Abstract

Excerpted From: Andrew J. Lanham, Radical Visions for the Law of Peace: How W.E.B. du Bois and the Black Antiwar Movement Reimagined Civil Rights and the Laws of War and Peace, 99 Washington Law Review 433 (June, 2024) (593 Footnotes) (Full Document)

In one of the last books he ever published, a legal memoir titled In Battle for Peace, W.E.B. Du Bois reflected that February 1951 had been “an unusual month” for him. He was not wrong. That February, the world-famous scholar, editor, and civil rights activist turned eighty-three and hosted a gala birthday party for himself to raise funds for African decolonization. He also married his second wife, the writer Shirley Graham, in what the Baltimore Afro-American newspaper called “the wedding of the year.” And he was indicted, arrested, and arraigned in federal court as an alleged agent of a communist foreign power because he had been the chairman of the Peace Information Center (PIC) in New York City, and the PIC had circulated a petition advocating a global treaty banning all nuclear weapons. The United States government offered to drop the case if Du Bois would plead no contest, meaning that he would not formally admit guilt, but would accept conviction and forgo the opportunity to defend himself in court. But Du Bois rejected the deal, insisting that he and the other officers of the PIC, who were also indicted, had simply exercised their First Amendment “right to speak and work for peace.” So Du Bois went to trial, and when both the ACLU and the NAACP's legal department refused to help, he raised money for his defense by barnstorming his way across the country, giving speeches to a diverse coalition of antiwar organizations, churches, labor unions, Progressive Party chapters, and local NAACP branches. The donations from those grassroots organizations enabled Du Bois to mount a public defense in open court.

At trial, Du Bois and his codefendants from the PIC were ultimately acquitted from the bench because the government failed to show that they had acted on behalf of a foreign power. It was a small but real victory for free speech amid the anticommunist hysteria that swept through the country during the second Red Scare in the late 1940s and early 1950s, although as a district court decision, it did not set any legal precedent. More broadly, Du Bois's trial was also a significant moment in both the antiwar movement and the civil rights movement. Both strands of progressive activism--against war and for civil rights--faced a crackdown in the McCarthy era, and Du Bois was one of the most prominent activists, in either movement, to resist. His defense strategy for his trial, moreover, revealed the potential power of fusing together civil rights and antiwar advocacy, at both a conceptual and a practical level. Conceptually, Du Bois linked the antiwar movement's call for domestic and international laws to regulate warfare with the civil rights movement's call for laws to expand racial equality. More practically, the ad hoc defense coalition that Du Bois assembled united pacifist groups with local NAACP branches in a shared legal campaign that successfully blended together claims for peace, free speech, and equal rights.

This Article argues that Du Bois's strategy of connecting peace with civil rights was also representative of a much larger legal history in which antiwar and civil rights activism productively intertwined. Like “war,” “peace” is a key legal category in both U.S. public law and public international law, and across his long career, from the late 1890s to the early 1960s, Du Bois worked to redefine what peace meant by tying it to the idea of racial equality. His approach stood in contrast to many mainstream white peace activists and international lawyers at the time, for whom, as Duncan Bell argues, “claims about 'peace’ usually” meant peace between majority-white imperial nations, as such activists either ignored colonial wars or consciously justified colonial “conquest” as a necessary step to pacify the globe. Du Bois tried to change that colonialist understanding of peace by expanding the very concept of peace, as a legal and political category, to include racial justice, self-government, and domestic civil rights.

Du Bois also worked to reimagine what legal mechanisms would be necessary to create such an egalitarian peace, beyond the formal legal ban on war that liberal internationalist lawyers proposed in the first half of the twentieth century. Du Bois ultimately articulated a much more radical vision for the emerging “international law of peace,” as he demanded not just a formal ban on war, but also a series of sweeping, structural changes that he saw as the legal path to lasting peace--including global decolonization, economic redistribution, and, domestically, equal civil, political, and social rights. In order to mobilize the public to pursue such expansive legal changes, Du Bois built bridges between the antiwar movement and the civil rights movement, leveraging each movement's resources to advance the interconnected--and fundamentally transnational--goals of ending war and securing equal rights.

