Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff [at] jsums.edu
George T. Lovell’s book, This is Not Civil Rights, challenges much of the conventional wisdom surrounding citizens’ use of “rights talk” in the United States, making a compelling case for the need for greater research in how typical Americans use the language of rights to push for societal and governmental change. This book is not an empirical test of the author’s claims, but instead may be best perceived as an intriguing attempt at theory building. His data set is a sample from a small cache of letters found buried in the National Archives, written to the Franklin D. Roosevelt administration during the transition from the Great Depression to World War II.
Lowell carefully analyzes the claims documented in these letters in the central chapters of his book. He engagingly relates the wide variety of claims made in correspondence with the federal government. Violations of free speech, challenges to the fairness of governmental procedures, concerns related to property violations, experiences of racial discrimination and lynching, and claims for economic justice are the primary categories of contentions found in Lovell’s sample. Often poignant and pained, these grievances were mailed to the Justice Department’s nascent Civil Rights Section (CRS), representing various regions and addressing a wide variety of personal and communal concerns. Created in the late 1930s, the CRS was established to prosecute crimes that infringed on civil rights and liberties. As part of the Roosevelt Administration’s attempts to politically engage the masses, the CRS responded to all public correspondence to itself and to the president, the Justice Department, Eleanor Roosevelt, other executive agencies and offices, and sometimes even members of Congress. Lovell’s data set demonstrates that the office typically replied to all such forwarded correspondences, although remedies were rarely provided.
Like all segments of the Roosevelt Administration, the CRS navigated between the two primary segments of the fragmented coalition that formed the Democratic Party: black and white northern liberals and southern white supremacists. This meant that the question of federalism,as throughout most of U.S. Civil Rights history, drove the decision making regarding CRS intervention. The limited statutory and constitutional jurisdiction given the federal government after the Supreme Court’s initial interpretation of the Fourteenth Amendment and the federal statutory protections of the newly freed peoples meant that the federal government could only intervene when states violated the civil rights of individuals. Violence enacted by private [*569] actors like the Ku Klux Klan was immune from federal remedy. The CRS attempted to challenge this construction through such novel, yet ultimately impotent legal theories, as “deliberate inaction of state officials to prevent lynchings as a form of state action” (p.47). Inconsistency from the federal courts and conflicts within the bureaucracy leads Lovell to conclude that in this period litigation did not push rights expansion; however, citizen claims, administrative policies, and selective prosecution did promote such change. However, a lack of administrative commitment from the Justice Department allowed for bureaucratic resistance (e.g., FBI investigators or federal prosecutors often rebuffed CRS request for engagement).
For Lovell, the key evidence of this ambiguity is the CRS’ consistent contention of a “lack of federal jurisdiction” to investigate or prosecute the injustices regularly documented by its correspondents. While the CRS almost always included a statement indicating that legal limits made it impossible for the department to help, their replies never included the kind of information that complainants needed to understand or challenge the department’s legal position. When the department claimed categorically that it lacked jurisdiction over the reported case, it did not provide a general account of what did qualify for federal jurisdiction. Lovell believes that citizens comprehended that these responses were discretionary decisions and that these correspondents were not convinced by such governmental claims of incapacity. He finds that citizens’ use of “legalese” was often heightened in challenge to the CRS’ communication.
While by 1939, the nation had begin discussing and investing in entitlement programs, Lovell finds that citizens’ assertions of economic rights generally exceeded contemporary policy.
People often made very expansive claims of economic or other entitlements that went well beyond the New Deal. Such claims sometimes reflect the dynamic popular political culture of that era, which gave more prominent place to oppositional voices advocating for economic populism than our political culture does today (p.15).The broader scope for debate regarding the economic rights of people was clearly connected to the political climate; for Lowell, these public aspirations for an expanded constitution is an affirmation of the vigor of representational democracy.
The dominant critique of citizen’s reliance on rights language is found in Mary Ann Glendon’s Rights Talk: The Impoverishment of Political Discourse (1991) which raises concerns regarding the “pathological and extravagant rights talk that dominates American discourse [making] it more difficult to find policy compromises and to build meaningful communal rights” (p.10). For critics such as Glendon, this emphasis in a democratic society substitutes the inherency of competing rights, which must be negotiated, in favor of a perspective favoring individual entitlements. Other scholars assert that a common consequence of an excessive reliance on personal rights is an over-emphasis on the courts as a means of [*570] making political change and a truncation of the rights deemed worthy of governmental protection. Lovell believes that his sample demonstrates a radically different finding than the current literature would predict. The authors of these letters asserting civil rights claims clearly demonstrate an understanding of conflicts between competing interests, other community needs, and their own perceived injustice. The language utilized in these claims includes constitutional and legal rights, but also communal values and personal responsibility. While the authors of the letters were desperate for help and used legal language to make their claims, Lovell finds they also demonstrate a clear understanding of the political discretion of the officials from whom they sought help as well as their own limited options.
More generally, the letters show that people who invoked law in support of their claims were not in the grip of law’s ideological messages. . . . Nor did the boundaries of official law put an outer limit on writers’ demands. Many writers rejected official law’s claim to be the standard for legitimate, just, or moral outcomes. Some offered alternative visions of justice that they believed the law should bend to fulfill. In the face of sometimes startling indifference, legal discourse became a vehicle for defiantly asserting individual dignity or directly expressing resistance to authoritative renderings of law (pp.184-185).Lovell also believes that his work similarly extends Kimberlé Crenshaw’s (1988) argument in which she criticizes those who dismiss the resilience evidenced by the rights talk uttered by political minorities because they ignore the oppressive environments, which limit political recourses of victims of injustice. By using a case study method, Lovell’s letters reveal numerous examples of police brutality, governmental corruption, and limited financial resources that hinder pursuing alternatives to federal government intervention. While a very small percentage of Lovell’s letters came from African-Americans or mentioned race (8% of sample), the majority of correspondents were poor, uneducated, and desperate for federal assistance.
Lovell realizes that the limited number of these letters that have survived the regular purges of files in these departments only to be discovered in the National Archives means that there can be no generalizable claims made from this sample. He is correspondingly very cautious in reporting his findings. While the appendices clearly identify from which collections he selected the 879 cases to code and evaluate, he does not provide the criteria by which the sample was selected, identify how he randomized his choices, nor does he supply his coding sheet for the reader. These are odd omissions in light of his careful discussion of methodology and regular referencing of both.
The author does a meticulous job of demonstrating the significance of this study by illuminating the gaps he identifies in the legal discourse literature. However, the limits of the case study approach and his small sample means this research cannot fill these gaps independently. Lovell’s [*571] claims of uncovering new ways of understanding citizens’ reliance on legal discourse is clearly limited by the lack of a representative national sample, and the narrow date frame his sample encompasses. However, by demonstrating the use of rights talk in 1939, prior to the federal courts’ adoption of systemic language of individual civil rights and fifteen years before the Warren Court, he introduces new research questions worthy of investigation.
This examination of the legal and rights language used by average citizens, who are frequently perceived to be apolitical – because they are too often excluded from voting, have limited to no financial resources, and are not intimately engaged in the organized social movements of the day – help provide a more sophisticated understanding of the position the law plays in the lives of Americans. Lovell makes a very compelling argument regarding the political nature of their contribution.
Crenshaw, Kimberlé Williams. 1998. “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law.” Harvard Law Review 101: 1331-87.
Glendon, Mary Ann. 1991. Rights Talk: The Impoverishment of Political Discourse. New York: Free Press.
Copyright 2012 by the Author, Michelle D. Deardorff