Civil rights

• SIGNIFICANCE: Civil rights are among the most basic of all conceptions of human individual rights, but they must be paired with civil liberties to be effective.

Civil rights are typically paired with civil liberties; together they constitute the realm of human individual rights. Civil liberties are negative limits on government’s treatment of private citizens. In the United States, civil rights are affirmative obligations that various levels of government have to protect citizens from coercion (often called discrimination) by the government or by private citizens. In Canada, civil rights are exclusively defined as the government’s obligation to protect one person from actions by another individual. Both are important parts of human rights, particularly for democratic governments, since how well a regime protects its citizens individually is of paramount concern.

Civil liberties have a longer, clearer relationship to US government than do civil rights, given that US history began with the Constitution’s negative commands. From the country’s founding in 1787 to the Civil War (1861–65), constitutional theory protected state governments (and only indirectly their citizens) from the federal government’s power. During this period, the provision considered to be the most important of the Bill of Rights was the Tenth Amendment: “The powers not delegated to the United States by the constitution, nor prohibited by it to the states are reserved for the states respectively, or to the people.”

The argument that the Bill of Rights restrained only the national government stemmed from the wording of the First Amendment, which begins, “Congress shall make no law.” Although this phrase was omitted from the other nine amendments, the unwritten assumption was that the word “Congress” should be applied to all ten. It was natural for this assumption to be tested, as it was in Barron v. Baltimore (1833). Barron’s livelihood came from a wharf that was rendered useless when the city of Baltimore dumped paving debris in the water, raising the bottom of the bay too high near the wharf. Barron decided to sue for money to recompense himself for his loss of livelihood. Baltimore was a subunit under Maryland State, whose constitution did not provide for the guarantee against such losses, which the federal constitution’s Fifth Amendment did. Thus, aware that he could not succeed in the Maryland courts, Barron turned to the federal courts. However, the Supreme Court regarded the Fifth Amendment as applying only to the federal government and told Barron that if the Maryland constitution did not offer him protection, he could not receive it from the federal government. This decision made it clear that the first ten amendments to the US Constitution applied only to the federal government and not to the states.

The pre–Civil War conception of civil rights showed clearly in the case of Scott v. Sandford (1857). Dred Scott was an enslaved man sold to a new owner who took him into a free state, into a free territory, and then back into a slave state. Since the US Constitution’s language did not include the word “slavery,” it was not clear whether Scott’s time in free areas meant that he had become free. In the highly politically charged pre–Civil War atmosphere, the Supreme Court might well have found that Scott was still an enslaved person on narrow technical issues, but it went far beyond that by declaring the 1820 Missouri Compromise unconstitutional. This was the first congressional enactment to be invalidated since Marbury v. Madison (1803). Since the 1820 compromise had prevented a clash between North and South over slavery, the decision had explosive consequences leading to the Civil War. Another critical effect of the Dred Scott decision was to reinforce the notion that one had citizenship in one’s home state as well as another set of rights acquired only through that state in the national government, and that the limits on the national government did not necessarily apply to the state government.

The Fourteenth Amendment

After the Civil War, Congress sought to insert language into the Constitution that would at least potentially reverse both Barron and Scott. The Fourteenth Amendment’s first section has four parts, the first of which reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This first statement seeks to undo the notion of citizenship established in Barron, whereby persons are primarily considered citizens of the state in which they reside and only secondarily, through that state, citizens of the United States. The Fourteenth Amendment’s constitutional language certainly appears to mean that all persons, Black or White, were to be citizens both of the United States and of the state in which they lived simultaneously and that African Americans could not be denied citizenship as they had in southern states. This allowed the US Constitution to reach through the boundaries of the state to reach each individual citizen.

The Fourteenth Amendment then states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” From a reading of the “plain meaning of the text,” these words would seem to reverse the Court’s decision in Barron by insisting that in subsequent comparable cases, those who found themselves in situations like Barron’s could not be denied their property without “due process of law.”