Crucially, Du Bois was far from alone in what he called the “fight for peace and civil rights.” Across the twentieth century, a wide range of Black activists and civil rights lawyers, from Paul Robeson and Pauli Murray to Ella Baker and Martin Luther King, Jr.--many of whom were influenced by Du Bois--connected claims for peace and claims for equality. Much like Du Bois, they worked to mobilize civil rights and antiwar organizations to support each other's goals. Antiwar groups, for example, advised Martin Luther King, Jr. on protest tactics during the Montgomery Bus Boycott in 1956. King, in turn, argued during the Vietnam War in 1967 that “the spirit of the civil rights movement ... should ... imbue the peace movement.” Over time, Du Bois, King, and other Black activists inspired cross-movement collaborations that changed society and the law, as antiwar and civil rights groups shared resources, personnel, and ideas that bolstered each other's legal campaigns.

Legal and historical scholarship, however, has largely overlooked the vital nexus between civil rights and antiwar activism. Existing scholarship tends instead to emphasize how Black support for America's wars helped civil rights leaders to claim equal rights at mid-century. This Article begins to fill in that gap by reconstructing the long history of Black war resistance and its legal impact on both domestic civil rights and “the contemporary peace regime” in public international law. Peace politics can, admittedly, encompass an array of different perspectives, including total pacifism, opposition to a particular war, or the more general effort to end war. But despite those differences, this Article broadly analyzes what historians have capaciously called “peace advocacy” or “peace politics,” using Du Bois as a representative figure to trace certain continuities among Black activists' views on peace. Taking Du Bois's career as an exemplar that illuminates the larger social movements in which he participated, this Article examines how antiwar and civil rights activists worked together across the first half of the twentieth century to reimagine how to regulate warfare and achieve equal rights, both within the United States and abroad.

This Article recovers that history and argues that the long tradition of Black antiwar activism offers four central lessons about law, social movements, and the process of legal change. First, this history shows how closely the civil rights and antiwar movements collaborated, and it illustrates how their collaborations enabled each other's legal gains. That in turn reveals the ways that both antiwar and civil rights politics can serve as levers for a wider array of legal changes--antiwar activism, for example, influenced not only the laws of war, but also free speech law, labor rights, and racial equality law. Second, this history highlights the alternative proposals for the law of peace that activists like Du Bois promoted before the United Nations Charter took the narrower approach of banning war. The alternatives proposed by Du Bois and others, including decolonization, economic redistribution, and civil rights, continue to offer possibilities for legal efforts to limit war today. Third, at a theoretical and normative level, this history shows that claims for peace and claims for equality have routinely been conceptually intertwined. That suggests that movement lawyers today can productively unite civil rights and antiwar projects on issues ranging from demilitarizing the police to fighting climate change, which is a far more expansive approach to using law to constrain conflict than is typical in the long-running debate about how, and how much, to regulate war in domestic and international law. Fourth and finally, Du Bois's use of the print public sphere to mobilize civil rights and antiwar activists, as he did in his trial memoir In Battle for Peace, illuminates the cultural channels that activists employ to circulate radical legal ideas. That history foregrounds the crucial role that cultural infrastructure, such as magazines or publishing houses, often plays in enabling legal change.

Du Bois's career helps to reveal the wider history of collaborations between the civil rights movement and the antiwar movement because he played a central role in both movements for over six decades. He was also particularly inventive--and influential--in reimagining what peace could mean and what legal, political, and socio-economic changes might enable it. This Article therefore analyzes how Du Bois developed and promoted claims for peace in response to the changing conditions of global warfare from the 1890s to the 1960s. His ideas did not follow a linear path: Du Bois repeatedly changed his views and strategies, and he even reluctantly supported certain wars. But it is precisely his evolving, pragmatic efforts to wage legal campaigns for peace amid a shifting geopolitical landscape that this Article aims to track. By doing so, this Article provides a new and different picture of how ideas about peace and civil rights took form among movement activists, not just how those ideas were reflected in court cases, statutes, treaties, and the halls of official legal power.

Though Du Bois was not a lawyer himself, he was nevertheless an incisive critic of both domestic and international law, and his work offers a compelling window into the ways that activists brought together ideas about equality and peace. Prior scholars have analyzed specific moments of Du Bois's antiwar activism, especially during World War I and the early Cold War, but they typically have not framed those particular moments as part of a larger arc of antiwar activism stretching across Du Bois's entire career. As a result, the tendency has been to portray Du Bois as adopting an occasional pacifism or turning to peace later in life. Rather than emphasizing such discontinuities, this Article reconstructs a longer and more holistic story of Du Bois's ongoing peace activism and his frequent interactions with the organized peace movement in order to foreground and analyze deep continuities in his career-long antiwar campaign.

