Civil Rights Since the Civil War
Welcome back to Constitutional Perspectives!
Last time, I talked all about how the Civil War transformed the Constitution, and how the Reconstruction Amendments reflected and formalized that transformation. But I left off on an ominous note:
This was seen by many at the time as completing the work. Slavery had been abolished, and the civil and political rights of the former slaves had been secured. And they all lived happily ever after, right?
Yeah, not quite.
Today, then, it is my solemn duty – in what will be the penultimate installment of Level One – to canvass the postwar history of civil rights. Because the defining feature of the Second American Republic is that, for about half its lifespan to date, its central promise was just a lie.
Practically as soon as the ink had dried on the Reconstruction Amendments, the Supreme Court, and the nation as a whole, set about nullifying them. Politically, Reconstruction proved to be a greater commitment than the North really wanted to sustain. The white South proved – in moments like the Colfax Massacre – willing to oppose the new regime of civil and political rights for the freedmen with violence. Countering that violence, and upholding the rights of African-Americans in the South, required the perpetual deployment of the Union Army.
And by 1876, the North's appetite for this considerable effort was waning. Republican presidential candidate Rutherford B. Hayes found himself in a contested election, and he struck a deal, trading the end of Reconstruction for the Presidency. The "Redemption" movement, the white Southern reaction against the regime of equal rights, was allowed to run wild without federal opposition. It had already claimed most of the Southern states even before the 1876 election. And over the next twenty years, all traces of black political power in the South were eradicated.
But wait, you say. Hadn't the Fifteenth Amendment just put voting rights for African-Americans in the Constitution?! It had... sort of. Technically all it said was that the right to vote could not be denied on account of race. This invited the white South to adopt all sorts of byzantine schemes that had the practical effect of disenfranchising African-Americans without saying in so many words that this is what they were doing. A typical scheme might look something like this: all voters were made to pass a literacy test. The test was preposterously difficult; often those who administered the test could not themselves have passed it. But they did not need to, because anyone whose grandfather had been registered to vote in 1860 was exempted from the test. Of course that meant white people. The Supreme Court upheld this kind of scheme in Giles v. Harris (1803).
Meanwhile it had turned the Fourteenth Amendment into a practical nullity. The work of nullification proceeded across three landmark cases. First, The Slaughter-House Cases (1873) held that the "privileges or immunities of citizens of the United States," protected against state interference by Section One of the Fourteenth Amendment, were only those rights specifically connected to membership in the federal Union. This meant things like the right to seek federal office or travel to the national capital. It conspicuously did not include the federal Bill of Rights – even though the plain intention of the framers of the Amendment had been to make the Bill of Rights apply to the states.
A few years later, the so-called Civil Rights Cases (1883) dealt with the question of Congress's enforcement powers. The Civil Rights Act of 1875 had forbidden racial discrimination in places of public accommodation (think theaters, restaurants, hotels, and the like). But the second sentence of the Fourteenth Amendment began with the words "No state shall..." It was suggested that Congress, in banning discrimination by private parties, had exceeded its powers of enforcement, which only extended so far as discrimination by the state governments themselves. And the Supreme Court agreed.
The final blow came in the most famous of all the Redemption cases: Plessy v. Ferguson (1896). I mentioned last time that, in the wake of emancipation, the Southern states had adopted "Black Codes" that maintained the social structure of the slave South as near as possible. The Fourteenth Amendment had banned these in turn. But the white South was not done cooking. Forbidden from expressly denying the freedmen their civil rights, they came up with the system of segregation. Southern society was divided between whites and blacks, each forced by law to keep to their own kind. The segregation laws were facially neutral between the races. But of course everyone knew that to be a sham. The purpose was the same as it had been with the Black Codes: to maintain white supremacy as the organizing principle of society to as great an extent as would be allowed.
A man named Homer Plessy brought a challenge to the segregation system, claiming that the law forbidding blacks and whites from using the same railroad cars violated the Equal Protection Clause. The case made its way to the Supreme Court, which infamously held that segregation was perfectly constitutional:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. ... The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.
My grandfather famously wrote of this passage that "the curves of callousness and stupidity intersect at their respective maxima." There are a few opinions in the annals of the Supreme Court where to read the opinion itself is to be convinced that it is wrong; Plessy is, I think, the leading example. The fallacy, if you want to be so generous as to call it that, is made clear in the last sentence quoted above: for the segregation laws forbade the voluntary consent of individuals of different races to associate with one another. The entire prospect of legislation requiring whites to treat blacks as their social equals was a phantom.
1896 was basically the nadir for civil rights. Plessy had completed the nullification of the Fourteenth Amendment. The segregation regime, or "Jim Crow" as it was familiarly styled, became entrenched as the defining characteristic of Southern communal life. The Republican Party, under the leadership of William McKinley, had almost entirely abandoned its commitment to the cause of civil rights. White America had fully reconciled itself from the terrible fraternal strife of the Civil War. The idea that rights for African-Americans could or should come between the white South and the white North had been put to bed; national unity had been restored.
