Liberty, Equality and Justice: Civil Rights, Women's Rights and the Regulation of Business, 1865-1932

The subtitle tells it all. This rather ambitious book deals with developments in civil rights, women's rights, and business regulation, in the period from the end of the Civil War to just before the New Deal. The three subjects are, needless to say, rarely yoked together in the literature. I can see, theoretically, why it might be extremely enlightening to try to show connections between these three rather different topics. I was less convinced by the actual execution. In the introduction, Paulson sets out the conceptual framework of his book. Most important is the notion of "core values." Every society has a cluster of "core values;" they are "normative, contested, and hierarchical; they are also partial and variable." These "core values" are "contested social constructs." Presumably these values are critical to the way people think and act in a society. Paulson identifies three of these core values: they are the trio of the title, liberty, equality, and justice. Since these are "core" values, Paulson must believe that they are widespread, and command general acceptance at some level. What is "contested," then, must be their boundaries and applications. These values, though they are taught in schools, and proclaimed in speeches and sermons, "emerge" in important ways out of "traumatic" events in history. Many individuals, as a result of these events, and other situations growing out of the contests and configurations of life, come to feel that the facts of life "do not match up with the core values" (p. 6). Life-experience and the official line simply do not jibe. An African-American, in (say) 1900, subject to segregation and oppression, could hardly feel that equality or justice meant what a Fourth of July speaker thought or said they meant. Faced with this mismatch of theory and reality, people can react, says Paulson, in four different ways. They can "rationalize the gap as inevitable," and embrace the status quo; they can try to "return to some past situation," through some kind of ritualistic retreat and withdrawal; they can attempt to "reform" the system-- that is, make a stab at renewing the values through changes and improvements; or, finally, they can take the radical step of denouncing the "professed core values" as "unreal or inappropriate" and become a revolutionary. Another crucial set of distinctions is between dependence, independence, and interdependence; a slave or a woman in a traditional household is dependent, independence is a state of autonomy or control of one's destiny, interdependence a state in which individuals or groups are locked into a kind of cooperative or symbiotic state. The struggle for "equality" means, for women especially, an escape from dependence; but social justice often requires, not a blind faith in independence, rather it demands a recognition that society is and must be interdependent-- cooperation rather than competition might well be the goal of policy. Armed with these concepts, the author proceeds to march through his period, divided into time-segments, and analyze events and disputes in terms of core values and the like. In the process, he covers a tremendous range of topics: reconstruction, the Granger laws, anti-trust law, the women's suffrage movement, Progressivism, the first World War, the red scare, the rise of the Ku Klux Klan, the elections of Coolidge and Hoover, to mention only a few. He introduces, and discusses, a rich and fascinating cast of characters, using the same conceptual tools: people such as Susan B. Anthony, W. E. B. DuBois, Woodrow Wilson, Marcus Garvey, Herbert Hoover, and many others. There is a great deal of information in this book. In many ways, it makes sense to try to tie together minority rights, women's rights, and business regulation. Usually, these are hermetically sealed off from each other--after all, each is a vast and daunting subject in its own right. Paulson does convince me that there are insights to be had in treating these topics together. Nonetheless, I do not really think the attempt can be called a success. The conceptual scheme is too mechanical; and its application is sometimes a bit strained. Take, for example, Paulson's discussion of MULLER V. OREGON (pp. 123-4). The famous Brandeis brief argued that the state could regulate women's labor conditions because "prolonged hours of work were detrimental to women's maternal roles and responsibilities." A "progressive concession" was wrung from a conservative court "by appeals to maternalist rhetoric." This allowed the majority to weigh the interest in healthy mothers over "liberty of contract," in which "the contract assumed an equality of status between the consenting parties. Thus, a conservative court could invoke the core value of justice to counterbalance liberty and equality." This, I think, illustrates the problem of trying to force history into the Procrustean bed of the three core values. I could just as easily argue that the court decision was about equality rather than justice (the question was: how to calibrate the rights of men and women, in the light of women's ACTUAL role in families). Or that the decision was ABOUT liberty, and to what extent it had to give way to public policy. And so on. Often (not always), the way Paulson uses the concepts is simply not helpful in understanding