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Response to Ken Mack—and New Questions for the History of African American Legal Liberalism in the Age of Obama

Published online by Cambridge University Press:  18 August 2010

Nancy Maclean
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Extract

I so appreciate Professor Mack's generous comments on Freedom Is Not Enough—and even more his critical engagement with it. It's an author's dream to have a leading scholar in a related field read with such care and insight, and I am very grateful for this opportunity to converse about the intriguing issues he has raised. I first encountered some of Ken's articles about civil rights lawyering before Brown after Freedom Is Not Enough was in press, and I thought then that my discussion of the earlier history would have been enhanced by them because his portrayal was so rich while our perspectives on the relationship between law and activism were so congruent. Now, reading his comments on the work as published, I wish I had studied law with him! His challenges would have made it a better book.

Type
Legal History Dialogues
Information
Law and History Review , Volume 27 , Issue 3 , Fall 2009 , pp. 671 - 679
Copyright
Copyright © the Board of Trustees of the University of Illinois 2009

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References

1. For more on the complexities of Rustin's situation in these years, see D'Emilio, John, Lost Prophet: The Life and Times of Bayard Rustin (New York: Free Press, 2003).Google Scholar

2. See, for example, for the North , Biondi, Martha, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City (Cambridge: Harvard University Press, 2003)Google Scholar , and for the West , Self, Robert O., American Babylon: Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003)Google Scholar.

3. On Hill's work, see the posthumous special issue entitled “Up for Debate: Assessing the Legacy of Herbert Hill,” Labor: Studies in Working-Class History of the Americas, 3 (Summer 2006), 11–39CrossRefGoogle Scholar . The sociologist Anthony Chen helpfully demonstrates how the obstacles congressional conservatives posed to fair employment legislation and the restrictions they built into the Civil Rights Act's Title VII all but made hard affirmative action inevitable in his 2002 dissertation, revised as The Fifth Freedom: Jobs, Politics and Civil Rights in the United States, 1941–1972 (Princeton: Princeton University Press, forthcoming July 2009)Google Scholar.

4. For a contained case study of this impact, see my article “The Civil Rights Act and the Transformation of Mexican American Identity and Politics,” in Berkeley La Raza Law Journal 18 (2007), 123–34Google Scholar , in the forum “More Than Whiteness: Comparative Perspectives on Mexican American Citizenship from Law and History,” edited by Marc Simon Rodriguez.

5. Quoted in MacLean, Nancy, Freedom Is Not Enough: The Opening of the American Workplace (Cambridge: Harvard University Press, 2006), 256.Google ScholarPubMed

6. Quoted in Kotz, Nick, Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America (Boston: Houghton Mifflin, 2005), 135Google Scholar . Kotz's fascinating account of the pitched battle over the Civil Rights Act and razor-thin victory provides a helpful starting point for legal realist analysis along the lines Ken's comment invites.

7. Ibid., 98. For a rare and foundational examination, see Watson, Denton L., Lion in the Lobby: Clarence Mitchell, Jr.'s Struggle for the Passage of Civil Rights Laws (Lanham, Md.: University Press of America, 2002)Google Scholar.

8. For more on the flaws of that critique, see MacLean, Nancy, “Southern Dominance in Borrowed Language: The Regional Origins of American Neo-Liberalism,” in New Landscapes of Inequality, ed. Leonardo, Micaela di and Collins, Jane (Santa Fe: School of American Research, 2008), 24–25Google Scholar.

9. The discussion here concentrates on employment; for education, see the pathbreaking work of Serena Mayeri, in particular , “The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse,” Yale Journal of Law & the Humanities 18 (Summer 2006), 187–272Google Scholar.

10. On how Murray is looming larger as a pioneer on many fronts, see the symposium, , “Dialogue: Pauli Murray's Notable Connections,” Journal of Women's History 14 (Summer 2002), 54–87Google Scholar ; and her featured place in Gilmore, Glenda, Defying Dixie: The Radical Roots of Civil Rights, 1919–1950 (New York: W. W. Norton, 2008)Google Scholar.

11. See Ransby, Barbara, Ella Baker and the Black Freedom Movement: A Radical Democratic Vision (Chapel Hill: University of North Carolina Press, 2005).Google Scholar

12. See especially chapters 6, “The Sacrifices of Unity,” and 7, “Making a Way Out of No Way,” whose titles convey the toll, of Too Heavy a Load: Black Women in Defense of Themselves, 1894–1994 (New York: W. W. Norton, 2009), 176–256Google Scholar.

13. Quoted in Freedom Is Not Enough, 119.

14. Baker, Carrie N., The Women's Movement Against Sexual Harassment (Cambridge: Cambridge University Press, 2007).Google Scholar

15. On Motley, see MacLean, Nancy, “Using the Law for Social Change: Justice Constance Baker Motley,” Journal of Women's History, 14 (Summer 2002), 136–39CrossRefGoogle Scholar . Motley's rarely consulted papers are housed at the Sophia Smith Collection at Smith College.

16. For this revelation, I am indebted to sociologist Nicki Beisel, who learned of this neglect in the course of her pathbreaking current research on African American liberals' pioneering yet all-but-forgotten role in advocating abortion legalization in the pre-Roe years. Personal email communication, January 6, 2009.

17. See Ann Orloff, Farewell to Maternalism? State Policies, Social Politics and Mothers' Employment in the U.S. and Europe (forthcoming).

18. United Nations, “Beijing Declaration and Platform for Action,” from the fourth United Nations Conference on Women (New York: United Nations, 2001).Google Scholar