This Is Not Civil Rights: Discovering Rights Talk in 1939 America

Overview

Since at least the time of Tocqueville, observers have noted that Americans draw on the language of rights when expressing dissatisfaction with political and social conditions. As the United States confronts a complicated set of twenty-first-century problems, that tradition continues, with Americans invoking symbolic events of the founding era to frame calls for change. Most observers have been critical of such “rights talk.” Scholars on the left worry that it limits the range of political demands to those that ...

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This Is Not Civil Rights: Discovering Rights Talk in 1939 America

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Overview

Since at least the time of Tocqueville, observers have noted that Americans draw on the language of rights when expressing dissatisfaction with political and social conditions. As the United States confronts a complicated set of twenty-first-century problems, that tradition continues, with Americans invoking symbolic events of the founding era to frame calls for change. Most observers have been critical of such “rights talk.” Scholars on the left worry that it limits the range of political demands to those that can be articulated as legally recognized rights, while conservatives fear that it creates unrealistic expectations of entitlement.
 
Drawing on a remarkable cache of Depression-era complaint letters written by ordinary Americans to the Justice Department, George I. Lovell challenges these common claims. Although the letters were written prior to the emergence of the modern civil rights movement—which most people assume is the origin of rights talk—many contain novel legal arguments, including expansive demands for new entitlements that went beyond what authorities had regarded as legitimate or required by law. Lovell demonstrates that rights talk is more malleable and less constraining than is generally believed. Americans, he shows, are capable of deploying idealized legal claims as a rhetorical tool for expressing their aspirations for a more just society while retaining a realistic understanding that the law often falls short of its own ideals.

