Become a Patreon!


Excerpted From: James W. Fox Jr., Black Progressivism and the Progressive Court, 130 Yale Law Journal Forum 398 (January 6, 2021) (88 Footnotes) (Full Document)


JamesWFoxJrThe constitutional jurisprudence of the Progressive Era Supreme Court contains deep tensions. On the one hand, the Court developed a robust doctrine of substantive due process and liberty of contract in cases such as Lochner v. New York and Adair v. United States, battling what the Court saw as unjust protectionist, prolabor “class legislation.” On the other hand, in cases such as Plessy v. Ferguson, Williams v. Mississippi, and Giles v. Harris, the Court eviscerated the racial equality purpose and meaning behind all three Reconstruction Amendments, providing constitutional cover for the emergence of a legally mandated, state-based apartheid system. Yet, in the 1910s, the Court issued a series of opinions supporting African American rights claims, including Bailey v. Alabama, Guinn v. United States, and Buchanan v. Warley. What was going on?

Lochner and Plessy each became core parts of the constitutional anticanon in the second half of the twentieth century, but scholars have struggled to explain the connections between these seemingly disparate doctrinal paths. Libertarians and Lochner revisionists have argued that liberty-of-contract ideas represented an important counter to the racist doctrines supporting segregation and were themselves important supports for the pro-rights decisions of the 1910s. Modern progressives, on the other hand, argue that Lochner and Plessy are of the same cloth, both reflecting the Court's commitment to an economic and social status quo that was based on the twin pillars of antilabor capitalism and white supremacy. For these scholars, the pro-rights decisions are at best insignificant blips that did nothing to change racist laws and practices.

While each of these views contains some explanatory power, they overlook a critical counter perspective on the nested problems of class and race. That perspective, deeply rooted in abolitionism and Reconstruction, was not directly present in the opinions of the white elites on the Court and so is not “doctrinal” in the classic sense. It was, however, very much part of the counterpublic discourse of African American writers and activists, including journalists T. Thomas Fortune and Ida B. Wells and scholar-activist W.E.B. Du Bois. This critical discourse articulated a broad civil, political, and economic rights agenda that cut across white supremacy and capitalist classism. It championed the essential connections between educational, political, social, and economic equality and access. With themes that sound the same chords currently struck by the Black Lives Matter movement, Black progressivism repeatedly connected oppressions across spheres, including criminal justice (peonage, lynching), education, property ownership and wealth creation, and political power, to advocate for systemic changes. As these writers argued, white supremacy controlled both the employer-based polices of liberty of contract and the labor movement's efforts to battle for living wages and working conditions. From this perspective, the law's failure to repudiate white supremacy meant that neither Lochnerism nor its prolabor alternative could actually succeed in implementing the ideals of the Reconstruction Amendments and would, unless countered and overturned, continue to oppress Americans across both race and class.

This Essay traces some of these themes in four important texts of the Black Progressive Era: Thomas Fortune's Black and White, published in 1884; Ida Wells's The Reason Why, published in 1893; and two initial statements of the Niagara Movement from 1905 and 1906. The themes we see being developed in these texts give us some idea of the Black progressive critique of both Jim Crow and antilabor capitalism, made at the same time that the Court was moving in the other direction. I will conclude with some ideas about how this counter-narrative can reshape the way we today think about the Court's pro-rights decisions of the Progressive Era.

[. . .]

Of course none of these parallels should be asked to bear too much of the load of our current efforts to create racial justice in law. Current conflicts, doctrines, and structures have a multivariate history, some of which trace back to the Progressive era and before, and some of which have newer manifestations. Still, the critiques presented by Black Progressives should help us remain vigilant about how racial oppression and economic and class dynamics have a long history of reinforcing and reconstructing each other. White wealth was built in large part by enslaved and segregated Black labor. The contemporary Black Lives Matter civil-rights movement is not just an extension of the resistance to organized and governmental violence that Wells and others presented over 100 years ago. It is also an argument about how economic exclusion and oppression--the lack of employment and educational opportunities, unsafe and unaffordable housing, lack of access to medical care--interlock to maintain racial injustice, of how the injustice itself is simultaneously denied by and essential to the dominant political and legal ideologies. Absent full attention to racial justice as a primary goal, other ideologies, whether libertarian or communitarian, liberal or conservative, leftist or reactionary, are going to leave undone the equality mission embedded in the Reconstruction Amendments, like the prolabor, probusiness, or Progressive ideologies of the early 1900s. But just as importantly we can also see how current doctrines can be rhetorically turned in the direction of justice, as Wells did by identifying segregation as itself the worst type of class legislation and as the NAACP did in using Lochner Court's libertarianism as one of its tools to challenge Jim Crow. Resistance to the Court's current doctrines must involve both the development of alternative doctrinal paths and the reconfiguration of those paths the Court has already taken, and they must, like Wells, Fortune, and Du Bois, always keep one eye on the lived experiences of inequality that show us why the work is important.

Professor of Law, Stetson University College of Law.

Become a Patreon!