But, you know, no one actually asked the black people, who never stopped advocating for their rights. In 1909, a group including W.E.B. Du Bois and Ida B. Wells founded the National Association for the Advancement of Colored People. In 1935, the NAACP hired Charles Hamilton Houston, then Dean of the Howard University School of Law, as its special counsel. Four years later, the NAACP created the Legal Defense Fund as a vehicle for Houston's activities – and those of his protégé Thurgood Marshall. They traveled the South, defending African-Americans from the predations of the Southern "justice" system.
And eventually they began a campaign against the segregation system itself. The premise of Plessy had been "separate, but equal." The LDF set out to show that this was a contradiction in terms: that, by its very nature, separate was not equal. At first this meant litigating within the Plessy framework. They brought case after case alleging that, in fact, the facilities provided for African-Americans were inferior to those afforded to whites. This strategy was highly successful: in 1950, for example, the LDF got the Supreme Court to rule that Texas had to admit a black man, Heman Marion Sweatt, to the University of Texas Law School, despite its segregation laws, because the school it had created (literally during the litigation) for blacks was an obvious joke, in no way equal to UT itself.
But of course all of this was merely prelude. Sweatt v. Painter had expressly not questioned Plessy's holding that "separate but equal," in principle, need not be unconstitutional. Two years later, the LDF was back at the Supreme Court with a direct assault on that holding. The case captivated the nation, and took a really long time for the Court to decide, during which Chief Justice Fred Vinson – quite sympathetic to segregation – died, and was replaced with California Governor Earl Warren. Along with Justice Felix Frankfurter, Warren maneuvered the Court into issuing a unanimous decision in Brown v. Board of Education (1954), holding that racial segregation in schools was, in fact, per se unconstitutional. (Whether this applied to other kinds of segregation – public parks? water fountains? restrooms? swimming pools? – was ostensibly left open in Brown itself. But as those questions found their way to the Court, it decided them in unsigned, per curiam opinions that simply said "yes this is illegal, see Brown.")
This kicked off the Civil Rights Movement in earnest. The NAACP had won its great victory in court; now the task was to make that victory a reality. As it had eighty years prior, the South pitched a fit. Through what it called "Massive Resistance," the South swore to prevent implementation of Brown. In the winter of 1956, essentially the entire Southern delegation in Congress had signed the "Southern Manifesto," endorsing this campaign of resistance and accusing the Supreme Court of having overstepped its bounds. Amidst all this, in 1955, the Court decided Brown II, holding that integration did not need to happen immediately, but with "all deliberate speed." Emphasis, as the South would have it, on "deliberate."
In response, the NAACP, joined by organizations like Martin Luther King, Jr.'s Southern Christian Leadership Conference and the Student Nonviolent Coordinating Committee, launched an advocacy campaign designed to sway the broader public. The Movement had one confrontation after another with the pro-segregation forces, which had broad control of government throughout the South. These confrontations had more or less the effect the Movement wanted; by the mid-1960s, national sentiment was pretty clearly on their side, not least because of the brutality the South had been visiting upon the civil rights protesters.
All of this led to the passage, in 1964, of the first real, strong civil rights bill since the end of Reconstruction. Proposed by President John F. Kennedy – a moderate supporter of civil rights – and then championed by Lyndon Johnson after Kennedy's assassination, the '64 Act forbade racial discrimination in public accommodations and in employment. It also gave the Justice Department real enforcement powers. The validity of the Act was questioned, in light of the Civil Rights Cases (which had, after all, invalidated a highly similar law). But the Court – quite different in its outlook from eighty years prior – upheld the law in Heart of Atlanta Motel v. United States (1964), holding it a valid exercise of Congress's power to regulate interstate commerce.
The following year, also with President Johnson's strong support, Congress passed a Voting Rights Act that systematically dismantled the system of black disenfranchisement in the South. Using its power to enforce the Fifteenth Amendment, Congress expressly banned the various schemes and devices that had been used since Redemption to achieve racial disenfranchisement without running afoul of a narrow, formal view of the Amendment. The Court upheld this law, too, in South Carolina v. Katzenbach (1966) and Katzenbach v. Morgan (1966).
Of course it would be a vast oversimplification to say that, with the passage of the Civil Rights Act and the Voting Rights Act, the work was done. There were more enforcement challenges, more civil rights bills that needed to be passed in the years ahead, expanding and strengthening the federal law of civil rights. Integration of schools in particular has proven especially challenging, and to this day a shockingly small degree of progress has been made. After Richard Nixon's victory in the 1968 election, which was largely powered by backlash against the Civil Rights Movement and which enabled Nixon to appoint four Justices to the Supreme Court, the Court became more of a hindrance than a help on school integration. And in Shelby County v. Holder (2013), the Court blew up the most powerful enforcement mechanism of the Voting Rights Act.
But it is fair to say that, after 1965, the Reconstruction Amendments were more or less a reality, as they had not been at any point, really, since their enactment. At long last, America had been made into a multiracial democracy.
Will it remain one? Well, we'll see.