On Thursday, October 22, Yale Law School professor John Fabian Witt delivered the 2026 McCorkle Lecture, titled “Power Not Rights: The Secret History of 20th-Century Constitutionalism.”
In “Power Not Rights,” Witt questioned what actually propelled the massive socio-constitutional changes of the mid-century rights revolution, marked by the litigation campaign against Jim Crow segregation and the civil rights movement’s victory in Brown v. Board of Education.
Witt posited an alternative origin of the mid-century rights revolution, rooted in a forgotten older generation of civil rights activists and lawyers. Witt contended that by shifting our historical perspective two decades, the theory of a “long civil rights movement” reveals that the litigation campaign against Jim Crow was not a rival to the labor and class movement, but arose out of the world of labor and class mobilization.
The historiographic framework of a “long civil rights movement” places the origins of the civil rights movement in the “liberal and radical milieu of the late 1930s,”[1] rather than in the Brown decision. Historians ascribing to this “long civil rights movement” framework, according to Witt, de-center Brown v. Board of Education, in favor of a forgotten older generation of 1930s Black Freedom Projects organized around working-class mobilizations and local protests. Witt asserted this movement was “first and foremost an effort to mobilize a coalition capable of exercising power” and “secondarily functioned to establish the rights for which it later became famous.”
Witt traced the roots of what would become the civil rights movement and mid-century rights revolution to the 1920s. Witt cited Sidney Hillman’s Chicago-based Amalgamated Clothing Workers, the Brookwood Labor College, and the Civic Club in Greenwich Village, New York, as the intellectual hubs attracting left-wing progressives, labor leaders, birth control advocates, and the organizers of the black freedom movement during this period. Likewise, the Garland Fund, the subject of Witt’s book The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, consisted of a board of directors that brought together figures from the NAACP, the American Civil Liberties Union, Sidney Hillman’s Amalgamated Clothing Workers, the Brookwood Labor College, and liberal and left-leaning magazines. The fund’s stated mission was two-fold: “to advance producers' movements and the protection of minorities,” Witt stated. Both the leaders of the class and labor movements and the black liberation movement emerged from these engagements better equipped to make sense of the world and advance the causes of labor mobilization and racial justice.
Witt remarked that beginning in the middle of the 1920s, Hillman’s Amalgamated Clothing Workers and Brookwood, with the financial support of the Garland Fund, began to experiment with the project of "affirmative legal action.” Labor activists sought to use courts offensively, rather than defending piecemeal against labor injunctions, to turn the tables on management and secure victories for workers and labor unions.
That strategy of “affirmative legal action,” emerging from the world of labor and class mobilization, Witt said, was adopted in the fight against Jim Crow segregation. The NAACP litigation campaign against segregation, which would culminate in the Brown decision, first took shape as a Garland Fund grant request from James Weldon Johnson, Walter White and W.E.B. Du Bois. Johnson contended that Black Americans comprised “the largest group of unorganized workers in the country” and “at present, the most ineffective block of the producing class.” According to Johnson, a large-scale litigation campaign for political and civil rights, and against Jim Crow segregation, would “release the creative energies of the producing class in America.” Witt asserted that rights featured centrally in Johnson’s litigation campaign in 1929 but functioned as devices for the accumulation of power.
A joint committee of the Garland Fund and the NAACP hired Nathan Margold, a Romanian-born Jewish immigrant, to craft and command the litigation attack against segregation. Margold rejected the strategy of suing southern school districts one by one to equalize funding, which Witt compared to defending against thousands of labor injunctions. Witt stated, “The real problem was the brute institutions and their power that lay behind segregation.” Instead, Margold devised a plan to establish the illegality of separate schooling. The litigation plan, which would come to be known as the Margold Report, would aim to declare separate schooling unconstitutional, regardless of whether funding was unequal.
Witt characterized the litigation strategy as an exercise of power. The Margold Report was seeking “a sustainable institutional mechanism for marshaling power.”
What gave the Margold Report traction was “catastrophe,” Witt stated. The onset of the Great Depression, World War II, and eventually the Cold War engendered the conditions necessary for mobilization. Mass unemployment and the election of Franklin D. Roosevelt in 1932 created a political opportunity for both the labor and black liberation movements. Witt said that a new great migration of voters of the industrial North flocked to the Northern wing of the Democratic Party, and “these coalitions, and the power they wielded, simultaneously propelled and contained the nature of the constitutional change.” Roosevelt’s presidency and the New Deal coalition would produce eight nominations to the Supreme Court, including Garland Fund advisor Felix Frankfurter, who would eventually form part of a unanimous Supreme Court that decided Brown.
The Margold plan’s designers and advocates conceived of it in terms of power, rather than in the language of rights. Witt contended, “their successes came from developing and exploiting institutions and creating a political coalition big enough to exert and maintain the power to shape their communities in new ways.” A. Philip Randolph, the organizer and leader of the Brotherhood of Sleeping Car Porters, later in life, emphasized that “you can’t take anything without power.”
But this raises the question of how the constitutional changes of the latter half of the 20th century came to be understood as organized around rights. Witt attributes this shift to the economic and social conditions emerging in the latter half of the 20th century. The displacement of American industry from urban areas, into the suburbs, then to the western and southern United States, and eventually out of the United States altogether, eliminated the conditions of solidarity for the producing class. Moreover, the Margold litigation campaign was devised for the conditions of its time. Suburbanization and white flight acted as a “poison cocktail" for the Margold-Johnson school-district integration strategy. As a result, Witt said, “the project of marshaling power and resources for the black community, through civil rights law, faltered. Antidiscrimination law and labor law became rivals rather than complements.”
Witt posited that the true story of constitutional liberalism and the rights revolution is defined by “successful governing coalitions [making] rights by acquiring and exercising the power to set the rules that govern their communities, and appoint the judges who will interpret them.” Rights, according to Witt, “are the high-water mark of coalitional waves, not the waves themselves.”
As for today, Witt noted that we currently reside in our own middle period between constitutional orders, as Sidney Hillman and James Weldon Johnson did a century ago. “And the political coalition that manages today, and in the years to come, to gather the power required, to realign American politics and law, will set the terms for rights in the century to come.”
Author: Samuel Koeppel ‘28
[1] Jacquelyn Dowd Hall, The Long Civil Rights Movement and the Political Uses of the Past, 91 J. Am. Hist.
1233, 1235 (2005).