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Editorial Reviews

Charles R. Epp
“A masterly and potentially pathbreaking analysis of American ‘rights talk,’ a much-maligned but largely misunderstood phenomenon. Using a trove of letters written in 1939 and 1940 by ordinary Americans to the Justice Department’s then-new Civil Liberties Unit, George I. Lovell shows that many of the standard claims about American rights talk are wrong; beyond the fervent hope for a rights-regulated society lies a worldly wise realism about rights’ limited capacity to bring about real change.”
Keith J. Bybee
“With This Is Not Civil Rights, George I. Lovell makes an invaluable contribution to the study of ‘rights talk’ and legal consciousness in the United States. His arguments will compel scholars to rethink the relationship between ordinary people, government power, and the emancipatory potential of law.”
Mark Graber
“George I. Lovell has written a fascinating, important, and page-turning account of how ordinary people in American history have insisted that government take into account and respond to their vision of what constitutes fundamental rights. This is both an instant classic in law and society and a vital resource for proponents of popular constitutionalism.”
Harvard Law Review
“In This Is Not Civil Rights, George I. Lovell uses a historical case study to challenge conventional understandings of rights-based discourse. Focusing on the period between 1939 and 1941, Lovell examines complaint letters from citizens to the Department of Justice’s Civil Rights Section. Although the letters cover everything from vehicle-licensing requirements for seasonal lettuce pickers to police brutality against African Americans, many writers framed their grievances in terms of civil rights and constitutional protections. After analyzing the letters and the Civil Rights Section’s responses, Lovell concludes that the writers were able to use rights-based language without losing sight of the fact that law did not live up to its expressed ideals and without succumbing to official law’s claim to set some objective or universal standard for justice or legitimacy. . . . This optimistic new view is sure to stimulate debate about the future role of rights-based discourse.”
Law and Politics Book Review
This Is Not Civil Rights challenges much of the conventional wisdom surrounding citizens’ use of ‘rights talk’ in the United States, making a compelling case for the need for greater research in how typical Americans use the language of rights to push for societal and governmental change. . . . George I. Lovell carefully analyzes the claims documented in a cache of letters found buried in the National Archives, written to the Roosevelt administration during the transition from the Great Depression to World War II. . . . His examination of the legal and rights language used by average citizens, who are frequently perceived to be apolitical, provides a more sophisticated understanding of the position the law plays in the lives of Americans.”
Journal of American Studies
“With This Is Not Civil Rights, George I. Lovell joins a rich conversation among socio-legal scholars about the legal practices and consciousness of society’s nonelite. The freshness of his contribution comes from the slice of society that his sources capture: actors who were not engaged in litigation or organized social movements, but were nonetheless willing to challenge authority. . . . Lovell deserves credit for so thoroughly mining this unique source base, in ways that disrupt conventional narratives and suggest new research questions.”
Political Science Quarterly
How deeply is ‘rights talk’ woven into everyday political discourse? How much of that talk merely indicates idealism, confusion, or complacency on the part of the democratic masses, rather than thoughtful engagement? To address these questions, George I. Lovell examines letters written by individuals to the US Department of Justice’s Civil Rights Section from 1939 to 1941. . . . An original, interesting, and important contribution to the study of legal discourse.”
Journal of Interdisciplinary History
"In This Is Not Civil Rights, George I. Lovell looks beyond the courts to explore how individual American understand law and rights. . . . His focus on the argumentative strategies of letter writers is persuasive, and his argument about these particular Americans' engagement with law is strongly supported."
Journal of Politics
“A valuable contribution to the extant research on popular rights discourses and legal consciousness in American law and politics. . . . The stories [Lovell] shares of ordinary individuals’ struggles and their use of legal and rights discourses are compelling. This book is an important new addition to the law and society literature.”
Law and Society Review
“Among the many rewards of reading George Lovell’s This is Not Civil Rights is to see how much this skilled political scientist does with a study that appears, on the surface, distinctly modest. . . . Each of the letter writers in Lovell’s sample asked their government for something, ranging from recovering cash stolen by corrupt policemen to replacing a lost job to overturning a wrongful conviction. The requests eventually reached lawyers in the Justice Department’s newly created Civil Rights Section. These lawyers almost invariably responded that they lacked the power to help. And this is pretty much where Lovell’s story ends: a plea and a rejection. Out of this, Lovell constructs a fascinating study of how a generation of ordinary Americans formulated claims on their government, and the disappointing responses they received."
Journal of American History
“Any scholar who has mined New Deal agency archives cannot help wondering how meaningful letters from rank-and-file citizenry, usually filed under 'general correspondence,' are in the big scheme of things. Although correspondence with the mass citizenry is among the innovations of Franklin D. Roosevelt’s presidency, scholars have yet to fathom this deluge’s democratic implications. Lovell engagingly and creatively helps do so, [arguing] that this correspondence enables him to probe ‘the underlying beliefs and commitments of people who make idealized claims about law and rights.'”
American Journal of Sociology - Kristin Bumiller
“A tremendously interesting analysis. . . . The book may do a better job of illuminating the meaning of civil rights in American society than the jurisprudential analysis that has attempted to define them over past seventy-five years. . . . Further research in a wide range of topics, including civil rights, legal consciousness, federalism, democratization, local governance, and racial politics, will greatly benefit from Lovell’s thought-provoking reading of historical evidence and novel insights on the early foundations of a civil rights consciousness.”
Choice
"This is Not Civil Rights examines letters written by Americans in 1939 to the newly created Civil Rights Section (CRS) of the US Department of Justice. George I. Lovell finds value in these letters as informative about how citizens and the government think about rights and as indicative of a gap between the formal law and what people think the law is. A good addition to collections on American law and civil rights."
Choice

"This is Not Civil Rights examines letters written by Americans in 1939 to the newly created Civil Rights Section (CRS) of the US Department of Justice. George I. Lovell finds value in these letters as informative about how citizens and the government think about rights and as indicative of a gap between the formal law and what people think the law is. A good addition to collections on American law and civil rights."
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Product Details

  • ISBN-13: 9780226494043
  • Publisher: University of Chicago Press
  • Publication date: 10/1/2012
  • Series: Chicago Series in Law and Society Series
  • Edition description: New Edition
  • Pages: 280
  • Product dimensions: 6.00 (w) x 9.00 (h) x 1.10 (d)

Meet the Author

George I. Lovell is associate professor of political science at the University of Washington. He is the author of Legislative Deferrals.

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Read an Excerpt

This Is Not Civil Rights

Discovering Rights Talk in 1939 America
By GEORGE I. LOVELL

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2012 The University of Chicago
All right reserved.

ISBN: 978-0-226-49404-3


Chapter One

Voices from Peoria

On February 9, 1939, four women from Peoria, Illinois, wrote to US Attorney General Frank Murphy in Washington, DC. Margaret Brophy, Henrietta Jeffries, Matilda Hammel, and Elsa Hotze began by indicating that they were writing to Murphy after reading in the Chicago Tribune that Murphy had recently created a Civil Liberties Unit in the Department of Justice. The letter then explained how all four women had lost their jobs at the local post office. The women were laid off in 1933 as a result of Depression-related emergency legislation. Congress later passed legislation restoring many eliminated post office jobs but had not made provision to reinstate employees who had been laid off. As a result, the women were left "at the mercy of a newly appointed Postmaster" who had declined to rehire them. All four women had between thirteen and eighteen years of service when they were laid off. The women explained that they had been too young to qualify for retirement annuities but noted that annuities had been given to many older laid-off workers who had fewer years of service. They asked the attorney general for a "fair and just ruling, either reinstatement or an annuity retroactive from date of dismissal" (Brophy et al. to Murphy, February 9, 1939).

