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Civil Rights Acts - THE ORIGINS OF CIVIL RIGHTS LEGISLATION, THE RECONSTRUCTION ERA, THE EMERGENCE OF JIM CROW

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A civil right is a guarantee by the government, generally in the form of a statute or constitutional provision, that a certain freedom (or freedoms) will be protected through the machinery of the judicial system. If a civil right is interfered with by another person or persons, legal action can be taken against the perpetrators. Some of the most well-known civil rights guarantees include the right to be free from involuntary servitude, the right to vote, and the right to be free from employment discrimination.

THE ORIGINS OF CIVIL RIGHTS LEGISLATION

In the United States, civil rights have their origins in the efforts of the U.S. Congress to free enslaved Africans and, later, to protect them from discrimination because of their previous condition of servitude. Generally, only blacks experienced chattel slavery. Thus, civil rights are associated with efforts by the federal government to protect blacks. Historically, such federal intervention was primarily directed against the overt actions of state officials acting “under color of law.” With less effectiveness, federal actions were also tested against nominally private individuals, such as members of the Ku Klux Klan, who took advantage of the postbellum inertia of state officials and threatened the rights of former slaves.

The modern trend has been to universalize notions of equality, and civil rights laws have been expanded in their scope of coverage. As a result, women, Hispanics, and the “differently abled” now have significant protection against discrimination. Civil rights protections also include protection from unreasonable search and seizure, freedom of speech, and other rights that protect all individuals. However, the focus here will be on the particular struggle to establish protections for minorities and people of color, for it is this history that forms the background for all civil rights enforcement.

The history of civil rights has included steps forward and backward over time, leading one author to describe it as “an unsteady march” to equality (Klinkner and Smith 1999). There are at least three important periods in the development of civil rights: the Reconstruction Period; the Period of Segregation, or “Jim Crow”; and the Modern Era, which has been referred to as “the Second Reconstruction.”

THE RECONSTRUCTION ERA

The original Constitution protected slavery through several circumlocutory clauses, including the fugitive slave clause, which prohibited northern states from interfering with the recapture of fugitives, and the infamous three-fifths clause, which implicitly recognized slavery and counted all slaves as three-fifths of a person for purposes of congressional apportionment. Under this original constitutional framework, the federal government was conceived as a great danger to liberty. Indeed, in this antebellum context, “liberty” included the right to own slaves as “property” or “chattel.” Thus, the first ten amendments to the Constitution limited the power of the federal government. This framework was associated with a notion of “state’s rights”—which could have been read as southern state’s rights. This meant that individual rights were protected only by the states, if they were protected at all. But the law was merely a rationalization of racial attitudes, and slavery rested ultimately on a “philosophy” of black inferiority. Immediately after the Civil War, the North, dominated by the Republican Party, sought to reintegrate the South back into the Union and address the needs of formerly enslaved African Americans. During this period, known as Reconstruction, Congress passed three constitutional amendments and five civil rights statutes to establish civil rights for the freedmen.

The Thirteenth Amendment, which abolished slavery, was ratified on December 18, 1865. It provides that “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.” Congress reserved the right to enforce the amendment through appropriate legislation. This assertion of the supremacy of the federal government over the states was a revolutionary concept at the time.

The new amendment did nothing to overcome traditional beliefs, however, and many southern states enacted laws known as “Black Codes.” As Jacobs Tenbroek has written, by virtue of these codes blacks were “socially outcast, industrially a serf, legally a separate and oppressed class” (Tenbroek 1952). Blacks were thus reduced to slavery in all but name. The Black Codes compelled Congress to pass further legislation, namely the Civil Rights Act of 1866. A precursor to the equal protection clause of the Fourteenth Amendment, the act granted citizenship to “all persons born or naturalized in the United States.” It thus reversed the Supreme Court decision in Dred Scott v. Sandford that held that blacks could not be citizens. It also provided that, among other things, blacks would have the same rights under the law as whites, including the right to sue and be sued, the right to make contracts, and the right to own property. It also made it a crime to deprive any person of his or her civil rights.

Associated with the Civil Rights Act of 1866 was the Anti-Peonage Act of 1867. This law “resulted from the practices found to prevail in the Territory of New Mexico and inherited from the days of Spanish rule” (Gressman 1952). But the law went beyond the specific evil that gave it birth and prohibited involuntary servitude anywhere in the United States. Taken together, the Civil Rights Act of 1866 and the Anti-Peonage Act prohibited forced labor through the institution of slavery as well as through more indirect methods.

