Civil Rights

Civil Rights. The concept of civil rights has changed dramatically since it first became a central idea in political discussions in the nineteenth century. Initially referring to a limited class of rights to which all people were entitled, the term has come to refer to a general guarantee against differential treatment in all areas of social life on the basis of what society deems to be an arbitrary grounds.

The Revolutionary War and Antebellum Eras.

The idea of natural rights played an important role in the Revolutionary War Era. Natural rights were those rights people enjoyed in a state of nature, independent of any organized society: the right to life and liberty and the right to attempt to procure property. Civil rights were the rights people possessed once they organized a society. The idea of civil rights came into its own during the abolitionist campaign against slavery. For abolitionists, one fatal characteristic of slavery was that slaves were denied civil rights. They could not own property, enter into contracts, or testify in court. These and a few other rights were what abolitionists understood to be civil rights. Typically the justification was that these rights distinguished organized—civil—society from the state of nature: People organized society so that they could have stable property holdings and secure contractual agreements, and a person's property and contracts could not be protected unless the person could testify about them.

Through the mid–nineteenth century, political activists and theorists sharply distinguished between civil rights, on the one hand, and political and social rights, on the other. Civil rights were associated with all organized societies, whereas political rights were rooted in the particular arrangements of specific societies. Abolitionists believed that freed slaves had a right to own property, but they did not think that emancipation automatically entailed the right to vote or to serve on juries. They could imagine societies in which voting played a small role and in which juries played no role at all; it followed, they believed, that the rights to vote and to serve on juries were political rather than civil rights. The point was perhaps clearest in connection with women, who generally had the right to own property and make contracts, but the view that women had the right to vote was far from the mainstream in the mid–nineteenth century.

The Reconstruction Era through the 1930s.

Congress's first venture into the area of protecting civil rights came with the Civil Rights Act of 1866, passed to enforce the Thirteenth Amendment's abolition of slavery. The act granted all citizens equal rights to sue and testify; enter into contracts; and purchase, sell, or inherit property. The act was adopted over President Andrew Johnson's veto, in which he expressed concern that the Thirteenth Amendment did not give Congress the power to enact it. In part because of that concern, Congress proceeded to propose, and the states to ratify, the Fourteenth Amendment, which guaranteed “equal protection of the laws.” To the extent that the Fourteenth Amendment was designed to place the 1866 Civil Rights Act on a secure constitutional footing, it protected core civil rights but did not deal with political rights such as the right to vote. The importance of the distinction was driven home by the perceived need to adopt the Fifteenth Amendment, securing the right to vote against efforts to restrict it on the basis of race.

The distinction between civil rights and political rights came under increasing pressure toward the end of the century. The Supreme Court held that the Fourteenth Amendment barred states from denying African Americans the opportunity to serve on juries (Strauder v. West Virginia, 1880). An amendment designed primarily to protect civil rights was thus interpreted to protect one of the central political rights. The increasing activism of woman‐suffrage advocates further strained the distinction between civil and political rights.

In contrast, the distinction between civil rights and social rights survived. In a sense, the category of social rights was simply residual: Everything not encompassed within civil or political rights implicated social rights. In part, the category identified the ways in which politically organized societies arranged their nonpolitical institutions. The Supreme Court in Plessy v. Ferguson (1896), upholding a state statute mandating racial segregation on privately owned railroads, asserted that the statute's challengers were claiming that they had a right to associate with whomever they chose. But that claim was mistaken, the Court's holding implied, because the right to associate was a social right, subject to regulation by ordinary legislative decision‐making.

Advocates for African Americans continued to press the claim that racial segregation and discrimination denied their civil rights. The core of their claim was that civil rights were denied whenever race discrimination affected any activity that society deemed fundamental, including education and employment. The National Association for the Advancement of Colored People (NAACP), organized in 1909, proved particularly effective in promulgating this broadened notion of civil rights, through political advocacy and support of legal challenges to segregation.