The letter was one of the first of many thousands of letters claiming rights or other legal entitlements that the Justice Department processed over the next decade. The department processed civil rights correspondence through Murphy's new Civil Liberties Unit, which later changed its name to the more familiar Civil Rights Section (CRS), the name I use in the rest of this book. In this case, the unit's staff seemed surprised that the women from Peoria saw a connection between their loss of a retirement annuity and the attorney general's reported interest in civil liberties and civil rights. Henry A. Schweinhaut, the first director of the unit, apparently wanted nothing to do with the women's complaint. He wrote in longhand on the routing slip that led the letter to his desk: "This is not civil rights." He later dictated a short reply letter that claimed that legal limits on the Justice Department's jurisdiction made it impossible to provide any assistance. The reply claimed: "I am sorry to advise you that this is not a matter over which the Department of Justice has jurisdiction" (March 7, 1939). The department took no further action on the case.

The department's response to the letter from Peoria shows that the officials responsible for responding to civil rights complaints had ideas about what counted as "civil rights" that were quite different from the ideas of the women who had written from Peoria. The reasons for such different understandings are not easy to determine. The women's reference to the newspaper story makes it clear that they saw some association between their predicament and Frank Murphy's expressed interest in civil rights, but the four women did not say directly why they thought their complaint was a civil rights complaint. The women did not point toward a particular constitutional provision or other legal source of a relevant legal "right." They instead made a variety of more general claims that expressed their underlying conceptions of justice.

Specifically, the women made claims about procedural fairness, reciprocity, and personal responsibility. The women wrote: "We are out of the service through absolutely no fault of ours" and "This to us seems unfair and has destroyed the merit in Civil Service." The women noted that "the same amount was deducted and withheld from our salaries" as had been withheld from the older employees who had received annuities. Thus, the women suggested that it was "obvious" that they were entitled to a "pro-rated" annuity for their service. The women also adopted Franklin Roosevelt's own political rhetoric to link their problems to policies championed by the president. They wrote: "Not only have our positions been taken from us but also our security.... Our government is stressing Social Security.... Those of us compelled to bear the burden of the economy program are so few in number it would not be much of a financial strain on the pension fund, to provide for us." The women then returned to the theme of fairness and reciprocity, adding: "We have given the best years of our life to the service of our Government."

The women's broader claims about justice and reciprocity did not seem to register with the staff at the CRS. The reply letter sent by the CRS begins with a brief summary of the complaint. The summary characterizes the letter only as a personal request for reinstatement and a retirement annuity and ignored the women's broader suggestion that issues of rights and justice were at stake.

The Civil Rights Section and Citizen Complaint Letters

The exchange between the women from Peoria and the attorneys at the CRS reveals a gap between citizens' expansive ideas about rights and the narrower understandings of responding government officials. That gap appears with stunning regularity in the records of the early CRS. This book is based on an analysis of 879 cases of people who wrote letters to the federal government making rights-related claims. The letters in my sample were all processed by the CRS, but they are otherwise a very diverse group. Many were sent to President Roosevelt, Eleanor Roosevelt, or some other federal office and then forwarded to the CRS for a response after the recipients determined that they raised issues related to civil rights or liberties. The letters were written during the first few years after the CRS was created. In nearly every case, people who wrote letters did not receive any material help from the government. Almost all the people who wrote letters received only a short reply letter stating that the Justice Department could not help because the federal government lacked legal jurisdiction over the complaint.

Looking broadly at the letters processed by the early CRS reveals that people were endlessly creative in adapting familiar elements of popular rights discourses and other legalized language to communicate a wide range of concerns and problems, some catastrophic and some rather trivial. Most writers engaged government legal officials by making both legal and nonlegal arguments to support their claims. The writers' ingenuity produced some broad patterns in the letters that might be surprising when compared to the kinds of claims one might expect a civil rights office to receive today. Most strikingly, the letters were not primarily about problems related to race. Only 8 percent of the letters in my sample made any mention at all of race, and only twelve letters (less than percent) mentioned concerns about segregation. Less than 1 percent made claims about sex discrimination, and there are no letters in the sample claiming rights of persons with disabilities. Meanwhile, many more writers made claims of rights or entitlement that fall outside current understandings of "civil rights" and "civil liberties," including claims about rights to work, to welfare, and to equal economic opportunity. Writers asserted a wide variety of offbeat and sometimes quite specific rights. Henry Kost claimed a right to paint signs for a living and draw cartoons as part of his constitutional protection for the right to "pursue happiness" (November 30, 19 1). Richard Terry claimed that Americans had "the right to do your bit of work, to keep from being a burden, a chisler, a liar upon self and other neighbors" (May 20, 1940).

