American Civil Liberties Union Briefing Paper Number 11 +--------------+ RACIAL JUSTICE +-

American Civil Liberties Union Briefing Paper Number 11 +--------------+ RACIAL JUSTICE +--------------+ +----------------------------------------------------------+ | "We hold these truths to be self-evident, that all men | | are created equal, that they are endowed by their | | Creator with certain unalienable Rights, that among | | these are Life, Liberty, and the pursuit of Happiness." | | | | The Decaration of Independence | +----------------------------------------------------------+ In 1776, the American revolutionaries issued that bold and eloquent tribute to the principles of self-determination and human equality, the Declaration of Independence. Yet at the very time the Declaration of Independence was proclaimed, chattle slavery had existed in the Western hemisphere for nearly two centuries, and almost one quarter of the North American population lived in total bondage. The United States Constitution, with its ten amendments that comprised the Bill of Rights, did not correct this glaring contradiction. In fact, the Constitution explicitly legitimized the institution of slavery in three of its provisions: It counted a slave as only three-fifths of a person for the purpose of apportioning seats in the House of Representatives; it prohibited Congress from abolishing the slave trade until 1808, and it provided for the swift return of fugitive slaves to their owners. To the new nation's enslaved people of African descent, the Constitution underscored, rather than provided relief for, their condition of servitude. As a symbolic comment on that reality, during the early 1800s white abolitionist William Lloyd Garrison burned a copy of the Constitution at an anti-slavery rally in Boston, to the cheers of thousands of supporters. =============== THE SLAVE CODES =============== In contrast to the condition of entitlement and privilege enjoyed by white Americans, black people in bondage lived under a system founded on repression and terror. Under the "Slave Codes" that regulated every aspect of their lives, enslaved blacks had no access to state courts and could not make contracts or own property. A slave could not strike a white person, even in self-defense. And the rape of a slave woman was considered, not a violent assault on a human being, but a trespass against a white person's property. The codes were mercilessly enforced through slave tribunals, night patrols, public rituals of torture (such as whipping, branding and even boiling in oil), imprisonment and death. Of those blacks who organized or participated in revolts against slavery, few survived. Nonetheless, history records 250 slave rebellions during the centuries that slavery existed. In 1857, against a backdrop of increasing national disunity over the issue of slavery, the U. S. Supreme Court announced its decision in the case of _Dred Scott v. Sandford_. Dred Scott was a freed slave who, upon being reenslaved when he returned to the South from a trip North with his former master, sued in federal court for his permanent emancipation and citizenship status. The Court ruled that no blacks, whether slave or free, could be citizens of the United States because the Constitution itself excluded them from the national community. This exclusion, said the Court, was justified by the fact that blacks were "subordinate and inferior beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority." Black abolitionist Frederick Douglass was prescient when he said of the _Dred Scott_ decision: The Supreme Court is not the only power in this world. We, the abolitionists and colored people, should meet this decision, unlooked for and monstrous as it appears, in a cheerful spirit. This very attempt to blot out forever the hopes of an enslaved people may be one necessary link in the chain of events preparatory to the complete overthrow of the whole slave system. Four years later, the Civil War erupted. ================================ EMANCIPATION AND THE BLACK CODES ================================ Two years into the Civil War, on January 1, 1863, President Abraham Lincoln issued the Emancipation Proclamation, an executive fiat that freed all the slaves in the Confederate states. In the course of the war, hundreds of black men, women and children served the Union cause as cooks, couriers and spies; 179,000 black men fought in the Union army, and 37,300 of them died. On December 6, 1865, six months after the war ended in a Union victory, the states abolished the institution of slavery forever by ratifying the Thirteenth Amendment: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." The vanquished Confederacy did not accept defeat gracefully. In response to the Thirteenth Amendment, the Southern states revived the Slave Codes, now labeled the "Black Codes," and imposed on African Americans a status that differed from slavery in name only. For example, South Carolina's code provided that: blacks could not enter and live in the state unless they posted a $1,000 bond; and no black person could become a shopkeeper, artisan or mechanic or pursue any other business without obtaining a court license -- which the courts could arbitrarily refuse to grant. Throughout the South, "lack of means of visible support" was a crime, and both black and white partners of interracial marriages could be sent to prison for life. These practices reflected determination on the part of white citizens of the Old South to keep black people, if not in chattles, in political, economic and social bondage. ============== RECONSTRUCTION ============== The centerpiece of the postwar period -- referred to, historically, as Reconstruction -- was a Congress dominated by the anti-slavery Radical Republicans. These political leaders, infuriated by the recalcitrance of the former Confederacy, set about dismantling the vestiges of slavery through enactment of a succession of new laws and constitutional amendments. In March 1866, Congress passed its first Civil Rights Act by an overwhelming majority. The Act guaranteed federal protection for freed slaves, invalidated the Black Codes and explicitly conferred "the rights of citizenship" on all black people. The Fourteenth Amendment was drafted in the same year and sent to the state legislatures for ratification. Its purpose was to put the weight of the Constitution behind the Civil Rights Act of 1866, and to apply the Bill of Rights to state and local governments. The Fourteenth Amendment, ratified on July 9, 1868, conferred citizenship upon all persons born in the United States, and forbade the states from depriving any person "of life, liberty or property without due process of law," or denying to any person "equal protection of the laws." In 1869, the Fifteenth Amendment was passed by Congress and ratified a year later, on February 3. This last of the Civil War amendments enfranchised the freed slaves: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Congress enforced the Reconstruction of the South by maintaining a strong military presence throughout the region. It established the Freedmen's Bureau to provide emergency relief for the war weary and impoverished, both black and white, and set up special courts to arbitrate disputes between the races. Congress also facilitated a massive voter registration campaign. By 1867, there were 735,000 blacks and 635,000 whites on the voting rolls in the ten states of the Old South. State constitutional conventions, dominated by Radical Republicans and emancipated slaves, enacted state constitutions that contained some of the most enlightened provisions ever conceived in our nation. Some of the ten documents obligated the states to care for the poor, sick and mentally ill, eliminated debtors' prisons, and eliminated property qualifications for voting and holding public office. All of them called for universal public education and universal male suffrage. But this era of enlightenment was not to last long. For even as the Reconstruction legislatures and Freedmen's Bureau were attempting to reorder the political, economic and social relations of the South, the forces of white supremacy were organizing to undo what had been accomplished. ====================== RECONSTRUCTION SPURNED ====================== As the 1870s ensued, white supremacist groups, whose members were drawn from the ranks of Confederate Army veterans, Rifle Clubs, White Leagues, Red Shirts and the Ku Klux Klan embarked on a campaign of relentless terror against blacks and their white supporters. The mission of such groups was to destroy the Reconstruction state governments through intimidation of voters, and to run blacks out of all areas of public life. Boasted one Ku Klux Klan official: "I intend to kill Radicals." During the state and local elections of 1874, blacks who showed up at polling places, intending to vote, were surrounded by white mobs and beaten. A black senator from Mississippi was murdered by night riders. Congress passed the final piece of legislation associated with Reconstruction, the Civil Rights Act of 1875, guaranteeing equal access to public accommodations regardless of race or color. But by 1876, the South was moving full tilt in the direction of consolidating its reversal of the Reconstruction process, with only Louisiana, South Carolina and Florida still retaining Republican governments. The rest of the state legislatures had been "redeemed" by Southern Democrats opposed to racial equality. A disheartened and angry Frederick Douglass, speaking at the Republican National Convention of 1876, asked: "What does it all amount to if the black man, after having been made free by the letter of your law, is to be subject to the slaveholder's shotgun? The real question is whether you mean to make good to us the promises of your Constitution." The Republican Party answered Douglass's question with a resounding "no" by nominating Rutherford B. Hayes, whose campaign had stressed home rule for the South. Soon after being elected President of the United States, Hayes implemented what would become known as the "Compromise of 1877": The federal government withdrew the last of its troops from the South, and African Americans were left to defend their rights of citizenship as best they could under extremely adverse conditions. Reconstruction had not fundamentally altered the social structures of the South that existed before the Civil War. Thus, disfranchisement, total exclusion from the political process and pervasive poverty were to characterize the lives of Southern blacks well into the 20th century. ============================ THE SUPREME COURT ACQUIESCES ============================ The United States Supreme Court, through its decisions, could have undergirded and breathed life into the constitutional amendments and civil rights legislation enacted in the wake of the Civil War. But it chose, instead, to assist in emasculating the achievements of Reconstruction. In 1883, the Court announced its decision in the _Civil Rights Cases_, five consolidated cases that challenged the constitutionality of the Civil Rights Act of 1875. The Court struck the Act down, on the ground that the Civil War Amendments regulated