American Civil Liberties Union Briefing Paper Number 11
| "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
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
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.
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
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
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
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
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
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
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
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
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.
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
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
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
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