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FORUM: "POKING HOLES IN BALLOONS":
NEW APPROACHES TO COLD WAR CIVIL RIGHTS
Introduction
LAURA KALMAN
| "She was always poking holes in balloons," a friend said of the late and justly beloved Kathryn Preyer.1 These two outstanding articles, the first winners of the Preyer Competition, do that too. Together, they suggest that the Cold War affected domestic life in different ways than we have assumed. |
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Sophia Lee maintains that we should question scholars who say that the NAACP took "a conservative Cold War turn" away from workers' rights, ceded leadership to a conservative middle class, and shifted its attention to winning Brown after World War II. Rather, she contends, the NAACP continued working with local branches, many controlled by working-class members, to make collective working-class action possible. Specifically, the NAACP struck a blow for labor constitutionalism when it challenged African American workers' exclusion from skilled jobs and insisted on their right to join the unions that would give them a collective voice in the workplace. Its campaign to destroy the state action barrier and undermine the public/private distinction bore fruit. After two decades of litigation, in 1964 the National Labor Relations Board decertified the segregated Independent Metal Workers Union as the collective bargaining agent at the Hughes Tool Company, declaring an end to a half-century of Jim Crow unionism. More important, Lee points out, the NLRB ruled that a union's racial discrimination illegally violated the National Labor Relations Act. Hughes Tool, as Michael Botson has demonstrated, was the Brown v. Board of Education of workplace rights.2 |
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Scholars always hope to uncover new evidence and revise old understandings, but I think there is a deeper motivation behind Lee's work. Brown, once a feel-good story,3 has become a downer. As Reva Siegel more elegantly puts it, a narrative of redemption has become one of betrayal.4 For instance, Gerald Rosenberg has argued that Brown spawned "the hollow hope" courts could transform society;5 Mary Dudziak, that it reflected judicial and political anxiety that racism undermined the ability of the United States to make the case for the superiority of capitalism over communism;6 Michael Klarman, that it produced racial retrogression;7 and Derrick Bell, that the Court might better have decided to give teeth to "separate but equal."8 |
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Surely, it is partly as a response to the disillusionment with Brown (in addition to the sense, as Reuel Schiller points out in his fine comment, that the Brown furrow is overplowed), that a new generation has moved back to the period before Brown. The story many of us once told in our courses rooted the civil rights movement in Brown and the Montgomery Bus Boycott. We made the NAACP Legal Defense Fund the litigation arm of the movement and read the immediate prehistory of Brown onto the 1920s, 1930s, and 1940s. We anachronistically assumed that legal liberalism, with its emphases on integration and the Supreme Court as shield, always lay at the foundation of civil rights lawyering. We behaved as if civil rights lawyers always believed rights were the right remedy and that they would succeed if they just managed to make the South like the rest of the United States. |
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Recent scholarship outside and inside the law schools leaves the conventional story in tatters. Outside the legal academy, Glenda Gilmore and Jacquelyn Dowd Hall have uncovered a vibrant civil rights movement in the South during the period between World War I and the end of World War II.9 As Gilmore demonstrates, the left played a large role in the "first civil rights movement," which "redefined the debate over white supremacy and hastened its end."10 Martha Biondi has detailed the grassroots struggle against racial discrimination in New York City a decade before Brown.11 Arnold Hirsch,12 Tom Sugrue,13 Robert Self,14 and others15 have exposed the deep-seated segregation outside the South before, during, and after Brown. |
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Meanwhile, within the legal academy, Ken Mack has recovered the civil rights lawyers outside the NAACP, who were Marxist-influenced and viewed litigation as a complement to mass politics. He has also shown how Thurgood Marshall and others rewrote the NAACP's history in the context of the Cold War and Brown to say that the eyes had always been on the school desegregation prize.16 And Risa Goluboff has demonstrated that in the fifteen years prior to Brown, "the world of civil rights was conceptually, doctrinally, and constitutionally, up for grabs."17 That world included workers' rights and challenges to state-supported private segregation. According to Goluboff, however, after World War II ended, the anticommunist climate of the Cold War, their own relative indifference to economic inequality, and other factors sent NAACP lawyers off on an "increasingly single-minded" jaunt to topple state-mandated segregation that resulted in the "marginalization" of cases involving African American industrial workers.18 Like Mack's, Goluboff's voice is heavy with regret: Had the paradigmatic civil rights case come in labor, rather than education, Jim Crow might have been seen for what it really was—a system of both racial hierarchy and economic oppression. |
