This week we are sharing an episode from our companion podcast, Live at the National Constitution Center. In this episode, prize-winning historians Kate Masur, author of Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction, and Dylan Penningroth, author of the new book Before the Movement: The Hidden History of Black Civil Rights, explore the central role of African Americans in the struggle for justice and equality long before the Civil Rights Movement of the 1950s and 1960s. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Today’s episode was produced by Tanaya Tauber, Lana Ulrich, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Tomas Vallejo, Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Kate Masur is the board of visitors professor of history at Northwestern University. A finalist for the Lincoln Prize, she is author and editor of acclaimed books on the Civil War and Reconstruction. Her recent book, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction, was a finalist for the Pulitzer Prize in History.
Dylan Penningroth is a professor of law and history at the University of California–Berkeley, where he currently serves as associate dean of the program in jurisprudence and social policy. He has held fellowships from the National Endowment for the Humanities, the National Science Foundation, the Stanford Humanities Center, and the MacArthur Foundation. His new book is Before the Movement: The Hidden History of Black Civil Rights.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (2022)
- Dylan Penningroth, Before the Movement: The Hidden History of Black Civil Rights (2023)
- Article IV, Section 2: Movement Of Persons Throughout the Union, Privileges and Immunities Clause, National Constitution Center’s Interactive Constitution
- 14th Amendment Privileges or Immunities Clause, National Constitution Center’s Interactive Constitution
- Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (2003)
- Kate Masur, An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C (2010)
- Brief of Professors of History and Law as Amici Curia in Support of Respondents, Students for Fair Admissions, Inc. v. Harvard and UNC
Excerpt from Interview: Kate Masur discusses whether the framers intended the Constitution to be interpreted as colorblind.
Jeffrey Rosen: Based on your definitive studies of the Privileges and Immunities Clause, is the Supreme Court correct when it says that the Constitution is colorblind and allows for no racial classifications in the affirmative action cases? Or was Justice Ketanji Brown Jackson correct?
...
Kate Masur: And one of the questions, as you imply is because this court is quite interested in what they call original meanings, original understandings of these constitutional measures, did the people who passed and adopted the 14th Amendment think that it needed to have what they call a colorblind interpretation? That is to say that it required not only no discrimination, does it sort of know zero attention to race, right? Everything from now on has to be completely kind of neutral in regard to race.
And I was part of a group of people who actually supplied an amicus brief for that case. And so I gave this a lot of thought and did quite a bit of research on the particular question, right? And the particular question is, at, at least from a historical perspective, is if you go back to that time, and you look at the people who supported passage of the 14th Amendment at that time, was there much in, or anything in the historical record, either to say that they required a colorblind interpretation, or to say that they were open to the idea that there still could be race-conscious ameliorative policies. That is to say, policies that were race-conscious designed to uplift or kind of aid African-Americans in particular as slavery was being abolished.
What we found is that these Republicans were quite comfortable with race-conscious ameliorative policies. Anyone who has looked at the 14th Amendment knows that the committee where it was, the language was hashed out, did not keep very detailed records. And so there's a kind of lacuna in the records where we might wanna go to find you know, well, what did that committee literally say about these issues? Everyone knows that, that those records are not there. So one of the things that we and other people interested in this question have to do is look at surrounding discussions of other kinds of policies.
And the evidence is clear, and I can give particular examples, that these folks actually were supportive of race conscious ameliorative policies when it came to thinking about civil rights themselves, when it came to thinking about education in particular. And when people at the time complained and said, "You have this Freedmen's Bureau, you're giving special privileges to African Americans." Or, you know, "You have this law that sounds like it's an equalizing measure, but it's really giving black people these special rights." I mean, even Andrew Johnson, the President of the United States said that at the time. He said that in a veto message of the Civil Rights Act of 1866, Congress overrode those vetoes.
Every time those arguments were made, they were met with a majority in Congress who said they disagreed and wanted to go forward with race conscious ameliorative policies. And so the evidence is quite clear that they were having conversations that were very similar to the ones we have now about affirmative action, and that the majority will, which was reflected in statutes passed by Congress and in the 14th Amendment itself said, "We are comfortable with these race conscious ameliorative policy." So that's what we said in the brief, and the brief is available, if anybody wants to take a look at it.
Excerpt from Interview: Dylan Penningroth summarizes the takeaways from his new book.
Jeffrey Rosen: Dylan Penningroth, last word to you in this great discussion as you sum up the teachings of your wonderful new book what should all of us learn from the hidden history of the Black Civil Rights Movement?
Dylan Penningroth: I guess I'd point to two things that stand out for me after doing the research for this book. I guess the first one is just a really deep sense of appreciation for the diversity of black life that goes hand in hand with, is intertwined with the commonality of racial oppression. That I think is something that I was interested in from the start, and my research left me with an even deeper appreciation for. I guess the second one is I've come away with, and I hope that readers will find that the law, when we think about this thing called the law, that it's not just one thing.
It often tempting, especially when thinking about black people and law to fall into the trap of thinking that it's all about the Supreme Court. What's the court gonna do next week? Will congress you know, ever pass a law on the subject? But it's not, the law is not just one thing. And I think that's something that Kate's book brings out beautifully. The law is Brett Kavanaugh and it's also your local county judge.
It's also true, I think that the law enables many things and closes off other things. So, for example, the law enables white supremacy, but it also enables, as I show in my book, a black patriarchy. Black men at various points in the story take advantage of their rights, their civil rights, to impose their vision of freedom on black women who are after all the majority of members in most churches at that time. And so, you get these really interesting tensions that recur again and again.
And then I guess the last lesson that I take from this is that white supremacist violence, like we saw committed against George Floyd has been with us in this country since before its inception. And I think what's really striking is that black people throughout this history have been using rights in the face of that violence. That is to say that black people using law has and can coexist with police violence, white supremacist violence committed by the state. And I think that it's really important for us to stop and ask ourselves why? Why did African Americans turn to law again and again in the 1830s, the 1880s, the 1960s?
I think we should be asking ourselves, why is it that African Americans turn so often to law, to rights? And I think it's especially important because we're now confronted with a former president who has quite explicitly tried to weaken American's collective faith in the rule of law.
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