When the Black Codes were outlawed by the Civil Rights Act of 1866, hostilities broke out, including a race riot that erupted in Memphis in May 1866. In the backlash that followed, both blacks and the whites that supported civil rights became “victims of terrorism in the South” (Flack 1908).

Yet during this period, opponents of equal rights for blacks avoided public rhetoric on racism. Instead, they based their criticism of the Civil Rights Act on claims of “state’s rights.” More specifically, the opponents of the bill argued that the Thirteenth Amendment merely abolished slavery and gave Congress no power to require what would later be called “equal protection of the laws.” Abolitionists, on the other hand, had long sought to make the federal government the primary protector of individual rights. In the southern view, this legislation was a radical device that wrote the abolitionist perspective into law.

Seeking to place both the issue of black equality and the central role of the federal government beyond the reach of succeeding Congresses, the reigning northern Republicans sought to make civil rights protections a permanent feature of the U.S. Constitution. Thus, the Fourteenth Amendment was born. Tracking the language of the earlier Civil Rights Act, the amendment declared:

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges and 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 law.

To solidify the supremacy of the federal government over the states in enforcing these civil rights, Section 5 of the Fourteenth Amendment explicitly gave Congress the power to enforce this legislation by appropriate additional legislation. The Fourteenth Amendment was ratified on July 28, 1868. Shortly thereafter, on February 2, 1870, Congress ratified the Fifteenth Amendment, guaranteeing that “the right of citizens of the United States to vote shall not be abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Then, on May 31, 1870, Congress reenacted the Civil Rights Act of 1866, which provided for criminal penalties for those violating the Fifteenth Amendment, using the newly minted Fourteenth Amendment as a source of congressional power. This was an attempt to silence those who criticized Congress for legislating equality under an amendment that merely prohibited slavery.

As late as 1871, the terrorism that blacks experienced had not subsided. It was clear that state officials in the South had the power to intervene, but they refused to act to protect the freed slaves. In response, Congress passed what came to be known as the Ku Klux Klan Act on April 20, 1871. Best known in the early twenty-first century is the portion of the statute (now codified as 42 U.S.C. 1983) that prohibited state officials from denying rights to blacks:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

At the time, however, the heart of the statute consisted of the sections that prohibited private parties from acting together to deny rights to blacks. Section 2 made it a crime for two or more persons to “conspire together, or go in disguise upon the public highway or upon premises of another for the purpose … of depriving any person or any class of persons of the equal protection of the laws.”

The high watermark of reconstruction legislation was the Civil Rights Act of 1875, enacted on March 1, 1875. Section 1 of the law required all inns, public conveyances, theaters, and other places of public amusement to open their accommodations and privileges to “all persons within the jurisdiction of the United States … regardless of any previous condition of servitude.” Section 2 made the violation of the law a criminal offense and gave the injured party a right to recover $500.00 in damages. The law was designed to make blacks full-fledged citizens, and to integrate them into the public life of the states in which they lived. Taken together, the civil rights legislation enacted during Reconstruction represented a constitutional revolution. But it was a revolution that was too swiftly abandoned.

THE EMERGENCE OF JIM CROW

Following the disputed presidential election of 1876, the Democratic supporters of Samuel J. Tilden and the Republican supporters of Rutherford B. Hayes reached an agreement that historians call the Hayes-Tilden Compromise. The “compromise” stipulated that Hayes would get the presidency, but that he would then have to name at least one southerner to his cabinet and remove the troops that had enforced the civil rights laws in the old Confederacy. Hayes thus strode upon the stage of American history as the nineteenth president of the United States, but, as agreed, he withdrew the federal troops from the South, thus bringing down the curtain on Reconstruction.

The force of civil rights legislation was further eroded by the U.S. Supreme Court. In what has been called a judicial coup d’etat , the Court held that many of the Reconstruction-era civil rights laws were unconstitutional. They affirmed the autonomy of the states and held again and again that the federal government overstepped its bounds by attempting to assert its authority to protect individual rights.

In the Slaughterhouse Cases of 1873, the Supreme Court held that national citizenship conferred few “privileges and immunities.” In 1875, the Supreme Court held in U.S. v. Cruikshank that the federal government had no jurisdiction over private individuals who deprived blacks of civil rights. Instead, the Court stated, “blacks should look to state officials for protection.” Of course, state officials in the South were the very people Congress had sought to protect blacks from. In the ironically named Civil Rights Cases of 1883, the Court went on to hold that Congress lacked the power to punish private individuals for denying blacks access to places of public accommodation. The Court held that without state action, no constitutional violation could occur under the Fourteenth Amendment.