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Lee, however, maintains that the NAACP's labor constitutionalism remained intact despite the Cold War and led to a paradigmatic victory in NLRB case law against economic oppression in Hughes Tool. In addition to demonstrating Robert Carter's continuing commitment to workers' claims during the 1950s, she shines the spotlight on the work of the NAACP's labor secretary, Herbert Hill, a onetime Trotskyite turned from communism, though not the left, by "Stalinophobia" during the Cold War.19 Hill's long experience with racism in the labor movement left him permanently embittered—first, by unions, and later, by the labor historians he alleged downplayed or even denied "the racist practices of organized labor" and created a mythical past of "interracial solidarity" for "ideological" reasons.20 |
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Here is a fruitful controversy that should keep legal historians engaged and employed for years. Both Lee and Goluboff acknowledge that the NAACP's labor litigation continued after World War II. Citing Lee's work, Goluboff maintains that while the NAACP sometime assisted with litigation pushing labor unions to desegregate, "for the most part, cases in which discriminating unions were the target became less appealing as unions and the NAACP allied against a rising conservatism and a chilling Cold War."21 Both have the evidence, both weigh it differently, and the stakes—the nature of the impact of the Cold War on institutions and individuals—are high. |
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Was the reliance on litigation misguided? Hughes Tool, Herbert Hill mourned, proved a symbolic victory. "If Hughes Tool did not live up to its initial promise, however, it was not due to a failure of effort on the NAACP's part," Lee concludes. That Brown did not live up to its promise was not due to a failure of effort on the NAACP's part, either. As Schiller says, it is bracing to see legal historians acknowledge the administrative dimensions of legal liberalism, whose scope Lee forces us to reconceive. Yet—and here my critique would be one of legal liberalism, rather than Lee—was not legal liberalism still a "big nothing"?22 |
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Just as Lee forces us to rethink the interrelationship between the Cold War and civil rights, so Karen Tani leads us to reconsider the connection between the Cold War and the welfare state. Her discussion of Flemming v. Nestor highlights the confusion about the "welfare state." Tell undergraduates that their Social Security contributions don't go into an account with their names on it, and watch their eyes widen. We think of social insurance benefits as our property, just as FDR intended.23 But in Flemming, the Court refused to treat them as property or contractual rights. The case highlights the fact that, during the Cold War, "political repression often occurred through revocation of government-funded privileges and entitlements." That is, Tani says, McCarthyism worked not through threats of death and imprisonment, "but by removing security and dashing expectations—by taking away a job, revoking a license to work, or rescinding a promised old-age pension." |
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And from whom? Not a genuine threat to American security, but some nebish whose own wife declared his attention "nauseating" and seems only to have cared about getting her hands on his Social Security benefits. Mrs. Nestor, however, ran up against a provision of the 1954 amendments to the Social Security Act, enacted long after her husband had ceased to be a member of the Communist Party, permitting termination of benefits to an alien deported for participation in subversive activities. The Court upheld the provision in Flemming, with the majority declaring that earned Social Security benefits were neither property nor contractual rights. |
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With characteristic insight, Dan Ernst once predicted that it would take a younger generation to change our understanding of the Cold War.24 For better or worse, memory suffuses our histories of this period. Mention the fifties, a period I think of as extending from about 1947 to 1963, and I think of "duck and cover" drills. Perhaps because of that, I have been inclined to share David Abraham's interpretation of the outcome in Flemming as "Court rationalization of the persecution of a Communist who had been deported in 1956" and who had the chutzpah to insist on his right to government entitlements.25 |