what happened and why; they appear to be tacked on to discussions, as it were, after the fact. But there is a more fundamental problem. What are core values? How do we know one when we see one? Who told Paulson that liberty, equality, and justice were "core" values of the United States? Exactly what does this mean? I am personally rather skeptical that these are "core" values of most Americans, except at a level of abstraction so high as to render them almost meaningless. Certainly you can find people talking about these values, from the days of the Founding Fathers (and before), and they are found in speeches and sermons (as I said) and in the writings of political theorists. What ordinary people think and do is another question. Most white people, until fairly recently, did not believe blacks were or should be their equals and did not question the system that kept blacks "in their place." The anti-Chinese movement of the late 19th century was wildly popular in California and elsewhere; equality for the Chinese was nowhere to be found. The Ku Klux Klan had millions of adherents. Women did not get to vote until the 20th century. If all this is true-- and it surely is-- what does it mean to say that "equality" is a "core" value in this country? Of course, Paulson knows about all of these problems; in fact his book is to a large part about these and other "failures." But where does this leave the "core values?" We are left to treat them as fairly empty rhetoric. People, to be sure, tend to SAY they believe in equality. Some people actually do. Others think some kinds of equality are fine, and others are not. The same for liberty and justice. The larger problem here, which (in my humble opinion) bedevils history and some branches of social science, is the excessive emphasis on language and rhetoric. The author is constantly talking about "social languages," and treating the problems of "discourse" as far more crucial than I think the record justifies. For example, the progress of women's rights depended, he says, on finding a "social language that would communicate with a potentially large but increasingly diverse audience" (p. 233). In the business regulation area, the "public mind" (whatever that means) was "deeply divided by the clash between the old languages or regulation and... competition and the new realities of corporate growth" (p.235). Certainly, it is interesting and MAYBE of some importance to observe the rhetoric used by social groups and their opponents; but is it too antediluvian to think that the motor force behind social change is something greater and more complex than rhetoric or the choice of a "social language?" In the struggle to make reality out of the core values (a struggle, I might add, that most people took no part in), there were some achievements, but also "repeated patterns of failure" (p. 243). This is an understatement as far as civil rights is concerned: the book ends in 1932, and black aspirations had little to show for their efforts up to that point. It is enough to mention segregation, the Ku Klux Klan, lynching, the suppression of voting rights, the apathy or disdain of the North and the federal government, and white supremacy in the south--a depressing catalogue. Women had gotten the vote, on the other hand; and business regulation--well, there was more of it than before, though whether it was better, or even whether it accomplished anything is a question I for one prefer to avoid. What accounts for the failures, however-- and for Paulson, one must recall, his book is a chronicle of failure? There was a "cacophony of conflicting claims" that drowned out the "cry for equality and justice." Most Americans, as of 1932, had "not yet learned that... equality denied and justice deferred for others in the long run undercut the very basis of ordered liberty-- the democratic community" (p. 244). They had not learned how to rank-order the values. The "thesis" of the book is the "fact that so many Americans ranked liberty (for themselves) higher than equality (with others) and justice (for all)" (p. 2). I frankly find this explanation rather flat and unsatisfying. I find it hard to believe that social progress is a process of EDUCATING people, of making them see the light, of showing them how to rank-order their core concepts. There simply is not enough attention to the massive processes that were going on in society, and which, most likely, INFLUENCED or even determined the social meanings and definitions of the concepts (rather than the other way around). Of course, this is just my own perhaps biased view. My quarrels are basically with the conceptual framework, and the way Paulson uses it to label men, women, and events-- too pat, in my opinion; and not very enlightening. In other regards, the book is quite admirable. It represents a great deal of research; it sums up and compares periods and events and movements in a tidy, efficient way; this is a book I might very well look at and refer to often. There are interesting and important insights along the way--I liked, for example, the discussion of how the concept of "civil liberties" got its start. The accounts of the women's movement, the analysis of business regulation-- much of this is fresh and rewarding. There is a great deal of value here, even though I cannot buy the overall thesis and framework.


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