The Supreme Court’s Response

The Supreme Court, however, did not initially respond as if such were the case; instead, it seemed to resurrect the pre–Fourteenth Amendment constitutional understanding. In one important case, hundreds of butchers in New Orleans, operating as small individual businesses typical of nineteenth-century America, were thrown out of business after what is widely regarded as the corrupt passage of a law in the Louisiana legislature granting a state franchise (monopoly) to one company. The butchers sued, arguing that they had been deprived of their property (their livelihood) by the state “without due process of law.” In what seems a very curious decision today, the Supreme Court ruled in what are known as the Slaughterhouse cases (1873) that the Fourteenth Amendment sought only to make Black citizens equal with White citizens and did not affect the relationships between White persons (that is, butchers as butchers).

A few years later, in the Civil Rights cases (1883), the Supreme Court invalidated the Civil Rights Act of 1875. This act had made it a federal crime for public conveyances, hotels, restaurants, or amusement halls to refuse admission to anyone because of race, color, or previous condition of servitude, but the Court found that the Fourteenth Amendment stopped only government discrimination, not that of individuals or businesses. The Court’s outlook was even more damaging to civil rights when it confronted a case of governmental discrimination in Plessy v. Ferguson (1896). Homer Plessy, only one-eighth African American in descent, was classified as an African American and was denied the opportunity to ride in the segregated first-class sections of public transportation in Louisiana. He sued on grounds that segregation in public transportation denied him “equal protection of the laws” under the last clause in the first section of the Fourteenth Amendment. The Court ruled, however, that Plessy was provided “equal protection” as long as the state provided him with “equal” facilities, even if the facilities were separate. By this means, the doctrine of “separate but equal” came to be the binding interpretation of the equal protection clause. This seems even more curious (if not outrageous) in view of the Court’s contention in the Slaughterhouse cases that the Fourteenth Amendment solely protected the rights of Black people.

The end result of these cases was that the late nineteenth-century Supreme Court treated the Fourteenth Amendment as if it did not exist for ordinary citizens. If an individual was a White butcher in New Orleans, that person was not covered by the Fourteenth Amendment because the Court said that the “original intent” of those who proposed the amendment was merely to bring Black people to the level of White people. If an individual was a Black citizen, that person could claim no protection from the amendment if a state provided any kind of remotely comparable separated facilities, even if they were quite unequal in fact. From a current perspective, the Fourteenth Amendment seems not to have provided much protection for US citizens.

Applying the Equal Protection Clause

For nearly sixty years, the Court did not go very far toward reversing itself on civil rights, but it did chip away at Plessy around the edges. It had still not gone very far when Earl Warren was named chief justice in 1953, but his leadership made it possible for the Court to move toward protecting civil rights by applying the equal protection clause. The first decision in this direction was the famous Brown v. Board of Education (1954), which overturned the Plessy case by deciding that “separate but equal” was an impossibility because segregated schools were inherently unequal.

By overturning Plessy, the Court was announcing a new jurisprudence with revolutionary implications. Perceiving this, some legal scholars wrote searching challenges to Brown, but the Court won, not simply because it was the highest court in the land but because its interpretation of the Fourteenth Amendment rang truer to the original language than did the earlier view. In fact, segregated schools had not been equal to integrated schools, and the “separate but equal” doctrine had been used fundamentally to discriminate against African Americans by maintaining grossly unequal facilities.

State action was the principal focus toward which Brown was directed. Southern states had been taxing all of their citizens, Black and White, but had been using that tax money to benefit White people far more than Black people. Since Black citizens had no effective way to vote in most southern states, they had no political remedy against discrimination. The states’ abusive use of coercive power gave the Supreme Court its greatest moral justification for ending segregation in schools and other facilities.

The Supreme Court, the least powerful of American national institutions, must lead largely by persuading citizens that its decisions are correct. American courts do have sufficient legitimate strength so that the national and state executive branches will respond to court orders, and individuals who defy the courts will find themselves in great difficulty. In Brown, however, the Court was seeking not to influence an individual but to persuade large masses of people who had the force of the state on which to counterpoise their power against the courts. Many southern states responded to Brown by erecting legal and constitutional barriers against the Supreme Court decision, continuing to use their coercive power to deny Black people “equal protection.” At the same time, they failed to protect Black people from private racist groups such as the Ku Klux Klan.

