir” in answering his questions. Mack ends this example by saying, as Houston gained respect that would be denied him elsewhere in the country, whites and blacks broke with tradition to sit side by side in the courtroom.
When Houston taught at Howard Law School (the largest producer of black lawyers) his most famous student was Thurgood Marshall (1908-1993), no relation to this reviewer. Mack says that Marshall was best at getting a few high-profile cases that built his reputation with both whites and blacks. Mack argues that whites wanted someone who worked within the legal system, thus showing that it was fair; blacks wanted someone whose acceptance by whites gave them the power to call attention to racial inequities. Achieving both, Marshall had stunning victories including desegregating the University of Missouri Law School by showing that paying tuitions for blacks to go to out of state law schools violated the 14th amendment.
Two thematic chapters break from the roughly chronological organization of the book, to trace the professional careers of three black women – Jane Bolin, Sadie Alexander (married to Raymond), and Pauli Murray. While Mack points out parallels with the black male lawyers’ experiences, he argues that their struggles to figure out where they fit in the fraternity of black male lawyers would eventually help create sex discrimination as a modern category of American law.
In a Chapter titled “Things Fall Apart” Mack says that in the thirties a new younger generation of black lawyers was in active revolt against their elders. Loren Miller, Ben Davis, John P. Davis and others said it is not possible to represent your race – to be authentic – if you are just like white lawyers. The death sentences of eight of the nine Scottsboro Boys stimulated protests and violence against the black lawyers involved. Verdicts in others cases in which black lawyers were involved were similarly challenged as legal lynchings and frame-ups. Loren Miller said his fellow black lawyers just represented the self-interested middle class not the authentic voice of the whole race.
In post war America, black lawyers continued to make breakthroughs as they achieved many public roles and then Kennedy opened new opportunities to another generation of black lawyers. However they were caught in what Mack calls a people’s revolution. The power [*265] and initiative had shifted from the representative man to representatives seen as authentic, representatives seen as closer to the people themselves.
Mack has tackled an ambitious task and done it very well. However given the complexity and broad scope of the topic, the argument sometimes gets lost in the details. It is hard at times to follow the many different threads of the story. The black lawyers often lived a long time; their lives took many different twists and turns, as lives do; their cases took many different twists and turns over many years, as important cases do. So they don’t fit neatly into the chronologically organized chapters.
Scholars who analyze sweeping societal change, like the impact of black civil rights lawyers on racial equality, typically face difficulties in establishing the connection between actions and outcomes. Mack is no exception. While there is much room for disagreement about the weight to give the different factors, there should not be disagreement that Mack’s work makes a major scholarly contribution to the study of the movement toward racial equality in the United States. The book provides a wealth of interesting details about how black men and women lawyers persevered in the face of stupendous obstacles to help bring about major progress toward racial equality. Their stories remind us that we are in their debt for laying the groundwork for great progress which had been greatly delayed.
Issues of exemplary representatives versus authentic representatives have been back in the spotlight during President Obama’s presidency. Some have asked if Barack Obama is really black, or is black enough. In Mack’s terms the question could be rephrased as, is Obama simply an “exemplary representative” of the race without being an “authentic representative”? Mack concludes that the question of authenticity is an enduring one which continues to be asked of African Americans who seem unlike those around them. Mack’s work demonstrates convincingly that this question “encapsulates something seemingly unavoidable in the American politics of race” (p.269).
Missouri ex rel. Gaines v. Canada 305 U.S. 337 (1938).
Copyright by the Author, Dale Rogers Marshall.