In her groundbreaking article, “The Long Civil Rights Movement and the Political Uses of the Past,” Professor Jacquelyn Dowd Hall urged historians to challenge the narrow, master narrative of the civil rights movement. Movement histories had been too focused on the period from Brown v. Board to the Voting Rights Act, noneconomic issues, and charismatic Kings and not the ordinary people who made the movement possible (Hall Reference Hall2005: 1234). Hall’s generation of historians introduced much-needed and even vital historiographical interventions, and yet for Professor Dylan Penningroth this revision is still not enough.
Before the Movement reminds readers that the concept of civil rights has a much longer and more complicated history. In 1866, Congress enacted the first federal civil rights law. It declared that “all persons within the jurisdiction of the United States shall have the same right …to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property… as is enjoyed by white citizens…” Many today might associate civil rights with dramatic, twentieth-century confrontations in streets and courthouses, but initially civil rights “were ‘the ordinary rights of a freeman,’ as one of the Framers of the Fourteenth Amendment put it in 1866 – rights of everyday use” (xviii).
This massive study of civil rights relies on more than 14000 cases drawn from county courthouses across five states and Washington, D.C. However, as Penningroth conducted research, he soon realized that cases generally did not disclose the litigants’ races. He then combed through Census records to determine the litigants’ races and a new world of law opened for him. His rich archival record revealed that ordinary Black people knew something about the law. Although Black people were denied formal educational opportunities, many had what they called “goat sense,” a colloquialism meaning legal commonsense. They exercised their newfound civil rights in diverse ways, but as Penningroth shows, most early uses of civil rights were not frontal attacks on white supremacy. Black women exercised their civil rights when they contracted to provide elder care in exchange for future property and used divorce proceedings to renegotiate the terms of their labor. Black churchgoers used civil rights to establish trustees who handled employment contracts and church mortgages and if a congregation fractured, to sue each other over ownership of church property. Black elites relied on civil rights to establish associations like Black business leagues, colleges, and fraternal orders. Penningroth’s attention to the interiority of Black life is remarkable. Moreover, although anti-discrimination was obviously important to Black people, protecting civil rights – the laws governing contracts, property, and association – became foundational to their daily experiences.
Penningroth shines as a storyteller, but the book’s star is perhaps brightest in his intimate and critical accounts of his family’s property ordeals. Black poverty was all-too-common in the decades following emancipation but not universal, and Penningroth beautifully weaves accounts of his landowning family into the book showing the variety in Black legal life. In 1883, Penningroth’s formerly enslaved great-great-great uncle and aunt purchased 279 acres in Cumberland County, Virginia, mostly from his former boss then cash-strapped and looking to sell land. He details how his family members, like others throughout the book, navigated land purchases, auctions, fraud, and bitter disputes over heir property. The rise of Black property-ownership during Reconstruction and Jim Crow, and its attendant challenges, are underappreciated but must too be remembered as part of the story of civil rights.
Inasmuch as Before the Movement seeks to transcend the “long civil rights movement” story, the narrative moves forward by cleverly illustrating how the First Reconstruction and its aftermath supplied the Second Reconstruction with a vocabulary and legal frameworks to attack second-class citizenship. Black lawyers recognized how private law concepts could inform public law cases. The NAACP’s approach to the doll tests in Brown, now a staple in civil rights history, was illustrative. The lawyers reasoned that segregated schools were like car accidents in that they both damaged Black children.
Penningroth demonstrates conversely how conceptions of civil rights threatened Black activism of the mid-twentieth century. Joseph H. Jackson, president of the National Baptist Convention, the nation’s largest Black religious institution, sought to keep Black churchgoers from putting their faith into action at lunch counters because of his beliefs flowing from certain postbellum notions of civil rights. For Jackson, sit-ins violated the property rights of storeowners. Jackson was not alone in this view. At the beginning of the sit-ins, Thurgood Marshall, “Mr. Civil Rights” himself, reportedly stated that he was not going to represent “‘a bunch of crazy colored kids who violated the sacred property rights of white folks’” (294). These students would, nonetheless, change Marshall and the nation’s stances on the sanctity of property rights, and their activism, like Black people with the Civil Rights Act of 1875, spawned the passage of the Civil Rights Act of 1964.
Penningroth’s sweeping narrative arc concludes in the twenty-first century when he began teaching at Berkeley Law. Students complained that race was absent from the core curriculum. It was a topic relegated to optional courses on “minority” rights. However, as Penningroth’s research demonstrated, race was actually central to key contract and property law cases. Black litigants’ identities had been whitewashed from casebooks in a manner like he had seen in county courthouse records. Moreover, from its inception civil rights was rooted in contract and property law. These revelations of how race is quietly present in cases already taught seem to become more significant each day as national debates rage over whether teaching about race should be added to or distract from core curricula.
One of Before the Movement’s most fascinating themes is introduced early in the book. Penningroth writes, “White people recognized Black rights because life’s ordinary business could not go on if whites could not make contracts and convey property to Black people” (xxii). If anything, Penningroth, ever delicate in narrative, might have pressed this point more forcefully. Whites needed to forge a symbiotic relationship with Blacks at times for markets to function properly. This paradigm offers tremendous insights about why Whites, even those not committed to racial justice, might be willing to respect Blacks’ rights in other areas of law.
Before the Movement’s thoughtful revision of civil rights historiography, seamless storytelling, and deep understandings of Black legal lives across time and space make this book an instant classic.
