Dylan Penningroth’s stunning new book, Before the Movement, will change the way that historians and legal scholars think and teach about the lives of Black Americans and how they conceptualized and appealed to the law. In accessible, lively prose, Penningroth argues that from the antebellum period through the Civil Rights Era, Black Americans possessed, understood, and exercised their civil rights. In the process, they shaped American law and jurisprudence in unappreciated ways. By exploring the way that “Black people used law in their everyday lives,” this book challenges conventional definitions of “civil rights”; it overturns the traditional chronology and narrative of the Civil Rights Movement; and it reveals how even during the so-called nadir of race relations, Black Americans regularly and successfully deployed and defended their legal rights in ways that mattered to them (xiv). We conventionally think about civil rights as falling within the scope of public law and Fourteenth Amendment jurisprudence related to equal citizenship. But Penningroth reminds us that for much of American history, civil rights were simply the “rights that a court could protect” and were constitutive of freedom as a legal status (xxiii). They included the right to contract, property, and association. In this rendering, we find civil rights in areas of private law – defined in state statutes, claimed in agreements between individuals, and protected in state courts. We ignore this reality to our detriment.

To make his case, Penningroth first had to find Black people in legal records that did not necessarily identify them by race. He amassed an archive of over 14,000 civil cases from five states and the District of Columbia. After cross-referencing with census records, he determined that 1,500 of them included Black litigants. From these, a picture of how Black Americans used the law emerged. To be sure, legal scholars have explored postemancipation conceptions of civil, political, and social rights and explained how they led to the doctrine of separate but equal. By focusing on civil rights as “the rights of everyday use,” however, Penningroth shows how even in the decades following the collapse of Radical (Black) Reconstruction, Black people exercised rights in important ways. For example, in tort cases – in which a person is injured by someone else – Black litigants forced the concession that their lives mattered, even if their social equality could be denied. Black people sued negligent businesses for punitive damages when they were physically injured, assaulted, or even insulted. Pursuing antidiscrimination or equal citizenship claims made no headway in the Jim Crow era, but “winning a tort suit showed the world that Black people’s lives had value, that whites might have to pay for what they did.” This result, Penningroth claims, constituted a “recognition of whites’ legal responsibility to African Americans” and an admission that they had some rights that all were bound to respect (154).

Especially in the last two chapters, Penningroth demonstrates how “The Movement” emerged out of the legal culture already central to Black life. “[T]he rights of everyday use were everywhere in the freedom struggle [and] civil rights lawyers and activists counted on the fact that ordinary Black people knew something about the law” (257). Contrary to the story of Movement activists coming to the South to liberate, we find Black southerners using their legal knowledge to help make activism possible in the first place. It was no coincidence that activists sought out Black property owners as their hosts. In one example, Mississippian Laura McGee warned the local sheriff trying to stop a Student Nonviolent Coordinating Committee (SNCC) rally on her property that he was trespassing and in fact, owed her protection from white supremacists “shooting up her home” (334). It was her rights as a property owner that gave her license to make such demands and that compelled the sheriff to leave her alone.

Ultimately, Before the Movement is both a critique and a call to action. Penningroth demonstrates that the conventional eyes-on-the-prize narration of Richard Kluger and others occludes the important foundation of civil rights that existed prior to, and alongside, the legal campaign to overturn separate but equal. Remaining wedded to this story, compelling though it is, “keeps us from seeing the full range of what civil rights did in the past – and what they might do now” (302). Law schools have compounded the problem by holding fast to two persistent “legends” that Penningroth urges us to overcome. First, tacitly accepting that Black people are “marginal to ‘real law’” and irrelevant in the “‘core curriculum’ centered on contract and property law” has made it harder for students to see themselves in their coursework and for all of us to “confront and critique” the way law continues to perpetuate “racial inequality” (341). Second, we must consider that questions about race, abolition, and civil rights have long been central to private law and should not be relegated to public law discourse. With private law added to our considerations of civil rights, historians can no longer assume that the years between the end of Reconstruction and the successes of the Civil Rights Movement were defined solely by Black rightlessness and abjection.

Penningroth’s decision to use his family history as an anchor for his narrative proves both powerful and compelling. It palpably connects us to the larger point of the book – that civil rights enjoyed by Black Americans before the Movement mattered, shaping relationships among family members and community members and improving the welfare of future generations. With oral histories and personal records, Penningroth proves that “if we want to understand Black people’s demands for the rights that America denied them, we must pay more attention to how they talked about and used the rights that were not denied them” (350).