U. S. Commission on Civil Rights
Chairman
Allen points specifically to the 1964 Civil Rights Act which was meant to
guarantee nonpreferential and color-blind treatment, but which has been used to
guarantee the opposite. He proposes a
return to the ideas of equal citizenship for all, “without a special bracketing
called ‘civil rights.’”
§§§§§
Clarence Pendleton was of course a dear friend
to all of us, and his sudden passing is perhaps itself a significant civil
rights revolution in this United States. He had accomplished what virtually no
one expected at the time of his appointment by President I Reagan in 1982. That
is to say, Chairman Pendleton brought the question of civil rights to the
forefront of the minds of the people of the United States. He ignited a debate,
and launched a dialogue which made the entire question of affirmative action,
the question of minority business set-asides, the question of comparable worth,
and so many of the other disputed points of the civil rights agenda questions
of immediate interest to us.
“Penny,” as he was known, made clear once and
for all that these matters have to be resolved, not in the cloakrooms on
Capitol Hill, not in the privileged suites of civil rights organizations, but
in communities throughout America. They raise issues which will continue to
concern all of us until the day when, happily, there will no longer be need for
a civil rights movement.
Does it seem odd that I look forward to a day
when we might no longer express anxiety about civil rights? Understand, then,
that I mean nothing inhumane or unfriendly by that statement. The existence of
a civil rights movement presupposes a serious deficiency in our political life.
The hallmark of American citizenship ought to be equal rights of citizenship,
without a special bracketing called “civil rights.” We should all carry out the
activities of citizenship without regard to special efforts to guarantee those
same activities either to particular groups of citizens or indeed to the
country in general.
Black progress in America
The title of this
talk is “the civil rights revolution.” In that sense it invokes changes fairly
wrenching in the common life we live—changes experienced not only in the past
generation but indeed since the beginning of this century. I select the
beginning of this century (rather than since the War of American Union) for the
simple reason that a transformation took place in the aftermath of the 1896 Plessy v. Ferguson decision. That decision created the
peculiar problem of civil rights, which is to be distinguished from the general
problem of guaranteeing the equal protection of the laws, in the language of
the 14th Amendment, and which was of course the objective in the
immediate aftermath of the War.
Following the War and Emancipation there was a
fairly vigorous effort in this country to realize the promises of the
Declaration of Independence as those promises were restated through the 14th
Amendment. Many things occurred about
which Americans were justifiably proud and particularly in the lives of the
ex-slaves. There was a spontaneous
flowering of entrepreneurial activity and indigenous development of educational
mechanisms—schools, teachers, and even the onset of university education to a
significant degree. Communities had formed
structured expectations built upon recognized moral practices and certainly
congruent with the hopes and ambitions encouraged thereby.
By the beginning of the 20th century
it seemed sure that the ex-slaves would succeed rapidly, mounting the ladder
which had therefore been characteristic of immigrants to the country. The scene then changed abruptly. Things changed not because of Plessy v.
Ferguson but concurrently with that decision. Justice Brown announced the decision of the majority, and spoke
of a sociological attitude, a prevailing environment that fostered
separation. He did so quite accurately,
for what had happened toward the end of the last century was that deliberate
efforts had been undertaken to obstruct the manifest progress of the ex-slaves.
Such efforts aimed not merely to end their
entrepreneurialism, even among themselves, but to stop in its tracks all
evidence of progress. Nowhere was this
more manifest—and perhaps more deliberate—than in the realm of education. An additional factor deepened the harm
dramatically, for at this time was introduced the first broad commitment to
public education in the United States. Many historians have noted how well the
United States functioned prior to this time, without a broad commitment to
compulsory public education and with education being primarily a matter of
choice. I do not mean to deny the evidence of serious, early 19th
century efforts to elaborate a public school ideology—conspicuous in places
such as Boston, Philadelphia, and Cincinnati. Nevertheless, by the start of the
present century there was still not in place a broad, general commitment to
compulsory public education, placing everything under the control and power of
the state.
Jim
Crow & the Civil Rights Dilemma
Everything changed at the start of this century,
concurrently with the new emphasis on diminishing the opportunities of
ex-slaves and their offspring. Thus, a specific result of placing the total
control of education in the hands of the states concurrently with the separate
but equal doctrine was to augment difficulties for them that then lived
primarily in the South. They began to move North, but it became no easier to
mount the ladder of success in the context of the American tradition.
This background shapes for us the civil rights
problem and shows why, in fact, it became a civil rights problem leading to a
revolution. It is not the legacy of slavery (a mistake which is all too often
repeated) that creates the civil rights problem. The legacy of “Jim Crow”
consciously adopted created the civil rights problem. Some would allege that
such policies were adopted because former slaveholders desired to maintain a de
facto slavery. Whether this
were the case or not, we ought to direct our attention instead to the devices
they had to resort to in order to impose “Jim Crow.” For in selecting their
means they did more than merely to degrade ex-slaves; they began the process
that most gravely imperiled traditional republican practices in the United
States.