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Tani, however, maintains that by 1960, "the climate of fear associated with Senator McCarthy had lifted. If most of the justices had taken a conservative stance on loyalty and security issues during the early Cold War period, by 1956 the Court had welcomed one of its most liberal members ever (William J. Brennan) and the 1956–1957 term became famous for limiting political persecution." In her hands, "[a] case that once fit with classic McCarthy-era controversies was by 1960 about guarding the boundaries of property, preventing leftist lawyers from carving out new rights, and respecting Congress as it grappled with the complexities of running a welfare state." |
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Perhaps. Still, no one knew how liberal Brennan would be at the time he was named to the Supreme Court: If anyone had guessed, Eisenhower would not have appointed him, and Brennan would not have been confirmed. And while the Court did stress the importance of restricting political persecution on "Red Monday" in Watkins,26Yates,27Sweezy,28 and Service,29 here were more big nothings. Scot Powe observes that "a close reading of the decisions revealed more lecture than law."30 Moreover, he reminds us that during the same term as Flemming, the Court handed down a number of decisions that "almost fully restored" the domestic-security program.31 "The fact that the Court is sustaining this action," Justice Black wrote of the majority's decision to deprive Fedya Nestor of his old-age benefits in Flemming, "indicates the extent to which people are willing to go these days to overlook violations of the Constitution perpetrated against anyone who has ever even innocently belonged to the Communist Party." As Tani shows, journalists treated Flemming "as just another [case] involving a 'Red,' not applicable to loyal Americans." She is right to say that Flemming was something more than a communist case, but it may have been a communist case as well.32 |
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Just as the Cold War may have played a role in explaining Flemming, so it had an impact on Charles Reich, one of the most brilliant legal liberals of the postwar period. Too many today ahistorically characterize Reich as a "sixties person." As Tani and Rodger Citron have demonstrated, nothing could be further from the truth. Even in the late sixties, when he was enjoying drugs but warning imbibers to experiment with caution,33 Reich remained the product of an earlier period. Tani's illuminating discussion of his seminal 1964 article, "The New Property," grounds it in the 1950s and the Cold War just where it belongs. It also recovers Reich as one of the rare law professors actually to have influenced public policy. Reich's "New Property" lay the groundwork for the 1970 case of Goldberg v. Kelly. There, Brennan drew on "The New Property" to hold that welfare rights more closely resembled "'property' than 'gratuity'" and that the state could not cut an individual's welfare benefits without first holding evidentiary pre-termination hearings.34 |
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But how much good would such a hearing have done Fedya Nestor? How much good did such hearings do anyone? A symbolic triumph for legal liberals, Goldberg v. Kelley may been another big nothing that simply exposed the emptiness of procedural justice.35 Will future historians brand Goldberg, Brown, and Hughes Tool monuments to the hollow hope that courts and/or administrative agencies can bring about meaningful social change? |
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Plenty of hot air still lifts aloft the balloons of the Cold War and legal liberalism. But these two wonderful articles by historians relatively unburdened by memory begin the job of piercing them. Somewhere, surely Kitty is smiling. |
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Laura Kalman is a professor of history at the University of California, Santa Barbara <kalman@history.ucsb.edu>. She thanks Dan Ernst, W. Randall Garr, Sarah Barringer Gordon, Sophia Lee, Karen Tani, and David Tanenhaus for their help with this introduction.
Notes
1. Tom Long, "Kathryn Preyer, 80; Scholar in History Taught at Wellesley," Boston Globe (April 21, 2005), C15.
2. Michael R. Botson, Jr., Labor, Civil Rights, and the Hughes Tool Company (College Station: Texas A&M Press, 2005), 4, 181; Brown v. Board of Education, 347 U.S. 483 (1954); Hughes Tool, 147 NLRB 1573 (1964).
3. Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Knopf, 1976).
4. Reva Siegel, "Equality Talk: Antisubordination and Anticlassification Values in Struggles over Brown," http://www.law.yale.edu/documents/pdf/EqualityTalk-Hein.pdf
5. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991).
6. Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000), 104.
7. Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 385.
8. Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (New York: Oxford Univesity Press, 2004), 21–27.
9. Jacquelyn Dowd Hall, "The Long Civil Rights Movement and the Political Uses of the Past," Journal of American History 91 (2005): 1233–53; Glenda Gilmore, Defying Dixie: The Radical Roots of Civil Rights, 1919–1950 (New York: W. W. Norton, 2008).