This Article proceeds as follows. Part I provides context for interpreting Du Bois's career by examining where Black antiwar activism fits within established scholarly narratives about the civil rights movement and the peace movement. In doing so, Part I also explains what Black antiwar activism can add to our understanding of both legal history and the available legal techniques for regulating warfare and protecting civil rights. The rest of the Article analyzes Du Bois's antiwar activism in depth, using his work to help reveal the antiwar origins of civil rights, and the civil rights origins of peace. Part II traces the roots of Du Bois's antiwar thinking to the Spanish-Cuban-American War and the period just before WWI. In those years, he came to see modern warfare as a problem of colonialism and industrial capitalism, which had to be solved structurally through decolonization and industrial democracy, not just by global treaties banning war. Part III examines Du Bois's efforts to fuse together claims for global decolonization and domestic civil rights in his critique of WWI and his work planning for the post-war peace during both world wars, especially in his petitions to the League of Nations and then the U.N. Part IV explores Du Bois's antinuclear protests and his federal criminal trial during the early Cold War, reconstructing the legal and publicity battles that he fought. Part V tracks the long-term influence of Du Bois's antiwar work on later activists like Martin Luther King, Jr., examining how public memory inspires legal mobilization. Finally, the Conclusion draws theoretical and normative lessons from this history about peace politics, the dynamics of social movement activism, and the legal tools for regulating war.

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For more than six decades, from the late 1890s to the early 1960s, Du Bois was one of the leading voices for peace in the United States and abroad. During that time, he consistently pushed the peace movement, which was often dominated by white imperialists, to recognize how racism, colonialism, and economic exploitation led to war. He therefore argued that the antiwar movement's key legal proposals--disarmament, arbitration, a World Court, and outlawing war-- would be worthless without global decolonization and domestic civil rights. As he put it in 1926, “[t]here can be no real disarmament ... if white nations must hold” people of color “in chains,” and global governance would fail “[i]f America can go into the World Court and the League of Nations with her hands red in the blood of ... imperialism.”

Du Bois thus took a pragmatist approach to antiwar politics, focusing on the real-world conditions that he believed should shape the very idea of peace. “Peace on earth is no mirage,” he wrote, “[i]t is a solemn, awful necessity,” and “[i]ts solution lies in facing cold and cruel facts.” In light of the “cold and cruel facts” of racism and war, Du Bois thought the very idea of peace must include racial equality and self-government. As a result, he argued that the legal path to peace must include structural interventions in the socio-economic system to expand civil rights, democracy, and substantive equality. Du Bois's radical approach to antiwar politics and the law of peace also exemplified--and influenced--a long tradition of Black activists and civil rights lawyers who worked to build coalitions between civil rights and antiwar organizations in order to pursue the interconnected, cross-border goals of equality and peace. As Ella Baker put it in 1964, echoing a famous line from Martin Luther King, Jr.'s “A Letter from Birmingham Jail,” “[p]eople cannot be free until they realize that peace is not the absence of war or struggle, it is the presence of justice.”

Remembering the long tradition of Black antiwar activism and its more expansive definition of “peace” as “the presence of justice” enriches our picture of both the civil rights movement and the antiwar movement. On one hand, the history of Black antiwar activism suggests that the legal gains made by the peace movement, like the U.N. Charter's ban on aggressive war, were the result, at least in part, of civil rights organizing. Du Bois and other activists certainly used NAACP funding and The Crisis to help build public support for “outlawing war.” Reciprocally, this history shows how the gains made by the long civil rights movement, like the Civil Rights Act of 1964, were enabled, at least in part, by peace activism, as antiwar groups like the FOR collaborated with civil rights leaders like Du Bois, Murray, Baker, and King to pursue equal rights.

This is not to say that either the civil rights movement or the antiwar movement should simply be reduced or annexed to the other. Nor is it to say that the civil rights-antiwar coalition was always a smooth alliance. Du Bois, for example, was often frustrated by the racism of white peace activists, and on the global stage, anticolonial and antiwar activists sometimes united, and sometimes clashed, over conscientious objector rights. More broadly, any cross-movement collaboration has the potential to devolve into “movement capture,” with one movement commandeering another's agenda. But the history recounted in this Article suggests that despite their tensions, the civil rights movement and the antiwar movement in the United States were crucial conditions of possibility for each other's legal campaigns.