First and foremost, reliance upon the agency of
the state was necessary. “Jim Crow” meant interfering with the right of
contract—the freedom to make and enforce contracts through legal processes.
Secondly, it meant establishing arbitrary state power to determine the
educational future of young people—a power so strong it obstructed private as
well as public schools (not merely with respect to American blacks but with
respect to Americans generally; the openness for private education was not
solidly re-established in law by the Supreme Court until 1922 in Meyers v. Nebraska and, subsequently, Pierce v.
Society of Sisters in
1925).
“Jim Crow” acquired a
patina of legitimacy, even respectability, through its
dependence on the state. Woodrow Wilson made “Jim Crow” national policy, not
just a regional aberration, rigidly segregating the civil services and the
capitol itself.
Despite this, American blacks managed to get
some kind of education, and earn some kind of living. They found ways to build
families and lives for themselves. A Commission on Civil Rights study revealed
that the income gap between white and black males from 1940 to 1960 narrowed
significantly, due in part to World War II but also in the period afterwards.
What is important in this is not that “Jim Crow” is to be regarded as a trivial
injury. It is not. Nevertheless, under the “Jim Crow” regime and when the
pressures were at their worst, people still found a way to make progress, to
carve islands of security, to carve out that sense of personal worth and
dignity which guaranteed that there would still continue to operate in this
country the highest notion of the American ideals—the principles of the
Declaration of Independence.
Things changed after 1960. They changed in ways
which are still scarcely comprehensible, because they seemed to change all at
once. In 1964 petty apartheid was swept from American life with the stroke of a
pen. I was driving from California to Florida in that summer of ‘64, just after
the Civil Rights Act was passed. Then, for the first time in my life, I was
able to contemplate stopping at any restaurant or motel I came across.
Some people dismiss the notion that removing
signs of petty apartheid is of any significance, but, believe me, it is
extremely significant for anyone who has ever had to live with the indignity of
searching all over town for a restaurant or motel that has the “colored” sign
above it. Were the other deep injustices of “Jim Crow” removed? That’s another
question.
When we talk about
the “civil rights revolution,” we usually speak in terms of a series of
legislative acts beginning in 1964 and continuing through the Voting Rights Act
of 1965, the Fair Housing Act of 1968, and so on, right up until today, with
the so-called Civil Rights Restoration Act of 1988. In fact, we seem to pass
some piece of civil rights-related legislation every year—to many people that is
the civil rights revolution!
While this revolution
indeed changed the face of America by wiping out petty apartheid, in other
respects it seems to have had no effect whatever (and sometimes even negative
effect). Obviously, more and more blacks can be seen on television, in
corporate boardrooms, in once all-white neighborhoods. Without minimizing these
genuine and important strides towards equality, I suggest that we have actually
regressed to the mentality of “Jim Crow” once again, and as a direct result of
the “civil rights revolution.” Today we stand as near the psychology and
sociology which prevailed at the period of “Jim Crow” as we have ever stood
since it was first installed.
Segregation in the Democratic Party
Look at the most
recent presidential race in which the campaign of Jesse Jackson played a major
role. Jackson’s campaign isolated American blacks within the Democratic Party.
The press talked constantly about the significance of a black candidate,
but it completely missed the consequence of this racial politics. For years we
have taken it for granted that blacks were isolated to the Democratic Party,
but not within it; as long as we thought blacks were predominantly Democrats,
and the Democrats were the majority party, there was always the assumption that
blacks were diversely spread among a majority of Americans having diverse
opinions and backgrounds and therefore not isolated within the
Democratic Party.
Well, this year we know that is not true. We
know that within the Democratic Party American blacks are completely
segregated. How do we know? The Democrats were offered a vast array of
presidential candidates to choose among—candidates reflecting all kinds of
opinions and visions of what America ought to be. Yet, black Democrats voted at
a rate of more than ninety percent, that is to say, almost exclusively, for the
black candidate. Their vote was not responsive to the ideological diversity
within the party. Within the Democratic Party, it is presently impossible to
appeal to black party members except in terms of race. Psychologically,
socially, and politically we are standing at precisely the same point where we
stood when the “Jim Crow” regime was first installed.
Why has this fate befallen the United States,
despite the fondest hopes of its people, and what can be done about it, if
anything? We did not go wrong with the first legal victory of the civil rights
revolution: the 1964 Civil Rights Act is an exquisite expression of the principle of equality and its
prerequisites—fairness, nonexclusivity, nonpreferential treatment, and
color-blindness.
