Civil Rights

• Author: Jack Greenberg
• Pages: 387-394

Page 387

The core of the concept "civil rights" is freedom from RACIAL DISCRIMINATION. Although the term, not improperly, often refers to freedom from discrimination based on nationality, alienage, gender, age, sexual preference, or physical or mental handicap?or even RELIGIOUS LIBERTY, immunity from official brutality, FREEDOM OF SPEECH, the RIGHT OF PRIVACY, and additional rights found in the Constitution or elsewhere?other terms can characterize these rights. Sometimes they are referred to as CIVIL LIBERTIES or by particular names (for example, gender or handicap discrimination). Although the racial discrimination cases have influenced doctrinal development in many of these other areas, standards governing them often differ at the levels of both judicial scrutiny and appropriate remedies. Racial discrimination deserves separate treatment.

The constitutional law of civil rights begins in the THIRTEENTH, Fourteenth, and FIFTEENTH AMENDMENTS. These " CIVIL WAR amendments" were adopted during RECONSTRUCTION to effect a radical revision of the status of blacks and a sharp change in relations between national and state governments. Until the end of the Civil War, the situation of black people had been dominated by SLAVERY in the South and a regime under which, in the words of the Supreme Court in DRED SCOTT V. SANDFORD (1857), they had no rights that a white man was bound to respect. Their legal rights or disabilities derived from state law, subject to no meaningful control by the national government. The Civil War amendments changed that. The Thirteenth Amendment abolished slavery; the Fourteenth, among other things, prohibited states from denying to any person DUE PROCESS OF LAW or EQUAL PROTECTION OF THE LAWS. (Other provisions of the Fourteenth Amendment had little practical effect). The Fifteenth Amendment protected VOTING RIGHTS against governmentally imposed racial discrimination.

Each amendment empowered Congress to adopt enforcing legislation. Such laws were enacted?most notably the CIVIL RIGHTS ACT OF 1866?but they were not implemented, were interpreted restrictively, or fell into disuse following the COMPROMISE OF 1877 which assured the Presidential election of RUTHERFORD B. HAYES in exchange for his pledge to withdraw Union troops from the South and end Reconstruction. During the same period southern states, effectively free from national control, implemented BLACK CODES, and later Jim Crow laws, which returned black people to a status that was only nominally free. No significant national civil rights law was adopted again until the mid-1960s.

Page 388

Between Reconstruction and the mid-twentieth century, the judiciary sporadically found significant content in the Civil War amendments; yet racial SEGREGATION and discrimination remained pervasive in the South and widespread elsewhere. During the same period, the Fourteenth Amendment was interpreted expansively to protect burgeoning business enterprise. Between BROWN V. BOARD OF EDUCATION (1954) and the CIVIL RIGHTS ACT OF 1964, the main period of the modern civil rights revolution, the doctrinal potential of the amendments to advance the cause of black people became largely realized. Implementation became the main task, taking the form of comprehensive civil rights statutes, lawsuits brought by the United States and private parties, and administrative enforcement. As a result of this process, some whites have charged that remedies for blacks violate their constitutional rights: for example, that AFFIRMATIVE ACTION constitutes "reverse discrimination," or that SCHOOL BUSING for integration injures them. Justice OLIVER WENDELL HOLMES ' aphorism, "the life of the law has not been logic: it has been experience," is as least as true of civil rights law as of any other branch of law.

The concept of "equal protection of the laws" underwent its greatest evolution between 1896, when PLESSY V. FERGUSON upheld a state law requiring SEPARATE BUT EQUAL segregation of whites and blacks in intrastate rail travel, and 1954, when Brown v. Board of Education held that segregated public EDUCATION denied equal protection. Although Plessy dealt only with intrastate transportation and Brown only with education, each was quickly generalized to other aspects of life.

The very factors which the Supreme Court invoked to uphold segregation in 1896 were reassessed in Brown and used to justify a contrary result. The Plessy majority held that the framers of the Civil War amendments did not intend to eliminate segregation in rail travel which the Court characterized as a social, not a political activity. It thereby distinguished STRAUDER V. WEST VIRGINIA (1880), in which the Supreme Court had held that excluding blacks from juries violated the Fourteenth Amendment because it stigmatized them. Plessy dismissed the argument that segregating blacks from whites could justify segregating Protestants from Catholics, because that would be unreasonable; racial segregation was reasonable, for state court decisions and statutes had authorized segregation in schools. Finally, the Court addressed what today is called social psychology, writing that although Plessy claimed segregation connoted black inferiority, whites would not consider themselves stigmatized if they were segregated by a legislature controlled by blacks. Any harmful psychological effects of segregation were self-inflicted.

Plessy became so deeply ingrained in jurisprudence that as late as 1927, in GONG LUM V. RICE, a Court in which Holmes, LOUIS D. BRANDEIS, and HARLAN F. STONE sat unanimously agreed that racial segregation in education "has been many times decided to be within the constitutional power of the state legislature to settle, without the intervention of the federal courts under the Federal Constitution."

Other Supreme Court decisions, however, offered hope that some day the Court might come to a contrary conclusion. In YICK WO V. HOPKINS (1886) the Court invalidated as a denial of equal protection a city ordinance which, under the guise of prohibiting laundries from operating in wooden buildings, where virtually all Chinese laundries were located, excluded Chinese from that business. In BUCHANAN V. WARLEY (1917) it invalidated racial zoning of urban land under the due process clause. Later it struck down state laws prohibiting blacks from participating in primary elections. By 1950, in SWEATT V. PAINTER and MCLAURIN V. OKLAHOMA STATE REGENTS, the Court invalidated segregation in law school and graduate education, without holding segregation unconstitutional per se and without abandoning the separate-but-equal formula. These and other decisions foreshadowed Brown and undermined precedents approving segregation.

Brown contradicted or distinguished Plessy on every score. It read the legislative history of the Civil War Amendments as inconclusive on the question of school segregation, pointing out that although after the Civil War public education had been undeveloped and almost nonexistent for blacks, it had become perhaps the most important function of state government. In effect the amendment was treated as embodying a general evolutionary principle of equality which developed as education became more important. The Court treated early precedents as not controlling school segregation and drew from the 1950 graduate school cases support for a contrary result.

In contrast to Plessy 's dismissal of the psychological effects of segregation, Brown held that "to segregate them [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." The Court cited social science literature in support of this response to Plessy. This portion of the opinion provoked much adverse commentary, some condemning the decision as based on social science, not law. But of course, Plessy had come to its sociological conclusions without any evidence at all.

In BOLLING V. SHARPE, a companion case to Brown, the Court decided that the Fifth Amendment's due process clause prohibited school segregation in the District of Columbia. Any other result, the Court said, would be "unthinkable."

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The contending arguments in Plessy and Brown not only exemplify the possibilities of legal advocacy but also raise the question how "equal protection" could be interpreted so differently at different times. After all, the arguments remained the same, but first one side prevailed, then the other. The reason for the change lies in the development of American history. Indeed, Brown suggests as much in describing how much public education had changed between Reconstruction and 1954, how essential education had become for personal development, and how much blacks had achieved. By 1954 black citizens had fought for their country in two major World Wars, the more recent of which was won against Nazi racism; had moved from concentration in the South to a more even distribution throughout the country; and had achieved much socially, politically, economically, and educationally, even though their status...