That history of cross-movement collaboration has both theoretical and practical implications. On a theoretical level, it should widen our sense of what counts as a claim for equality or a claim for peace. Activists like Du Bois argued that the legal regulation of warfare was deeply intertwined with the quest for equal rights--and vice versa--implying that we cannot easily separate war powers law from civil rights law, in either the domestic or the international legal context. Law-of-democracy reforms, for example, can be seen as antiwar projects, too, as they increase the ability of mass public mobilizations to constrain war. Remedies for climate change, similarly, have a significant part to play in both preventing military conflict and combating environmental racism. More broadly, structural economic changes to advance substantive global equality, which Adom Getachew describes as an effort to build a truly “domination-free international order,” may help constrain neo-imperialist warfare. And that concern for non-domination on a global scale can be seen as going hand-in-hand with “anti-subordination” approaches to civil rights law within the United States. Perhaps most concretely, the movement to demilitarize policing in the United States, as I have argued elsewhere, dovetails with both antiwar and civil rights values.

Indeed, precisely because values like peace or equality often cut across seemingly distinct areas of law and policy, the history recounted here implies that we should take a relatively capacious approach to defining social movement success. Social movement theorists typically define success quite narrowly as a movement's ability to “win key concessions” at the peak of its mobilization. But it is also crucial to recognize that even ostensibly failed movements can have long tails. The ideas they develop and the organizing skills they incubate frequently change law and society over time, sometimes by inspiring future activism on the same issue, as Du Bois influenced King's critique of the Vietnam War, and sometimes by supporting allied movements focused on other issues, as the pacifist FOR consistently backed civil rights activists.

At a practical level, this history also offers insights for movement building and movement lawyering. It reminds us that social movements are often strongest when they collaborate with allies over time. That means that movement lawyers should think expansively about the potential legal vehicles that might further any given policy goal, much as Pauli Murray argued that a permanent FEPC, with robust agency “powers” to protect equal rights, was crucial for creating “the right sort of peace” after WWII. For peace activism in particular, this suggests that antiwar lawyering can and should productively focus on a wide range of projects and goals, beyond or alongside the narrower--though important--emphasis that some critics have recently placed on formal opposition to war as such.

Finally, Du Bois's career shows how legal movements depend on the wider cultural work that is necessary to mobilize public support--what Du Bois called the “organ[s] of propaganda” that enable and reinforce “legal enactment.” Du Bois worked to build out the cultural infrastructure of the civil rights and antiwar movements by founding journals like The Crisis and Freedom and launching publicity institutions like the Peace Information Center. His career-long project to circulate his radical legal ideas through a variety of cultural channels culminated in his trial memoir In Battle for Peace, a work of “legal life writing” in which he told his own story about the lived experience of the law in order to publicize his antiwar views and preserve them for future generations of activists to remember and build upon.

Du Bois believed that such cultural memory was a crucial aspect of movement building. In an essay he wrote in 1960, near the end of his life, as he continued to be ostracized for opposing the Cold War, Du Bois recalled how his old friend Jane Addams had criticized “war-mongering” and racism in the United States, and he argued that despite the intense backlash Addams had faced for her antiwar views during WWI, “the memory of this great social worker has not been forgotten” and could still inspire activists like himself. In turn, the public memory of Du Bois's own legal campaigns for peace--a legacy that Du Bois's antiwar writing helped preserve--had enduring effects. As Martin Luther King, Jr. put it in 1968, as he advocated for the interconnected goals of socio-economic rights and the end of the war in Vietnam, “Dr. Du Bois has left us,” but his “spirit of freedom” still “has not died.”

In recent decades, lawyers and legal historians have worked to recover the “lost promise” of earlier social movements. That project is vital. But alongside that “lost promise” framing, it is also important to emphasize that many social movements--even those that seem to fail, or whose promise appears to be lost--in fact subtly shape and enable the mobilization of legal activists yet to come. The threads that connect social movements across issues and over time are not always easy to trace, but it is the effort of activists like Du Bois to spin those threads and stitch together ongoing campaigns that ultimately changes society, culture, and the law.

Climenko Fellow and Lecturer on Law, Harvard Law School; Assistant Professor of Law (as of Fall 2024), University of Houston Law Center