only government action and, thus, did not bar discrimation by such private individuals as hotel owners, theater proprietors and railroad companies. The _Civil Rights Cases_ decision unleashed a hail of new anti-black laws throughout the South. These laws, called "Jim Crow" laws after the title of a minstrel song portraying blacks as childlike and inferior, enforced a rigid caste system of segregation and discrimination that reached into every corner of Southern life. Blacks and whites were separated on trains, in depots, and on boat wharves. Blacks were excluded from white hotels, barber shops, restaurants and theaters. And by 1885, most Southern states maintained segregated school systems. Segregation laws sometimes carried the theme of racial separation to incredible extremes: For example, in Birmingham, Alabama, it was a crime "for a Negro and a white person to play together or in the company of each other at checkers or dominoes." The Supreme Court finally ruled on the constitutionality of Jim Crow laws in 1896, in the historic case of _Plessy v. Ferguson_. The petitioner was Homer A. Plessy, whose racial identity was determined to be "seven-eighths" white and "one-eighth" black. Mr. Plessy, after refusing to obey a conductor's order to leave the first class coach of a Louisiana railroad train where he had taken a seat, had been arrested and convicted of "going into a coach or compartment to which by race he does not belong." The Supreme Court, taking the opportunity presented by Plessy's appeal to place its imprimatur on the "separate but equal" doctrine, ruled that Jim Crow laws did not violate the Thirteenth or Fourteenth Amendments. Going a step further, the Court scolded African Americans for taking offense at discrimination: 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 lone dissenter on the Court, Justice John Marshall Harlan, wrote with great foresight: "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case." The years following the _Plessy_ decision were times of severe economic hardship and political powerlessness for African Americans. The Southern states instituted a variety of measures, such as literacy tests and poll taxes, that effectively disfranchised blacks. For example, black voter registration in Louisiana declined from 130,334 in 1896 to only 5,320 in 1900. Blacks who dared to object, and even many who did not, often fell victim to Ku Klux Klan terrorism. Indeed, at least 3,600 lynchings of black people (ritualized hangings or burnings of blacks by white vigilantes) occurred between 1884 and 1914. The South was not the only region of the country inhospitable to black citizens. As the 19th century gave way to the 20th, race riots in Northern cities became increasingly commonplace, as did discriminatory laws and practices. =================== THE WINDS OF CHANGE =================== But the turn of the century was also accompanied by the stirrings of change. In June 1905, the Harvard-educated historian and sociologist, W.E.B. DuBois, brought together a group of young black intellectuals in Niagara Falls, Canada to draw up a platform for change that listed, among its priorities, black suffrage and the abolition of all legal distinctions based on race. Incorporating themselves as the Niagara Movement, these activists subsequently joined with white social reformers and veterans of the abolitionist crusade to organize, in 1909, the National Association for the Advancement of Colored People (NAACP). The NAACP adopted a program that demanded equality in education, enforcement of the Fourteenth and Fifteenth Amendments, and an end to all forced segregation. Other organizations sprang up in response to the example set by the NAACP, including the Commission on Interracial Cooperation and the National Urban League. As the movement for racial equality under the law burgeoned and confronted offialdom with new challenges to legal discrimination, the Supreme Court began to chip away at the edifice of Jim Crow. In 1917, in _Buchanan v. Warley_, the Court declared that a Louisville, Kentucky ordinance requiring residential segregation violated the Fourteenth Amendment. By 1921, the NAACP had 400 branches throughout the United States, and the civil rights movement had become a fixture of the American landscape. Throughout the Depression years, the movement and its institutions experienced membership growth, continued philanthropy from white supporters and incremental legal victories. World War II further energized the movement: Black soldiers, after fighting and dying for freedom abroad by the tens of thousands -- in a segregated U.S. army -- returned more determined than ever to win freedom at home. In 1946, in _Morgan v. Commonwealth of Virginia_, the Supreme Court struck down segregation in interstate bus travel and in railway dining cars. In 1948, in _Shelley v. Kraemer_, the Court ruled that "restrictive covenants" used to bar the sale of private residential properties to blacks, were unconstitutional. And in 1950, in _Henderson v. United States_, the Court affirmed its rejection of segregated facilities in bus and train travel. ======================== BROWN AND ITS AFTERMATH ======================== Notwithstanding the Cold War climate of political repression and contempt for civil liberties that blanketed the land as the 1950s dawned, the civil rights community was in a mood to attempt a direct hit on the "pernicious" separate but equal doctrine. The target the NAACP chose for what would be its frontal assault on legal segregation was the field of education. In 1952, NAACP legal director Thurgood Marshall argued