Law and History Review

Legal History Dialogues

Bringing the Law Back into the History of the Civil Rights Movement

Kenneth W. Mack

It is a pleasure to comment on Nancy MacLean's hugely important book Freedom is Not Enough: The Opening of the American Workplace as an example of what I might call “bringing the law back in” to the history of the civil rights movement. A generation ago, the idea that law needed to be introduced into this history would have seemed nonsensical. At that time, law provided one of the central touchstones in the historical narrative of the struggle for racial equality in American life. Scholarship in this area built on C. Vann Woodward's pioneering work on the rise of Jim Crow, which itself was written shortly after Woodward's participation in the Brown v. Board of Education litigation. The dominant narrative began with the legal construction of Jim Crow in the late nineteenth century and continued with the founding of the NAACP. Other actors came along at various points in the story, prominent among them New Deal–era racial liberals, World War II–era activists, midcentury social scientists, Southern civil rights leaders and movements, and eventually black power. The end point was marked by the litigation and legislative victories of the 1950s and '60s, which finally wrote back into law what had been taken away by segregationist white Southerners and a compliant Supreme Court in the late nineteenth century. The implicit methodological take on law was that state and federal statutes, as well as court decisions, provided an important impetus, or at the very least a validation, for racial change—first for white Southerners as they created the Jim Crow legal regime and later for segregation's opponents as they reinscribed racial equality onto the core narrative of American life.

Kenneth W. Mack is a professor of law at Harvard Law School <kmack@law.harvard.edu>.

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