10. Gilmore, Defying Dixie, at 9, 6.
11. Martha Biondi, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City (Cambridge: Harvard University Press, 2003).
12. Arnold Hirsch, Making the Second Ghetto: Race and Housing in Chicago, 1940–1960 (Chicago: University of Chicago Press, 1983,1998).
13. Thomas Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton: Princeton University Press, 1996).
14. Robert Self, American Babylon, Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003).
15. Jeanne Theoharis and Komozi Woodard, eds., Freedom North: Black Freedom Struggles outside the South, 1940–1980 (New York: Palgrave Macmillan, 2003).
16. Kenneth Mack, "Rethinking Civil Rights Lawyering and Politics in the Era before Brown," Yale Law Journal 115 (2005): 256–354.
17. Risa Goluboff, The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007), 5.
18. Ibid., at 227, 218.
19. Nancy Maclean, "Achieving the Promise of the Civil Rights Act: Herbert Hill and the NAACP's Fight for Jobs and Justice," Labor: Studies in Working-Class History of the Americas 3 (Summer 2006): 17.
20. Herbert Hill, "The Problem of Race in American Labor History," Reviews in American History 24 (1996): 189, 196.
21. Risa Goluboff, "Let Economic Equality Take Care of Itself: The NAACP, Labor Litigation, and the Making of Civil Rights in the 1940s," UCLA Law Review 52 (2005): 1400; Goluboff, Lost Promise, at 226.
22. I had always assumed that the phrase, "big nothing," was invented by W. Randall Garr during the 1970s, but I may have been mistaken. See, e.g., Ingrid Schaffner, Bennett Simpson, Jutta Kother, Claudia Gould, Jo Baer, Gareth James, Mike Kelley, Yves Klein, Louise Lawler, Richard Prince, The Big Nothing (Philadelphia: ICA Philadelphia, 2004). My question here is intended to provoke. I have argued that legal liberalism was something more than a big nothing in Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996).
23. "We put those payroll contributions there," Roosevelt famously said of the tax on employee wages, "so as to give the contributors a legal, moral and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program." W. Andrew Achenbaum, Social Security: Visions and Revisions (New York: Cambridge University Press, 1986), 22–23.
24. Email, Daniel Ernst to Laura Kalman, August 4, 2006.
25. David Abraham, "Liberty without Equality: The Property-Rights Connection in a 'Negative Citizenship' Regime," Law and Social Inquiry 21 (1996): 24, n. 79.
26. Watkins v. U.S., 354 US 178 (1957).
27. Yates v. U.S., 354 US 298 (1957).
28. Sweezy v. New Hampshire, 354 US 234 (1957).
29. Service v. Dulles, 354 US 363 (1957).
30. Lucas Powe, Jr., The Warren Court and American Politics (Cambridge: Harvard University Press, 2000), 98.
31. Ibid. at 154.
32. 363 U.S. 622.
33. Rodger Citron, "Charles Reich's Journey from the Yale Law Journal to the New York Times Best-Seller List: The Personal History of the Greening of America" (forthcoming, New York Law School Law Review, TAN n. 81).
34. Goldberg v. Kelly, 397 U.S. 254, 261, n. 8 (1970). Of course, one can never be certain whether legal scholarship actually influences judges. See, e.g., Kalman, Strange Career, at 242–44. But it seems likely that Brennan regarded "The New Property" as something more than mere window dressing that enabled him to rationalize a result he wanted to reach. "The New Property" apparently helped him think his way to his destination.
35. Jerry Mashaw, "Administrative Due Process: The Quest for a Dignitary Theory," Boston University Law Review 61 (1981): 888; Mashaw, Due Process in the Administrative State (New Haven: Yale University Press, 1985), 26; Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007), 172–76. Reich himself said, "Judged by the experience of twenty years, the moderate due process, cost-benefit approach to individual security must surely be deemed a failure. We have given it a fair trial, and it does not work." Charles Reich, "Beyond the New Property: An Ecological View of Due Process," Brooklyn Law Review 56 (1990): 732–33.
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