We Shall Overcome: A History of Civil Rights and the Law (review)

We Shall Overcome is a comprehensive history of Civil Rights and the Law in the United States from the revolutionary era to the present. The author focuses on how those who have been discriminated against used the law to gain justice and freedom. He also draws inferences concerning the continuing struggle for civil rights.

The book is a fine syntheses of the evolution of legal developments concerning Native Americans, sex equity, including discrimination based on sexual orientation, and discrimination based on national origin and language. However, most of the discussion concerns African Americans about whom Tsesis rejects the claim, of Michael Klarman and others, that Brown had little inspirational relevance to the subsequent civil rights movement.

The book cites most of the relevant secondary literature but curiously overlooks work that previously covered much of the ground including my own Black Resistance/White Law (1971, 1994) Sandra Van Burkleo's "Belonging to the World" Women's Rights and American Constitutional Culture" (2001) and Joan Hoff's, Law, Gender and Injustice: A Legal History of Women, (1994).

The overall importance of the book depends on the persuasiveness of the author's analysis and theory.

He believes that the persistent expansion of liberty and equality have been integral to American identity. The Constitution, through provisions such as the Equal Protection Clause, obligates the federal government to protect individual liberties as beneficial to the general welfare. The Constitution, contrary to Herbert Wechsler, John Ely and other "neutral principles" proponents, is not a procedural device concerned only with fairness in process but advances an obligation to produce substantive protection of fundamental and basic interests. Procedural consistency, neutral principles, or the preservation of democratic neutrality cannot justify the infringement of life, liberty, and property.

The author insists that rights in the Bill of Rights are not only incorporated through the 14th Amendment but through an expansive interpretation of unenumerated Constitutional protections. Sometimes as with the abolition of slavery, the protection of fundamental rights requires curbing individual liberty to promote the common good.

Because interpretation is permitted and required, each generation can reevaluate the treatment of the subordinated and what remedies to apply. Progressive interpretation results when coalitions gain popular support for the sake of national improvement and fairness.

Unlike Derrick Bell and Mary Dudziak, Tsesis believes that change comes, not because of interest convergence, but as a result of the actions of many committed people and organizations at great personal risk. He does not reckon with the need for some convergence, even if only to restore order, for the protestors to succeed.

Tsesis also disagrees with Roger Smith's view of the mixed nature of American national purpose. He sees unalloyed liberal democracy as found in the Preamble to the Constitution and the Declaration of Independence as truly embodying the American creed. The Constitution was designed to enable the gradual shedding of prejudices in order to fulfill the creed.

Slavery, lynching, Indian Removal and Japanese internment, for example, were failures to live up to the creed and were distorted uses of the law. Accepting the creed is essential to Tsesis' belief that law should be used to achieve social reform.