Finally, in Plessy v. Ferguson (1896) the Supreme Court placed the imprimatur of constitutional approval on state-sponsored segregation. Here, the state of Louisiana had passed a law that required blacks and whites to sit in separate railroad cars. The Court upheld the law on the grounds that blacks had no right to social equality, but only political equality, under the Fourteenth Amendment. With Plessy , the Court ushered in the era of segregation. Once the Supreme Court had legitimized it, many states, including but not limited to most southern states, passed laws requiring or permitting segregation. A web of interlocking segregationist laws and customs sprang up, creating the regime of “Jim Crow.”

THE SECOND RECONSTRUCTION: THE MODERN ERA OF CIVIL RIGHTS

After seven decades of Jim Crow, the modern civil rights era began with sit-ins and boycotts in the 1950s. In the 1960s Congress passed a series of civil rights acts, including the Civil Rights Acts of 1960, 1964, and 1968.

The impetus for this legislation began as early as 1941 with House Resolution (H.R.) 3994, entitled, “A Bill to Prohibit Discrimination by Any Agency Supported in Whole or in Part with Funds Appropriated by the Congress of the United States.” The bill, introduced by Vito Marcantonio from New York, died unceremoniously in committee, as would hundreds like it. President Roosevelt, however, by executive order, prohibited discrimination by defense contractors and created the Fair Employment Practices Commission (FEPC).

Momentum began to build after the racially motivated beating, maiming or lynching of several black men following World War II. In response to the outcry that followed, President Truman set up the President’s Committee on Civil Rights, which issued a report, To Secure These Rights , in 1947 recommending additional civil rights legislation and a permanent Civil Rights Commission. Subsequently, in 1948, Truman issued an Executive Order calling for desegregation of the armed forces.

Antidiscrimination laws gained further momentum with the enactment, during the Eisenhower years, of the Civil Rights Act of 1957, which created the U.S. Commission on Civil Rights. The reports of this commission spotlighted the glaring inequalities faced by blacks. On May 6, 1960, Eisenhower signed into law the Civil Rights Act of 1960, which established federal inspections of local voter registration polls and introduced penalties for anyone who obstructed a person’s attempt to register to vote.

President John F. Kennedy continued the march forward. On March 6, 1961, President Kennedy signed into law an Executive Order establishing the President’s Committee on Equal Employment Opportunity and requiring all government contractors to pursue affirmative action policies in the hiring of minorities.

PRELUDE TO 1964

The stage was then set for the Civil Rights Act of 1964. First, H.R. 405 entitled “A Bill to Prohibit Discrimination in Employment in Certain Cases Because of Race, Religion, Color, National Origin, Ancestry or Age” was introduced on January 9, 1963. Setting the tone for the legislation to come, Kennedy, in his message to the 88th Congress in February 1963, advocated “the democratic principle that no man should be denied employment commensurate with his abilities because of his race or creed or ancestry.” Originally the bill focused on race, but it was amended by its opponents to include women. These individuals theorized that the possibility of women being given equal rights would doom the bill to failure.

After the longest debate in congressional history, an equal opportunity bill passed the house in February 1963. This launched a tremendous struggle in the Senate. In particular, Title VII of the act threatened to change longstanding baselines of employment law that held that the employer could hire or fire his employee for a good reason, a bad reason, or no reason at all. But more importantly, the bill threatened segregation as a way of life. Southern opponents appealed not to race, however, but to notions of private property. They argued that it was wrong to tell employers whom they had to hire, and that owners of businesses, such as barber shops, had a right to decide with which customers they would associate. Thus, both the ideals of liberty and anticommunism were deployed by the opponents of equal opportunity.

Despite this opposition, the Civil Rights Act of 1964 was signed into law on July 2, 1964. It prohibited discrimination on account of race, sex, color, religion, and national origin. The enforcement machinery was weak in the original formulation, however. Many entities were exempt, and the Equal Employment Opportunity Commission (EEOC), which was created by Title VII of the act, had a limited role in enforcing employment discrimination. Yet, in many respects, the Civil Rights Act of 1964 was the most important legislation of the twentieth century.

