Vol. 24 No. 9 (September 2014) pp. 485-489

CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE, by Megan Ming Francis. New York: Cambridge University Press, 2014. 208pp. Cloth $80.00. ISBN: 1-107-03710-7. Paper $27.99. ISBN: 1-107-69797-2.

BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY, by Joseph Fishkin. New York: Oxford University Press, 2014. 288pp. Cloth $35.00. ISBN: 0-199-81214-4.

Reviewed by Bailey Socha, Department of Political Science, Rutgers University.

Both Megan Ming Francis’ CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE and Joseph R. Fishkin’s BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY take up the question of social equality in novel and important ways. Francis’ historically-based investigation of the early role that the National Organization for the Advancement of Colored People (NAACP) played in developing twentieth century civil rights litigation tactics invites us to reconsider the framework scholars use to think about the civil rights movement. In a different mode of questioning, Fishkin’s analysis of some extant theories of equal opportunity leads him to develop his own theory with an eye to its legal and policy implications. While these books are very different from one another, each one of them presents a persuasive contribution to the literatures in which they are engaged.


CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE charts the emergence of the NAACP as a central actor in promoting civil rights for African Americans on a national scale. CIVIL RIGHTS reconstructs the institutional formation and coalescence of the NAACP around the single issue of lynching in 1909 and follows some of its most prominent members over a fourteen-year period in their efforts to secure federal protection against lynching. This single issue campaign culminated in the NAACP’s litigation breakthrough in the landmark decision MOORE v. DEMPSEY (1923) that shaped the path of future civil rights tactics, opening the door for a much broader range of civil rights protest in later decades.

Much of the data used to support and develop her argument in CIVIL RIGHTS results from original archival research, and Francis’ findings are sure to be of lasting value for scholars working in American political development, African American politics, and civil rights. Francis positions herself with those who challenge the dominant periodization of the civil rights movement as a post-World War II phenomenon. No doubt the richness of her archival sources fosters and supports her reframing of the genesis of the civil rights narrative away from the oversaturated study of BROWN v. BOARD OF EDUCATION (1954) toward the first quarter of the twentieth century when MOORE was decided in 1923. While the NAACP’s fight against racial violence during this period coincided and contributed to the national government’s power grabbing from the states, Francis is more interested in highlighting the contingency that marked the evolving strategy of the NAACP’s anti-lynching agenda. This is illustrated strongly by Francis’ four-sphere investigation of the NAACP’s campaign to quash the culture of racial violence throughout the United States via print media, then by turning to the executive branch, the legislature, and eventually the judiciary. In exploring one central organization during this tumultuous time in American history, Francis succeeds in forcing her reader to reassess the importance that the NAACP played in shaping criminal procedure jurisprudence and subsequent civil rights litigation practices. [*486]

The NAACP formed at a low point in American race relations and the organization’s membership was hotly contested from within the anti-lynching community. In pursuit of wide-spread support among the African American community and acceptance from white progressives, extreme voices on the anti-lynching spectrum were negotiated out of the NAACP’s worldview from the start. One notable exception was W.E.B. Du Bois who edited the NAACP’s magazine THE CRISIS. This politically moderate—although still quite diverse—leadership pursued a consciousness-raising campaign. The NAACP’s media-based initiatives rested on the organization’s belief that the persistence of lynching and racial violence were generally due to white ignorance about the nature of lynchings.

Typically, lynching was perceived (and defended) as a form of vigilante justice carried out by whites against an almost-always African American “rapist.” However, the reports and exposés circulated by the NAACP told a different story. Only one-fifth of lynchings were against a suspected rapist. Instead, lynching was carried out often under a pretense of suspicion, and it is not an overstatement to say that white suspicion was provoked merely by, in many cases, a man’s blackness. Lynching was a mechanism to enforce a caste-like social structure, but the question remained open whether this mechanism was an extra-legal or a systemic feature of criminal justice where it occurred.

The NAACP media campaign was successful in reaching broad audiences and counteracting the mythical connection between rape and racial violence. While reports were used in congressional hearings against lynchings and many papers across the country ran stories investigated by the NAACP, racial violence continued to burn across the nation after World War I. The Red Summer of 1919 marked one of the bloodiest seasons in American history, when at least 26 discrete race riots occurred around the country. It was clear to the NAACP after the Elaine race riot in 1919, out of which emerged MOORE v. DEMPSEY (1923), that lynching was not the result of individually-held irrational racism of the few, but was condoned by state and local governments as a legitimate arm of justice. Furthermore, it became clear, Francis argues, that a media campaign alone would not be enough to stem the tide of racial violence in the United States.

Throughout this period and with a growing sense of urgency, the NAACP courted the favor of Presidents Wilson and Harding. Francis details how the organization was met with moderate success, less with Wilson than with Harding. During both terms of the Wilson administration the NAACP vice-president and secretary achieved only tepid results after years of correspondence and petition. One statement from the President against lynching delivered to Congress in 1918 came at a time when Wilson’s own advisers were Southern white supremacists who supported segregation of national government offices.

