The Un-Ouch: Enthusiastic Review of Alexander Tsesis’s We Shall Overcome: A History of Civil Rights and the Law

Today, my co-blogger Gerard flagged an “Ouch” review of Laura Kalman’s new book.  This brought to mind a deservedly glowing review of Alexander Tsesis’s We Shall Overcome: A History of Civil Rights and the Law.  Tsesis’s book traces the history of legal efforts to achieve civil rights for all Americans, beginning with the years leading up to the Revolution to our own times.  In the Law and History Review (August 2010), George Rutherglen writes:

Alexander Tsesis surveys the entire history of civil rights, from its origins in the reaction to slavery to its latest manifestations in federal legislation and constitutional decisions.  All of this is covered in considerable detail, with many references to original sources, and  a wealth of quotations from the participants themselves. No less because of its clear-eyed view of the pervasiveness of discrimination in American life, We Shall Overcome is all the more remarkable for the resolute optimism that it brings to the prospect of achieving equality through law.  It is a rich and valuable introduction to the history of civil rights, one which expresses a welcome enthusiasm for its subject and a wholehearted endorsement of the aims and vision of the civil rights movement.

The historical narrative begins, as it must, in the contradictions of the Revolutionary era, when the ideal of equal rights for all collided with the reality of slavery for blacks, hostility toward Native Americans, and discrimination against outsiders generally. The process of overcoming these original sins from the founding of the Republic occupies the central chapters of this book, on the sectional conflict over slavery that led to the Civil War and Reconstruction, and on the growth of the regulatory state from the New Deal through the civil rights era. So much is standard for a history of civil rights, but Tsesis makes a distinctive contribution in putting these achievements in the perspective of what came before, what happened after, and what remains unfinished. The author is particularly adept at noticing tensions within the civil rights movement, for instance, in analyzing both the connections and the inconsistencies between abolitionists and feminists, and in particular, the divisions over how hard to push for women’s rights in the aftermath of the Civil War (144-53). The contentious history of civil rights has not been confined to conflict between those within the movement and those outside it, but also between those who advocate for equality along the different dimensions of race, national origin, sex, religion, and lately, age, disability, and sexual orientation.
The central struggle that Tsesis recounts, nevertheless, is the one between advocates for reform, typically a few heroic individuals, and the forces of racism, sexism, and discrimination of all kinds. The former are the well-known abolitionists, Frederick Douglas, William Lloyd Garrison, even John Brown; the triumphant and tragic politicians, Abraham Lincoln and Lyndon Johnson, and the relatively neglected Harry Truman; the lone dissenter, the first Justice Harlan, and the great Chief Justice, Earl Warren; the pioneering feminists, Elizabeth Cady Stanton, Susan B. Anthony, and Sojourner Truth; and the leaders of the civil rights movement, Martin Luther King and Thurgood Marshall. Many other figures find a role in the detailed narrative in this book. Arrayed against them could be found an equal number of villains, but the author locates the sources of opposition in regional, traditional, and chauvinistic habits of thought and ways of life (130, 172). The moral demands for equality must contend, on the author’s view, with ingrained patterns of discrimination, against which they have made great strides, although in fitful and incomplete steps.
This history does not purport to offer a definitive explanation of the dynamics of civil rights reform and lawmaking. It is, instead, a deeply informed survey of the major ideas, events, and personalities that shaped these efforts. Yet the model of historical explanation implicit in the book’s narrative must give us pause. For all its depth and nuance, the book attributes progress fundamentally and repeatedly to the heroic efforts of a few dedicated reformers and their followers, inspired by a moral vision, who must struggle against the inertia of social inequalities deeply embedded in existing institutions. This is, at many levels, a moving story and a salutary lesson in the sacrifices needed for fundamental reform. Yet Tsesis sometimes seems to stack the deck against lasting progress by depriving it of the social and political resources necessary to prevail against entrenched interests and attitudes. His account of the adoption of the Fifteenth Amendment reveals his partiality for moral motivations.
Against the view that the Republican Party supported the amendment primarily to preserve its hold on national power, he asserts that “it took devotion to the cause of freedom to pursue a voting rights amendment” (107). No doubt this is true, but as he acknowledges, the devotion had to have an institutional base to become effective. Where was it to be found? He posits “an impulse to equality” without quite giving it a source in the shifting configurations of popular consciousness, political groups, and social classes. He argues for the force of principles of equality by pointing to the unpopularity of black suffrage in the North, leading him to conclude that the Fifteenth Amendment undermined overall support for the Republican Party, even if it temporarily bolstered it in the South. He then goes on to criticize the amendment as “a valiantly flawed effort” because “it lacked any prohibition against the use of property and literacy voting qualifications” (108, also 142). It also, of course, failed to enfranchise women. Yet if the amendment was a political liability as it was framed, how could it possibly have been passed in a broader and more effective form? None of this is to deny the sorry history of nullification of the amendment, and the refusal of the Supreme Court and Congress to enforce it until the civil rights era, which this book recounts in admirable detail, giving statistics on registration and voting and the specifics of legislation and judicial decisions. Tsesis nevertheless leaves unanswered the basic question: What changed in the social reception of the moral argument over the hundred years between ratification of the Fifteenth Amendment and its effective enforcement?
In the space of a little over 300 pages, it would be too much to expect the author to answer all such questions while still providing a comprehensive survey of over 200 years of civil rights struggles in law and politics. Alexander Tsesis gives us his well-informed and passionately argued views, which are a welcome antidote to the general skepticism of reform through law so prevalent today. For this, and much else, we should be grateful.

 

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