Crossroad Blues: Civil Rights Paths Taken and Forsaken

When the legendary bluesman Robert Johnson recorded "Cross Road Blues" in 1936, he could not have known that the legal meaning of civil rights was about to be "standin' at [a] cross road" of its own. In The Lost Promise of Civil Rights, a book as powerfully wrought and painfully wrenching as Johnson's song, Risa Goluboff surveys the scene from this cross road from roughly the late 1930s through the early 1950s. During this time, "the world of civil rights was conceptually, doctrinally, and constitutionally up for grabs"—or, to phrase it somewhat differently, since "the unwieldy thing called Jim Crow" was a "multifaceted" phenomenon, the "destruction of Jim Crow" was "open to a number of understandings of that mission" (pp. 5, 239, 127, 11). Among these, the understanding of, and challenge to, Jim Crow reflected in Brown v. Board of Education "represented only one possible" angle of attack (p. 4). Moreover, when viewed from the cross road where Goluboff fixes her attention, the path that pointed to Brown was not the one that "appeared the most likely" to be followed (p. 9). Nor was it the one that held the greatest promise for removing the economic nooses that hung around the necks of African American workers such as the Mississippi Delta plantation cotton-picking parents of Robert Johnson for whom Jim Crow was a Gordian Knot of "racial oppression and economic exploitation" (p. 7). What those civil rights roads not taken were, why they were forsaken, and how the "strategic litigation choices about which cases to pursue and which to avoid" led to Brown and away from the other civil rights roads that held greater hope for remedying the "harms that black workers faced"—these are the questions that The Lost Promise of Civil Rights tackles (pp. 13, 269).

Goluboff begins by tracing the contours of the different approaches to civil rights that commenced when the Lochner era in United States legal history concluded in the mid-1930s. After three decades of striking down laws it deemed to encroach upon individual rights to property and contract, such as the maximum hour legislation at issue in Lochner v. New York in 1905, the Supreme Court reversed course and began upholding kindred laws passed by Congress in response to the Great Depression. Though this "revolution in constitutional law" deposed the old order, it did not immediately usher in a new one (p. 9). Instead, a number of contenders vied for the throne. Initially, during the second half of the 1930s, the "most likely" successor to the "Lochnerian regime" emphasized New Deal labor and economic rights—to work, to unionize, to receive minimal subsistence when unemployed or retired (pp. 9, 34). Into this mix, the arrival of World War II then added "claims to racial equality" to form "the most politically promising civil rights issues of the 1940s" (p. 9). The domestic V side of the African American Double V campaign involved the efforts of African American workers to secure "protections for labor and economic rights" which "white workers had already begun enjoying" as a result of the New Deal (pp. 264, 37). Tackling "economic discrimination" remained a "key civil rights issue in national politics" into the early 1950s (p. 42). By then, a third possible future for civil rights had emerged. It sought to tease apart the "complex interaction of economic rights and racial rights" in order to isolate race as "a unique doctrinal category unto itself" (pp. 43–4). Though this approach would culminate in Brown, whose long shadow would subsequently obscure the others, it was in the 1940s a "less obvious" road for civil rights to venture down than the rest (p. 44).

With the meaning of civil rights "up for grabs," African American agricultural and industrial workers attempted to seize it. The complaints they filed with lawyers in the Department of Justice's Civil Rights Section (CRS) and the NAACP's Legal Defense and Educational Fund (NAACP) are...