Three years later, the NAACP was met with greater success in their association with President Harding. Harding’s initial ignorance on the subjects of lynching, the NAACP, and African American issues, was quickly overcome. Francis shows that Harding became an outspoken supporter of the NAACP agenda. In a direct statement to Congress the day after an anti-lynching bill was introduced, Harding stated that lynching ought to be abolished and made illegal. Francis turns her attention next to the role that the NAACP had in supporting and publicizing the Dyer Anti-Lynching Bill through its passage in the House and its ultimate death on the Senate floor in 1922. Through the NAACP’s role as a lobby organization, Francis argues that it was further able to influence public and elite opinion that helped influence the Court’s decision in MOORE the following year.

Next, Francis investigates the central role that the NAACP played in bringing MOORE to the Supreme Court in 1923. This is the natural center of the book as a whole, and through it the reader begins to see a clear picture emerging in favor of Francis’ argument. It was not that the NAACP had necessarily devised litigation as a clear and likely mode of pursuing its anti-lynching agenda. Instead, the organization’s breakthrough emerged from the conflict between [*487] states’ and federal interpretations of due process and its acute relationship to the fourteenth amendment in the postbellum South. Caught up in the chaos of this large-scale conflict as well as the raging racial and economic turmoil of 1919 were twelve African American men condemned to die in a case of legal lynching in Helena, Arkansas.

In the aftermath of the Elaine Race riot, scores of African Americans were rounded up by white law enforcement. While upwards of 250 African Americans had been killed by white mobs during the riot, the arrests were made in connection with one white man’s death. In the end, after testimony was obtained by torture, twelve men were sentenced to die by a mob-dominated trial that lasted less than an hour. Walter White of the NAACP conducted an on-the-ground investigation during the trial and published his findings in a Chicago newspaper. Subsequently, the NAACP contracted Scipio Jones and funded the litigation process through the state level courts. Six of the defendants were freed because of a clerical error. The other six men in MOORE were still condemned to die under the Arkansas Supreme Court’s view that there existed necessary correctives to ensure due process of the law. Finally, a federal judge agreed with the NAACP legal defense that there were grounds for an appeal. The Court overturned the earlier precedent of FRANK v. MAGNUM (1915) and stated that a mob-dominated trial was illegitimate even if it occurred in the guise of formal due process. Instead, due process was given a fuller, more substantive interpretation. Francis concludes her argument with the assertion that this marked change from FRANK was due in large part to the NAACP’s activism elsewhere during the period. Francis concludes the early success the NAACP had in MOORE v. DEMPSEY (1923) shaped the kinds of tactics used in later civil rights strategies.

CIVIL RIGHTS deserve praise for its original scholarship and insight into an early chapter of civil rights activism. It rightly emphasizes the role of citizen organizations like the NAACP that help engender popular support and exert pressure on elites in a literature that is often focused on elite decision makers themselves. But while it is clear that the NAACP played an important role in MOORE and to a lesser extent in the executive and legislative branches, whether the NAACP actually caused attitudes and outcomes to shift in the way Francis suggests is less certain. The degree to which African American interests represented by the NAACP may have coincided with a President’s desired image or the Supreme Court’s agenda to wrest power from the states remains to be seen at the end of CIVIL RIGHTS. It may be that there is a significant gap between the interests of those who pursue civil rights protection at the national level and the interests and agendas of the elites who take up those challenges. That said, such an examination is the subject of another book, another discussion. In any event, the measure of a book’s significance is determined by the quality and novelty of the questions it raises. For that reason CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE will be with us for a long time.


Joseph R. Fishkin’s book BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY reimagines how we might conceptualize equal opportunity in a more comprehensive, pluralistic way. BOTTLENECKS breaks with the existing literature on equal opportunity by broadening our thinking about the scope of equality beyond the familiar flash points of affirmative action. Fishkin approaches questions of merit and opportunity through a rich examination and critique of existing theories of merit, human development, and the role of luck underlying much of our language used to discuss opportunity. Using cutting edge research from the fields of psychology, experimental biology, and philosophy of science, BOTTLENECKS provides a compelling view of how opportunities profoundly shape merit. Fishkin advocates for a pluralistic model of promoting developmental chances while preserving individual differences in society. The book concludes with an engaging overview of how conceptualizing restricted opportunities as [*488] bottlenecks can be loosened to promote a plurality of choices for all individuals.