Major Amendments . Many members of Congress believed that the “failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII” of the Civil Rights Act of 1964. Therefore, the act was amended in 1972 to include local governments and educational institutions within its coverage and to give the EEOC litigation authority.

However, continuing the political tango of the first Reconstruction, the Supreme Court wrote decisions in the late 1980s that created particularly difficult burdens of proof for Title VII litigants. Perceiving this as a step backward, Congress enacted the Civil Rights Act of 1991, which “overruled” some the most onerous aspects of these decisions. In addition, it provided a right to a jury trial and the right of plaintiffs to not only recover back pay, but also to receive additional financial damages up to a certain ceiling.

Interpretating Title VII . Formally, the courts have interpreted Title VII of the Voting Rights Act to “proscribe not only overt discrimination but also practices that are fair in form, but discriminatory in operation” ( Griggs v. Duke Power 1971). Thus, as a broad rule, not only is intentional discrimination prohibited, but so is any action that disproportionately excludes minorities in employment. However, the court has limited this theory by creating strict “intent” requirements. For example, an employer can build a factory in Harlem, a predominantly black area, but can then locate his employment office in Beverly Hills. The result may be a factory in Harlem with no black employees. Minorities would have little recourse in such a situation, unless they could prove this was done with an intent to discriminate.

VOTING RIGHTS

The most basic right in a democracy is the right to vote. The Civil Rights Act of 1964 led directly to the Voting Rights Act of 1965, which prohibits any “voting qualification … which results in a denial …of the right … to vote on account of race or color.” Enacted pursuant to the Fifteenth Amendment, it has been described as “the most successful piece of federal civil rights legislation ever enacted” (Days 1992).

The Voting Rights Act has two principal provisions. Section 2 forbids the imposition or application of any “voting qualification or prerequisite to voting, or standard, practice, or procedure … which results in a denial or abridgement of the right of an citizen of the United States to vote on account of race or color.” Section 5 requires federal approval of changes in voting procedures in areas with a history of discrimination. Yet despite this legislation, many blacks feel that they still face discriminatory barriers in the voting process.

FAIR HOUSING LEGISLATION

Modern housing segregation dates back to the Great Migration in the early twentieth century. Between 1910 and 1920, approximately 300,000 African Americans migrated from the South to the North. This number increased to 1.3 million between 1920 and 1930; to 1.5 million between 1930 and 1940; and to 2.5 million between 1930 and 1950 (see Bennett 1982). As blacks moved to northern cities from the largely rural South, they confronted both legal and illegal means to restrict their residential choices. These included racial zoning ordinances, racially restrictive covenants, organized realtor practices, and racial violence. The effect of these practices was to create stark patterns of segregation, which still continue in the twenty-first century.

Fair housing laws began as an executive order passed by President Kennedy in 1962. Ignited by Kennedy’s leadership and a burgeoning civil rights movement, a substantial movement toward fair housing began. While there was strong resistance, the assassination of Martin Luther King Jr. and the riots that followed served as a catalyst for new legislation. The Fair Housing Act became law on April 11, 1968.

The new law did three things: It prohibited most owners and renters from engaging in discriminatory practices involving their property, it prohibited institutional actors such as banks and real-estate brokers from discriminating, and it called upon the federal government to promote fair housing and establish enforcement mechanisms. In its original form the act prohibited discrimination on the basis of race, sex, national origin, and religion.

The Fair Housing Act was amended in 1988, when its coverage was extended to two statuses that had not been included in the original Act: handicapped status and familial status. The revised act also gave the Department of Housing and Urban Development (HUD) greater power to investigate and enforce complaints of housing discrimination, while giving administrative judges the power to impose fines on violators.

THE IMPACT OF CIVIL RIGHTS LEGISLATION

Since the passage of Title VII and other legislation, all Americans are heirs to a legacy of equal opportunity and equal justice under law. However, whereas the legal structure in place provides some semblance of formal equality in the early twenty-first century, significant obstacles remain in society that continue to limit the availability of civil rights to all. First, discrimination and prejudice continue to operate against disfavored and disadvantaged groups. Secondly, although one may be a victim of discrimination, access to the resources and evidence to prove it in court, or an administrative hearing, may be another matter.

Finally, the objective value of civil rights has been questioned in the absence of economic and social equality. While the law is explicitly on the side of equal justice, a gulf remains. In the early twenty-first century, minorities are still the victims of racial profiling. Minorities are legally protected from discrimination, but there is still debate about the contours of that concept.

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