What is the History of Civil Rights Legislation in the United States?

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A newspaper announces the passage of the Civil Rights Act of 1866

Though much of the discourse around civil rights is rightly linked to the 1960s, the history of civil rights has a much longer and complicated history. The legislative history of civil rights reveals the ways in which citizenship was broadened to not only include peoples who were of African descent, but also all who would be identified as citizens. Civil rights legislation, in other words, was grounded in the desire of fairness, justice, and equity. But it was not a straight road.

After the Civil War

The conclusion to the Civil War in 1865 led to conditions that transformed over four million people into citizens. Before the passage of the 14th amendment these formerly enslaved persons lacked a political definition. If they were not enslaved, what were they? And if they were citizens, were they equal? In order to resolve this question, the country needed new laws. Because of the complicated question of proportional representation, things became thorny.

The paradox was that making peoples of African descent citizens meant increasing the representation of the former Confederate states from three-fifths of every Black person to five-fifths. If that declaration of citizenship came without voting rights for the newly emancipated Blacks it would be subjecting the country to the same predicament that it had before the war: a dictatorship of whites over Blacks. But the opposite was also true. The South, it was thought, would never agree to being readmitted on the basis of Black citizenship and Voting Rights.

In the immediate aftermath of the war, it must be remembered, the South had instituted the Black Codes. These were laws that simply stripped newly emancipated Blacks of the privileges of merely living their lives. Passed in each former Confederate state, these laws generally varied but most of them prohibited Black people from participating in markets of all kinds, including the labor market on their own terms; they sought to control Black people’s movement, outlawing loitering and vagrancy; they instituted forms of unequal civic identities, for instance prohibiting Black people from testifying against whites, but not the reverse; and they developed draconian penalties for violating such codes which included imprisonment.

Radical Republicans were then faced with the double problem of restoring these states to the Union while stopping the bleeding of the Black Codes that continued the war by other means, an approach, W.E.B. Du Bois once described as “Looking Backward.”[1] The complex battles that then ensued to address these issues centered on the Fourteenth Amendment, The Freedmen’s Bureau, the eventual Reconstruction Bill, and the question of civil rights.

The Civil Rights Act of 1866

Civil Rights might be quickly defined as those rights which define and support what it means to be a citizen. In the United States, the rights of citizenship include but are not limited to the ability to be afforded the opportunity to make and benefit from one’s own work in an open market and to be protected from harm in these capacities. Thus civil rights include the ability to make contracts, be free from restrictions of movement, and to participate in the decision-making bodies that enforce laws that everyone agrees upon. These “liberal” rights were thought to be grounding of the unique idea of America. After the Civil War, the question became would those same rights be afforded to peoples of African descent—it would come to be a large question and is the reason that the term “civil rights” is so often and consistently associated with the Black freedom struggle. In answering that question, the Black Codes signaled a resounding “no.”

As a response Congress, led by the Radical Republicans, who were in turn led by the Massachusetts Senator Charles Sumner and the Pennsylvanian Congressman Thaddeus Stevens helped devise the Civil Rights Act of 1866, which was first introduced by the Illinois Senator Henry Lyman Turnbull. Along with the Freedmen’s Bureau Bill, this law sought to directly staunch the issues arising out of the state of the affairs created by the Black Codes. The law read,

“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make their rights and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”[2]

It was necessary to establish both that Black people’s status as citizens and to affirm their fundamental equality as liberal subjects in the United States of America. This law remains critically important in understanding how American notions of equity and justice were first applied to those were themselves formerly property.

The Civil Rights Act of 1875

Reconstruction being what it was—an often violent affair, especially with regard to Black people asserting their rights—the Federal Government had to again step in to affirm Black people in their rights as citizens. While the 1866 act defined what that meant, the 1875 law, sought to enforce that definition, by ensuring that they would be afforded the protections of enjoying their citizenship. This law is often called the Force act, and it read,

“all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”[3]

In the 1875 act, we see the initial assaults against the coming segregationist policies of Jim Crow. There was a fundamental belief that in order to enjoy the privileges of liberal citizenship, one had to be able to access the public commons as well as those accommodations that are available to all citizens. After the passage of this law, that belief changed, leading to a series of legislative and Supreme Court defeats that struck at the core of the spirit of the civil rights legislation of the Reconstruction years. The 1883 set of cases, known as the Civil Rights Cases effectively dismantled the Civil Rights Act of 1875, and over time certain interpretations of the Fourteenth Amendment came to include “corporate citizenship.” The net result of all of this was that the period that historian Rayford Logan calls, “the nadir” was now afoot—it was a period where the protections of civil rights were denied and Jim Crow reigned supreme, and legally so with the passage of Plessy v. Ferguson in 1896.[4]