The argument in BOTTLENECKS is presented in four distinct phases. First, the author reviews some popular models for equal opportunity, most notably the Rawlsian and starting gate opportunity theories, with special attention paid to the concepts of talent and human development. Marshaling recent psychological data in his analysis of human development, Fishkin argues that ability is thoroughly bound up with the concrete opportunities and experiences provided to us. On these grounds, BOTTLENECKS advocates for a pluralistic conception of opportunity, one that prioritizes the development of human capacity at any time of life. Fishkin argues that opportunity pluralist policies will correct these bottlenecks and demolish the barriers that constrain possibilities surrounding the kinds of paths individuals might choose for themselves. Finally, Fishkin uses his diagnostic tool for seeking out, and ameliorating, bottlenecks in a series of social applications, including class, education, race, and gender.

Fishkin conceives of a “bottleneck” as a narrow institutional structure through which individuals must pass to reach benefits and opportunities on the other side. College is one example, as may be gender, age, or geography. For example, to the extent that one’s role (or potential role) as a child’s mother may demote or disqualify a worker there exists a bottleneck. The pervasiveness of this restriction throughout the job-opportunity structure determines the severity of the bottleneck. The important part of this framework is that it does not approach restrictions and exclusions from a social or political experience of historically disenfranchised groups but highlights instead the intersection of individuals and institutions.

BOTTLENECKS discusses some of the existing theories of opportunity and criticizes them all as either unrealizable or unattractive. Rawls’ theory of Fair Equality of Opportunity, a theory of natural talents, luck egalitarianism, and Dworkin’s theory of opportunity are problematic because they all rely on the assumption that talent and capacity are either innate or reliant on the insurmountable force of chance. In developing a new groundwork for understanding human development as wholly bound up with opportunities for development, Fishkin engages in biological and psychological research. This second chapter houses the conceptual core of Fishkin’s argument and it is the strength of the book. Fishkin argues that human development as the expression of genes or natural talents never manifests without an environment. “All traits and behaviors are 100 percent genetic and 100 percent environmental in origin.” This interaction of demonstrated capacity as resting on concrete opportunity means that our current ways of conceptualizing merit in institutional contexts like college admissions, the hiring process, even the kinds of educational opportunities presented to us as children, cannot and should be thought of as remedial measures. While the chances for developing a “flourishing life” are never totally equal, Fishkin argues that a vision of pluralistic opportunities is more desirable than a vision of totally equal sameness.

This book’s target audience is interdisciplinary: BOTTLNECKS addresses itself to public law scholars, political theorists, policy makers, and institutions looking to refine the way they structure opportunity. Examples of class, education, race, gender, and workplace bottlenecks are reviewed. After discussing each kind of bottleneck, Fishkin provides some insights into the ways that opportunity pluralism would ameliorate the difficulties found in each case. For example, in discussing Sweden’s policy move in the 1990s to make parental leave non-transferrable between parents, Fishkin shows that the government’s attempt to promote gender equality in the workplace actually led to a severe gender bottleneck. Although the policy of parental leave was formally open to both men and women, Fishkin highlights the division between government employees who are mostly female and private sector workers who are mostly or “ideally” male. In the former case, many employees are offered and utilize generous parental leave agreements, while in the latter case, the work culture discourages the utilization of any parental leave regardless of gender. This creates a situation in which women, but also men, who have chosen to take on the [*489] role of a parent are more likely to select a career in the government exclusively for benefits extraneous to the job. From the perspective of opportunity pluralism, the only solution to this problem is to break down the norm of the “ideal” i.e. male worker in all workplaces through public policy and restructuring the way work is compensated in firms.

Fishkin’s project is overtly engaged in normative theories of opportunity. With that in mind, it is perplexing why his overview ignores alternative theories of human flourishing that extend beyond those in a liberal market society. For example, the relationship between opportunity pluralism and its real-world applications in Fishkin’s argument is complicated by some assumptions of an individualistic rather than communitarian social structure. While the book does advocate for loosening bottlenecks that unduly stress the disadvantaged, its theory does not question whether certain economic arrangements like wage labor are normatively necessary, let alone viable for a flourishing life. Related to this, BOTTLENECKS does not assess whether social roles are interactive and structural, rather than derivative of personal choice in an open marketplace. There may be good arguments why such a paradigm is superior to others, but Fishkin leaves this justification underdeveloped.

In spite of this question mark, Fishkin’s book is important for the ways in which it challenges our vocabulary of merit, talent, and chance, pushing us toward a language that promotes opportunity irrespective of “dessert” and away from arguments that defend accumulated advantage. It is a valuable resource for students interested in a concise and truly interdisciplinary approach to normative theoretical investigation. For these reasons, BOTTLENECKS ought to be incorporated into our extant discussion of equal opportunity.

For as much as Francis’ and Fishkin’s books differ in their conceptual and theoretical approaches, taking them together highlights the richness and diversity found within the domain of public law scholarship today. Both of these authors strengthen the field by expanding the frontiers of what we may know of our world by challenging the narratives through which we approach it.


BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

FRANK v. MAGNUM, 237 U.S. 309 (1915)

MOORE v. DEMPSEY, 261 U.S. 86 (1923).

© Copyright 2014 by the author Bailey Socha.