By the 1930s, the older distinctions among civil, political, and social rights had largely been obliterated. For the next decades, civil rights activists struggled to obtain legal protection for civil rights as they had come to be understood. Challenges to state‐mandated segregation culminated in Brown v. Board of Education (1954), which repudiated the idea that education was not a civil right. During World War II, the national government created a Fair Employment Practice Committee, which attempted, without much success, to ensure that defense contractors refrained from discriminating in employment on the basis of race. Civil rights statutes enacted in 1957 and 1960 made modest efforts to overcome race discrimination in voting practices in the South.

The Era of the Civil Rights Movement and Beyond.

The full transformation of the idea of civil rights occurred in the 1960s. Civil rights acts adopted in 1964 and 1965 banned race discrimination in employment and in public accommodations such as restaurants and hotels and responded to persistent discrimination in voting by displacing the authority of southern states to adopt voter‐qualification standards. The effects of these two statutes were dramatic. Voter registration in the South expanded, and African Americans became important participants in politics there. Gains in employment were achieved more slowly, as employers resisted hiring and especially promoting workers they believed to be unqualified.

Beyond the 1960s, the idea of civil rights underwent further development. It expanded past the realm of race discrimination to include a significant number of other “protected” classes. Since the early twentieth century, some women's rights activists had pressed for a ban on gender‐based discrimination in employment. That proposal met with resistance from organized labor and from some other women's rights activists, who thought it important to ensure the survival of state laws that they believed protected women against exploitative employment practices. In part to divide the liberal coalition supporting the proposed Civil Rights Act of 1964, the Virginia representative Howard Smith introduced an amendment that would expand the coverage of the proposal's ban on employment discrimination to include discrimination based on gender. This portion of the 1964 act became one of the most important vehicles for gender equality over the following decade. Similar expansions of the notion of civil rights occurred as older Americans obtained protection in the Age Discrimination in Employment Act (1967), and the physically handicapped established their right to accommodation of their disabilities through the Americans with Disabilities Act (1990) and other statutes. The list of protected classes continued to increase as gays and lesbians sought protection against discrimination in employment and housing.

By the late twentieth century, the expanded notion of civil rights had begun to develop new elaborations. From the early years of the civil rights movement, activists had divided over whether they sought treatment for African Americans as individuals or as members of a distinctive social group. In employment, this produced strategic divisions over whether to seek a legal regime of nondiscrimination or one of proportional hiring. The strategic disagreements mattered little until the civil rights movement began to succeed. After the adoption of the 1964 and 1965 Civil Rights Acts, however, the differences became important. Proponents of affirmative action and race‐conscious apportionment of election districts contended that their approaches were the best way to ensure that African Americans would obtain fair treatment and the resources to which they were entitled, and that they were effective ways of securing a stable, self‐determining African American community. Their opponents argued that race‐conscious approaches undermined the focus on individual rights that had been the hallmark of previous struggles for civil rights.

The expansion of the concept of civil rights generated concern among some observers. Critics suggested that the discourse of civil rights produced an escalation of rhetoric that made it increasingly difficult to reach accommodations among competing interests. Others expressed concern that the concept had come to cover such a wide range of social life that its moral force had become diluted. These concerns, plus persistent conflicts over affirmative action and continued efforts to claim civil rights by groups that believed themselves to be disadvantaged, ensured that the concept of civil rights would continue to evolve as a new century began.
See also Antislavery; Civil Rights Cases; Civil Rights Legislation; Constitution; Gay and Lesbian Rights Movement; Republicanism; Woman Suffrage Movement; Women's Rights Movements.

Bibliography

Hugh Davis Graham , The Civil Rights Era: Origins and Development of National Policy, 1960–1972, 1990.
Richard Kluger , Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality, 1976.
Daniel T. Rodgers , Contested Truths: Keywords in American Politics since Independence, 1987.
Mary Ann Glendon , Rights Talk: The Impoverishment of Political Discourse, 1991.
Andrew Kull , The Color‐Blind Constitution, 1992.

Mark Tushnet