five consolidated cases from Delaware, the District of Columbia, Kansas, South Carolina and Virginia before the Supreme Court, over which a new Chief Justice, Earl Warren, presided. On May 17, 1954 the Court announced its most farreaching decision of this century, in _Brown v. Board of Education_. Speaking for a unanimous Court, Chief Justice Warren wrote: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal...Any language in _Plessy v. Ferguson_ contrary to this finding is rejected." The _Brown_ decision set the precedent for the overturning of other forms of government-imposed segregation. The courts soon ordered the desegregation of parks, beaches, sporting events, hospitals, publically-owned or managed accommodations and other public facilities. But court decisions are not handed down in a vacuum, and they were not sufficient to close out this chapter of our nation's history. Turmoil reigned in the Deep South, where black people, pushed to their limit of endurance and inspired by visionary leadership, had opted for non-violent direct action to challenge discrimination. The protests -- which included, among many other campaigns, the Montgomery bus boycott, the Greensboro lunch counter sit-ins, the Freedom Rides and the Mississippi Freedom Summer voter registration drive -- were met with police violence, mob assaults and murder. But the protesters and their supporters would not give up. As the movement pressed on, the entire nation bore witness, through television, to the violent efforts to suppress it. Feeling enormous moral pressure, the American people responded: On August 28, 1963, a quarter of a million Americans joined in a March on Washington for racial justice -- until that date, the largest protest demonstration in the nation's history. Now the federal government had to respond to the protesters' grievances with concrete remedies. ======================= A SECOND RECONSTRUCTION ======================= After almost a century of inactivity on civil rights issues, Congress embarked on an aggressive legislative program to end segregation "root and branch." First, it passed the Civil Rights Act of 1964, which declared certain private acts of discrimination unlawful. Title II of the Act prohibited discrimination in privately-owned facilities open to the public (hotels, restaurants, swimming pools, etc.); Title VI forbade discrimination in federally-funded programs, and Title VII prohibited employment discrimination in both the public and private sectors. In 1965, Congress passed the Voting Rights Act, which finally put teeth into the long ignored Fifteenth Amendment. The Act outlawed such devices as literacy tests, which had been deliberately fashioned to disqualify blacks from voting, and assigned the supervision of new registration procedures to the U.S. Department of Justice. Congress also required Justice Department pre-clearance of all proposed changes in election procedures and laws in states that had a history of legal discrimination. Next, Congress passed the Civil Rights Act of 1968 -- one week after Martin Luther King, Jr. was assassinated on a hotel balcony in Memphis, Tennessee. The Act, which was the country's first open housing law, prohibited discrimination in the sale, rental, financing and advertising of housing. During this "Second Reconstruction," the Supreme Court acted differently than it had during the first: The Court upheld the new laws as legitimate exercises of the Congressional will to undo past injustices. In case after case, throughout the 1960s and 1970s, federal courts struck down discriminatory laws and practices -- in the areas of employment, public accommodations, voting, education, the administration of justice -- and designed new and creative remedies intended at least to lessen the effects of 300 years of slavery, and 100 years more of pervasive racial discrimination. The courts based their decisions, not only on the most recent civil rights legislation, but also on its precursors -- those post-Civil War amendments and laws that had been buried for almost a century. Judge John Minor Wisdom of the U.S. Fifth Circuit Court of Appeals, which covers the states of the Deep South, captured the spirit of the times in his opinion in _U.S. v. Jefferson County Board of Education_ (1966): Brown's broad meaning, its important meaning, is its revitalization of the national constitutional right the Thirteenth, Fourteenth and Fifteenth Amendments created in favor of Negroes. This the right of Negroes to _national_ citizenship, their right as a class to share the privileges and immunities only white citizens had enjoyed as a class. _Brown_ erased _Dred Scott_, used the Fourteenth Amendment to breathe life into the Thirteenth, and wrote the Declaration of Independence into the Constitution. Freedmen...are created as equal as are all other American citizens and with the same unalienable rights to life, liberty, and the pursuit of happiness. African Americans were not the only beneficiaries of their struggle for freedom, or of what one scholar has called the "egalitarian revolution in Constitutional law" that their struggle set in motion. The black movement galvanized other racial and ethnic minorities -- Native Americans, Hispanics, Asians -- as well as women, the elderly, the young, gay men and lesbians, prisoners, soldiers and disabled people, to organize and demand _their_ rights. Indeed, all Americans have benefited from the civil rights laws and legal precedents established in recent decades. ============ THE BACKLASH ============ A core concept of the Second Reconstruction was that removing the formal, legal