The Civil Rights Act of 1957 and 1960

George E.C. Hayes, Thurgood Marshall, and James Nabrit, attorneys for plaintiff in Brown V. Board of Education celebrate a victory, May 17, 1954

The resistance to Jim Crow reached a fever pitch by the 1950s. The context for that shift is important to understand. Legal scholar, Derrick Bell, is perhaps prescient when he argues that it was “interest convergence.” That is to say, it there was an alternative benefit that accrued to the United States that motivated attempts to protect the civil rights of African Americans. For Bell, it was the ongoing conflict with the Soviet Union, which had utilized Jim Crow in its propaganda wars with the United States.

As a result, by the late 1940s, federal laws began to shift, a Civil Rights Commission was formed in 1947, and the Supreme Court formally abolished Jim Crow in 1954, with Brown v. Board of Education. But there was still more to be done, particularly with the question of enforcement as Brown II mandated segregation but with “all deliberate speed.” In 1957, a minor law was passed to create a civil rights division in the Department of Justice and nominally protect Black voting rights. It became the first Civil Rights Act since the Reconstruction period. And in 1960, these protections were strengthened with the Civil Rights Act of 1960.

The Civil Rights Act of 1964

President Lyndon B. Johnson and Martin Luther King, Jr. after singing of Civil Rights Act of 1964, July 2, 1964

In the ensuing years the Black freedom struggle intensified. The sit-in movements began in 1960, drawing attention to the fact that although illegal, many public accommodations were still segregated. A movement that utilized nonviolent direct action was pioneered by organizations like the Student Nonviolent Coordinating Committee (SNCC), a group of young activists that engaged Jim Crow face-to-face. Martin Luther King’s Southern Christian Leadership Conference (SCLC), which formed in the wake of the 1956 Montgomery Bus Boycott, led campaigns in cities where particularly egregious cases of segregation held sway. Birmingham was one such place, and Project C was the name given to the campaign to attack segregation in that city. This time the cameras were there.

It is here where see the dogs and hoses turned on the children. It is here where we see the violence that shocked a nation that had so long turned its back. It is where many made the ultimate sacrifice, including on September 16th, 1963, when six Black children were killed—four girls in a church, and two boys in the ensuing violence. Weeks before, King had given his famous, “I Have a Dream Speech” which pricked the nation at its heart. If Black people had no civil rights, all that made America what it thought it was, was all a lie.

Then came the assassination of John F. Kennedy. In the wake of that moment, President Lyndon B. Johnson vowed that the civil rights bill that Kennedy had been working on with leaders of the movement like King, must finally come to pass. That law, the Civil Rights Act of 1964 was passed on July 2, 1864, and aggressively outlawed discrimination based on race, color, religion, sex, or national origin in employment and public accommodations. It was the most important of all the twenty-first century civil rights laws, by far. For it also included strong enforcement procedures for violations.[5] For these reasons, it has rightly been lauded as landmark legislation, though many also erroneously view it as the “end” of the civil rights movement.

Conclusion

In fact, there were other civil rights laws, including the 1968 Civil Rights Act and the 1991 Act, which outlawed housing discrimination and strengthened the employment protections of the Civil Rights Act of 1964, respectively. All of these legislative victories are the legacy of those who established the principles of civil rights protections after the Civil War and the continued struggle to oppose resistances to that foundational moment like Jim Crow. As such, this legislative history remains relevant today.

Bibliography

Derrick A. Bell, “Brown v. Board of Education and the Interest Convergence Dilemma,” Harvard Law Review 93 (January 1980): 518-33.

W.E.B. Du Bois, Black Reconstruction in America, 1860-1880 (New York: Free Press, 2000).

Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Equality (New York: Oxford University Press, 2006).

Rayford Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (New York: Da Capo Press, 1997).

Clay Risen, Bill of the Century: The Epic Battle for the Civil Rights Act (New York: Bloomsbury Press, 2015).

References

  1. W.E.B. Du Bois, Black Reconstruction in America, 1860-1880 (New York: Free Press, 2000), 128-81.
  2. See text of “An Act to Protect all Persons in the United States in their Civil rights, and furnish the Means of their Vindication,” https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch31.pdf.
  3. See text of “An Act to Protect all citizens in their civil and legal rights” https://www.loc.gov/law/help/statutes-at-large/43rd-congress/session-2/c43s2ch114.pdf.
  4. Rayford Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (New York: Da Capo Press, 1997).
  5. See Civil Rights Act of 1964,https://www.ourdocuments.gov/doc.php?flash=false&doc=97&page=pdf
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