Yet, in the
implementation of this law, our country turned its back on the very language of
the law itself. We began to make excuses for preferential treatment, for
race-sensitive rather than color-blind action. Our colleges and universities
now demand to know every potential student’s and teacher’s race before deciding
if there is a place for him. And the University of California at Berkeley
proudly announces to the candidate it deigns to accept, “You are an affirmative
action admit!” Our newspapers and television broadcasts cannot mention a black
individual without also mentioning his race, as if it lent special significance
to the story.
Regional race-consciousness
has been displaced by a national preoccupation with race. Its defenders purport
to employ race benevolently, but, then, there was a “positive good” school of
slavery also. Our new era of race consciousness makes the whole concept of equal
rights of citizenship more elusive than ever before.
The Equal Rights of Citizenship
Our duty is to
propose a solution to our difficulties. But let us begin by acknowledging that
there remain civil rights problems. They are no longer the problems of this or
that group of people. They are now rather the problem of what the legitimate
powers of state are with respect to any particular people. In order to
guarantee fair access to the advantages of our society certain minimal things
are required. We must, for example, enforce the freedom of contract. What that
means is that, any time two parties willing to make a contract can agree to do
so, we must prevent either public or private interference in those contracts on
the basis of race, ethnicity, religion, etc. And we need laws with teeth in
them to enforce that right.
What are laws with teeth in them? They are not
laws that multiply the teeth of bureaucrats, but rather laws which provide
opportunities for victims to vindicate their own claims. In the past quarter of
a century we have depended instead on bureaucrats, on watchdog regulatory
agencies, and on administrative procedures. What a mess it has become! Who can
say what the right remedy is in school integration cases, given our history?
The fact is, no one can state clearly what it is the citizen has a right to in
school cases. Has one a right to attend a school in which the other pupils look
different than he? Need the numbers be perfectly balanced? Has one a right to
attend, or even not to attend, any certain school? Do Americans enjoy the right
to choose a school?
No one can answer these questions with any
degree of confidence today, because the entire area has been reduced to chaos
by the litigation, legislation, and regulation of the past twenty-five years.
More broadly than that, however, I submit no one knows what our civil rights are! No lawyer, no
civil rights activist, no congressman, can tell us. There exist today nearly
150 separate statutes and amendments dealing with such rights, and sometimes in
mutually exclusive manners. The number of agency regulations is far greater. At
least thirty- seven federal agencies are concerned exclusively with civil
rights, while many others have functions related to it. Add to that all the
state laws, regulations and agencies, created piecemeal and without any
coordination, and you can divine the cause of the chaos.
I have not even
mentioned all of the Supreme Court decisions on civil rights. Here is a
question: “Do you have a right to enter into a contract with anyone you choose,
even if they refuse?” How would you answer? Of course, you would say no. But in
Runyon v. McCrary the 1866 Civil Rights Acts was
interpreted to mean that people can in fact impose contracts on unwilling
partners. In this particular case, a private school was forced to accept
students it preferred to turn down, which may or may not have been unfair, but
which certainly should not undermine the right of contract.
The Court went wrong here because of a wrong
turn taken in our nation. We began this process immediately after passage of
the 1964 Civil Rights Act, under the influence of the view that this society
owed it to the descendants of its slaves to take an active, positive hand in
shaping their places in life. The theory was that there was a designated place
for American blacks, and that that place could be attained only if there were
sufficient governmental exertion, sufficient affirmative action (to use the
language generically and not just in terms of a particular program).
Rather than entrusting American blacks to carve
out their own destinies, to chart their own courses, and to vindicate their own
rights, we decided to lodge matters in “superior” hands. We reinvented slavery.
And older form had been declared unconstitutional, so a new one was substituted
in its place. To prefer slavery to self-reliance, it was necessary to blind
ourselves to the best established traditions of Anglo-American jurisprudence.
In 1866 the first civil rights laws depended on those traditions, and preferred
tortious litigation to bureaucratic regulation. Since that time, however, we
have consistently treated tortious litigation as contra-indicated in
discrimination cases. It would seem more than coincidence that such an approach
would leave people’s fates in their own hands, while our preferred approaches
do the opposite.
Because of the wrong choice made in remedies to
civil rights problems, we are threatened today by renewed imposition of “Jim
Crow,” and one which will completely destroy the United States Constitution in
the process. I think, therefore, that it’s high time we re-examined the methods
employed to reach our goals. We must look with a comprehensive eye upon the
entire edifice of civil rights legislation and regulation, replace it with a
single, non self-contradictory code, and bring a new luster to those methods or
remedies which serve both to vindicate individual claims and to bolster our
common traditions. The civil rights
revolution will have become a revolution to destroy our rights, unless we alter
its direction and secure a salutary and permanent focus in our rights—the equal
rights of citizenship.