At first glance, such examples may suggest that the people who wrote were bumbling and ill informed. More generally, the fact that so many people wrote letters without getting help suggests that writers had exaggerated ideas about what rights were protected by law and about what government officials would be willing to do to protect rights. However, the exchanges recorded in the CRS correspondence reveal something different and, perhaps to some readers, more surprising. Many of the letter writers showed considerable facility when communicating the demands and concerns that they connected to rights. Many letters were carefully constructed, and the pleas in the letters are often quite moving. Writers also showed a considerable capacity to deploy legalized discourses as a resource for expressing or strengthening their claims for attention from the government. Even when they were articulating novel entitlements that were not recognized by law, writers still quite often attempted to apply legal rhetoric to communicate requests and complaints to government officials. Most writers made at least some claims about rights, law, or justice, and quite a few added detailed legal arguments. Many writers without formal training in law cited specific constitutional provisions, text from statutes, or relevant case law as they built coherent legal arguments supporting their claims.

Given the time period, the tendency of letter writers to express grievances by making claims about rights or other legal entitlements is particularly striking. It is not obvious what would inspire so many writers to articulate such a broad range of grievances by using language of rights and other legal entitlements. Clearly, the inspiration was not coming directly from official law or judicial rulings. Other than the understaffed and largely unhelpful CRS, the federal government did not have any institutional capacity to protect rights. The letters were written a decade and a half before Brown v. Board of Education (347 US 483 [1954]) and related cases signaled a transformation in the institutional processes for protecting rights. The letters were also written long before the judiciary started being widely perceived as the branch of government responsible for protecting the rights of racial minorities or other subaltern groups.

The broad patterns in the letters thus raise some important questions about the relationship between official law and the ideas of ordinary people regarding legal entitlements like rights. If the "rights" claimed by letter writers were not recognized by law, where were writers' expansive ideas about rights coming from? Since the claims were addressed to elected officials and their representatives and not to judges, why did people so often formulate demands using legal rhetoric about rights and the Constitution? Did writers actually believe that their expansive claims expressed established legal entitlements and that the law would somehow compel executive branch officials to honor their demands? Or were they simply drawing on legal discourses as a familiar and thus potentially effective way to communicate political demands? More generally, what effect does a propensity to talk and formulate demands in a legalized discourse of rights have on political and social life in the United States? Does the drive to formulate novel entitlement claims as rights violations constrain what people ask for and what kinds of responses they get from government officials? Does the tendency of writers to articulate idealized claims about rights and other legal entitlements indicate that people had broad faith in law? Consideration of the letters processed by the CRS, along with the reply letters that the CRS sent, provides some illuminating insights that help to address these questions.

What Is in the Letters?

I catalog and discuss the substance of the claims in the letters in greater detail in chapter 3 and provide additional information about how writers used both legal discourse and other nonlegal claims in chapters 4 and 5. For this introduction, I provide only a few preliminary observations.

The people who wrote letters spanned a broad range of the socioeconomic spectrum. Writers include owners of large companies who complained that their workers were joining unions. Letters also came from destitute people traveling around the country in desperate search for work who complained about being treated poorly by state welfare officials. Some letters were typed on formal letterhead and written with considerable precision. Most, however, were handwritten and less formal. Letters often contained spelling errors and problems with grammar and diction; some are difficult to read because of illegible handwriting or the writer's difficulty with written expression. The letters came overwhelmingly from individuals rather than from organizations or interest groups.

My sample includes 879 encounters between letter writers and the CRS, counting multiple letters from the same person on the same incident as a single case. Most of the encounters (710) consisted of reports or complaints about individual incidents where rights were allegedly violated, the rights of either the letter writer or some family member or close friend. There is tremendous variation in the seriousness of the incidents that generated complaints. Some writers told heartbreaking stories about having their children forcibly taken away by corrupt state welfare officials. Other writers complained that their rights were violated by dog-licensing ordinances or by being asked to work on the Fourth of July.