barriers arrayed along the path to equal opportunity was not, by itself, enough. Since black people had experienced centuries of exclusion, compensatory measures would also be necessary to unburden them and make the promise of full equality a reality. This concept was embraced on the highest level of our federal government -- the White House. In 1965, in a speech at Howard University, President Lyndon Johnson observed: Freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please. You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'you are free to compete with all the others,' and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity." That perspective is reflected in the remedies the federal courts have crafted to try to overcome the consequences of past discrimination. For example, in cases where employers have had a proven history of discriminatory hiring practices, courts have often ordered the employers to adopt "affirmative action" plans. Such plans have usually required both the active recruitment of minority job applicants, and the setting of goals and timetables for the hiring and promotion of minorities to positions from which they had been historically, or were currently, excluded. In practice, the achievement of an affirmative action goal in the workplace has sometimes required the hiring of qualified minorities ahead of qualified whites. And in education, where segregated schools are often the consequence of segregated housing patterns, courts have sometimes felt compelled to order the busing of black and white students in order to achieve racial integration. The moral consensus in favor of such compensatory remedies that existed at the height of the civil rights movement began to break apart during the mid- 1970s, when many white Americans began to perceive affirmative action as a threat to the advantages they had long enjoyed under a discriminatory system that benefited whites. This backlash took encouragement from President Richard Nixon's campaign to pass a constitutional amendment prohibiting the busing of schoolchildren to achieve desegregation. The backlash gained further steam with Ronald Reagan's election to the Presidency. The Reagan Administration tried to repeal key sections of the Voting Rights Act, stopped enforcing civil rights laws and targeted affirmative action for explicit and intense criticism, falsely labeling it as a program of "racial quotas" and "reverse discrimination." Unfortunately, that misguided terminology and the white resentment it fosters have outlasted the Reagan years, making the danger of another civil rights rollback increasingly real. ======================================= WILL THE SUPREME COURT ACQUIESCE AGAIN? ======================================= In 1989, as it did in the late 19th century, the Supreme Court once again rendered a series of decisions that seriously eroded decades of civil rights advancement. For example, the decisions in two important employment discrimination cases undermined the availability of judicial relief to victims of job bias: In _Patterson v. McLean Credit Union_, the Court ruled that while the Civil Rights Act of 1866 bars discrimination in hiring, it does not prohibit racial harassment on the job; and in _Wards Cove v. Atonio_, the Court reversed 18 years of legal precedent under the Civil Rights Act of 1964, when it relieved employers of the burden of proving that an employment practice that effectively screened out minorities was a "business necessity." These and other recent decisions prompted one of the dissenters, Justice Harry Blackmun, to exclaim: "One wonders whether the majority still believes that discrimination is a problem in our society, or even remembers that it ever was." In the past 40 years, the Supreme Court was a leader in championing the cause of civil rights. Today, the Court is leading the retreat. ====================== A NEW CIVIL RIGHTS ACT ====================== At this writing, a new Civil Rights Act is before the Congress. The Act, which is supported by a broad coalition of civil rights, women's and religious organizations, was conceived to restore the statutory civil rights protections eliminated by a series of decisions that the Supreme Court handed down in its 1989 term. It was first introduced as the "Civil Rights Act of 1990" and was overwhelmingly passed by Congress in early October of that year. But President Bush, culminating a lobby campaign during which his administration repeatedly mischaracterized the legislation as a "racial quota" bill, vetoed it on October 22, 1990. The current bill, titled the Civil Rights Act of 1991, awaits Congressional action. American society is burdened with a legacy of monumental racial injustice that began with the largescale destruction of North America's indigenous peoples, and includes the subjection of an estimated total of ten million African people to the ravages of the slave trade and slavery. Since slavery was only yesterday, on the historical clock, it is no wonder that our nation has experienced wrenching turmoil from the end of the Civil War up to the present. More difficulties lie ahead, and many problems remain to be resolved. But we can take great pride in the fact that we have made enormous progress, in a relatively short time, towards ensuring that all Americans enjoy -- equally -- the promise and protections of the United States Constitution and its Bill of Rights. A C L U American Civil Liberties Union, 132 West 43rd Street, New York, N.Y. 10036 ============================================================== ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"