Lacking support from the executive and legislative branches, the Court was unable on its own power to achieve the end of segregation. In the decade between the 1954 Brown decision and the passage of the Civil Rights Act of 1964, the courts decided case after case striking down discriminatory laws in southern states, a process that was so slow and tedious that only 1 percent of southern students were attending integrated schools by 1964. Only with the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 did all three branches of the national government begin to act in concert for equal protection. Only when these acts were enforced by a sympathetic administration in the 1960s did the country begin to make real progress toward eliminating the improper use of southern state governmental power.

The problem was enormous because it was a question of striking down not only a handful of specific laws giving preference to White people over Black people, but also a whole fabric of law that protected privileges acquired over years of discrimination. The US Constitution is designed to protect minorities that already have legal protections. Within the nation as a whole, White southerners became a minority who used the legal system to maintain their previous benefits. Although legislation should not be retroactive, the legal system should also benefit citizens equally, or the system’s legal legitimacy will erode.

The attempt to redress all the problems caused by segregation was yet more difficult because many discriminatory acts were in the domain of activities long regarded as private and beyond the legitimate scope of government activity. Given their past benefits, citizens could rely on the constitutional and legal structure to resist integration. The Supreme Court could strike down statutes and state constitutional provisions one after the other, but once it had rendered the legal system presumably neutral, schools would still be largely segregated because of private decisions made by citizens without any overt governmental support. This became especially clear in the pattern of segregation in northern schools, which proved to be based on residential housing patterns. When the Court could find deliberate decisions made by local authorities to bring about the segregation of schools, it could strike them down; it could do far less, however, when discrimination was not the result of deliberate governmental action.

The first step against housing segregation came in 1963, when California passed the Rumford Fair Housing Act. While the act was overturned by White voters shortly after, the event led to the Watts riots which subsequently caused the California Supreme Court to reinstate the Rumford Fair Housing Act in 1966. Several other states lobbied for fair housing over the next two years, until the Fair Housing Act was signed in 1968 as a part of the Civil Rights Act of 1968. The bill was one of the most filibustered pieces of legislation in history at that time. The Act expanded protection and prohibited discrimination during the sale, renting, or financing of housing based on race, religion, or sex, among other restrictions.

In 1991, the Civil Rights Act was amended to strengthen protections. Specifically, the Civil Rights Act of 1991 prohibited employment discrimination based on race, gender, color, religion, or ethnicity, and created support for providing damages in cases of intentional employment discrimination.

The notion of civil rights entails affirmative guarantees that the government will act to provide fairness for all individuals. Moreover, other groups besides African Americans have suffered discrimination in the past, including women, who were not granted equal protection of the laws in the late 1800s, despite their pressing claims at that time. While the Equal Rights Amendment—which would ensure women had the same legal protections as men—had still not passed in the early 2020s, the US passed other civil rights acts during the twenty-first century that targeted ending discrimination against women—as a result of the Women's Rights Movement—and those who were part of the LGBTQ community—as a result of the Gay Rights Movement. Furthermore, efforts continued to pass the Freedom to Vote Act, which sought to protect the act of voting from racial discrimination. The legislation was introduced in the Senate in September 2021, and narrowly missed being approved by the House the following year.

Bibliography

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Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. U of Oklahoma P, 1989.

Fiscus, Ronald J. The Constitutional Logic of Affirmative Action. Ed. Stephen L. Wasby. Duke UP, 1992.

Greenawalt, Kent. Discrimination and Reverse Discrimination. Knopf, 1983.

"History of Fair Housing." US Dept. of Housing and Urban Development, www.hud.gov/program‗offices/fair‗housing‗equal‗opp/aboutfheo/history. Accessed 9 Aug. 2021.

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Morris, Aldon. "From Civil Rights to Black Lives Matter." Scientific American, 3 Feb. 2021, www.scientificamerican.com/article/from-civil-rights-to-black-lives-matter1/. Accessed 9 Aug. 2021.

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