In the other 169 cases in my sample, writers expressed more general opinions rather than reporting specific incidents. Many letters in this group commented on some administration initiative or urged President Roosevelt to veto proposed laws related to rights and liberties, particularly the anti-alien Smith Act. I include these letters in the study because many of them articulate general claims about law or contain illuminating and forceful expressions that reveal how writers thought about law and rights. However, because these letters do not report on particular incidents, it does not always make sense to include them when I report on the percentage of letters that do or say a particular thing. (I indicate whether a reported percentage is a percentage of all 879 letters or a percentage of the 710 "incident" letters.)

Why Did People Write Letters?

The answer to the question of why people wrote is not as straightforward as it might seem. To be sure, there were some people who asked for very specific things in their letters, and many other writers asked more generally for help with particular problems. Nevertheless, it would be a mistake to assume automatically that a person's only reason for writing was the expectation that federal officials would respond by solving their problems. Many writers who demanded specific assistance also added things to make it clear that they did not expect the government to help. There were also many writers who, sometimes quite pointedly, did not ask for or seem to expect anything from the government officials addressed in their letters. Thus it seems fair to say that writers took the trouble to write for more complicated reasons than the simple expectation that their letters would lead to some material form of patronage. Among other important things, writing letters provided opportunities to give voice to complaints, to register protest, to provide information to government officials, and to create a record of an injustice.

Whatever the reasons for writing, it is important to observe that writing was not costless. In addition to the cost of postage and paper (which was not a negligible factor for some writers), writers put time, energy, and thought into writing. Even letters from persons of very modest means are often carefully typed or meticulously handwritten. Many writers did at least some research to try to build arguments to support their petitions or claims. A few writers also reported more serious costs. One example is Douglas Dorner of New York City, who wrote to complain about a dispute over wages with his Works Progress Administration (WPA) employer (March 9, 1939). Dorner later wrote back to report that he had been fired because the Justice Department had written a memo to the WPA informing them of Dorner's complaint (June 23, 1939). Other writers expressed concerns about the consequences of writing. When L. R. Pinckney wrote from Washington, DC, for help with a bigamy case, he included a self-addressed envelope. He explained that he wanted the department to send a reply in his envelope because he did not want a letter with a return address from the Justice Department to attract attention at his boardinghouse (March 29, 1939).

One important pattern in the letters is that very few writers specifically asked the government to prosecute perpetrators of rights violations. This pattern is striking because the CRS was part of the Criminal Division, and its mission was to conduct criminal prosecutions. Just 36 (5 percent) of the 710 letters on incidents requested that the federal government conduct a prosecution. Casting the net more broadly identifies more cases where people made requests that are at least indirectly related to prosecution. There were an additional 89 (13 percent) letters asking that the government conduct an investigation, while 122 (17 percent) asked for a federal official come to the scene to provide unspecified assistance. However, even that bigger net leaves nearly two-thirds of the letters that did not ask for either prosecution or any investigatory activity related to prosecuting crimes. Some writers specifically expressed a lack of interest in criminal prosecution. An example is H. W. Dail of Los Angeles, who complained about antiunion violence targeting a Teamsters local. Dail wrote, "We are more interested in protection than prosecution," and suggested that the mere presence of the FBI would likely be enough to deter some groups that were violating workers' civil liberties (April 7, 1939). Another writer who said he was looking for a largely symbolic response was Andrew Loewi, whose furniture store in Manhattan had been targeted by anti-Semitic picketers. Loewi said that he understood that the First Amendment made it difficult to go after picketers but asked that the president make a symbolic "statement" in response to growing anti-Semitism in the United States (April 21, 1939).

(Continues...)



Excerpted from This Is Not Civil Rights by GEORGE I. LOVELL Copyright © 2012 by The University of Chicago . Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Preface
Acknowledgments

Chapter 1. Voices from Peoria
Chapter 2. The CRS’s Legal and Political Strategies for Improving Civil Rights Protections
Chapter 3. Dead Dogs, Bad Divorces, and, Dope-Peddling Sheriffs: The Subject Matter of Civil Rights Complaint Letters
Chapter 4. The Common Place of Lawyering: Using Legal and Constitutional Arguments to Support Novel Civil Rights Claims
Chapter 5. Underlying Commitments of Rights Claiming: Extralegal Persuasive Claims and Citizen Understandings of Law
Chapter 6. In Defense of Extravagant Rights Talk

Appendix: Notes on the Archival Sources

Notes
Bibliography
Index

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