Federal Protection of Civil Rights

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Although the story of federal protection of civil rights is most conveniently told chronologically, two themes warrant separate mention. First, federal protection of civil rights has a paradoxical relationship with states ' rights. All civil rights legislation has been opposed or limited in response to the argument that the federal government ought not involve itself in areas of state responsibility. The Supreme Court repeatedly has voiced this concern and, in the past, invalidated civil rights legislation partly on this ground. Deference to state law enforcement prerogatives always has been a centerpiece of Justice Department civil rights enforcement policy. And for many years Congress repeatedly rebuffed so basic a measure as antilynching legislation in the name of states' rights. Yet the original federal civil rights statutes, and their underlying constitutional amendments, were responses to outrages by states or to private outrages that states failed to ameliorate. Given the origins of the need for federal protection of civil rights, states' interests may have received undue weight in shaping federal civil rights policy.

Second, there is a seedy underside to the topic of federal protection of civil rights. For many years the federal government was more involved with denying blacks' rights than with protecting them. Well into the twentieth century federal employment policy included racial segregation and exclusion. De jure segregation in Washington, D.C., and the armed forces, government participation in segregated and racially isolated housing projects, racially prejudiced federal judges, and other circumstances demonstrate the depth of federal involvement in discrimination. Since the 1940s, however, there has been a trend toward increased federal protection of civil rights.

The Bureau of Refugees, Freedmen, and Abandoned Lands (the freedmen ' sbureau), created near the end of the civil war, may be viewed as the federal government's initial civil rights enforcement effort. The Bureau's statutory charge, "the control of all subjects relating to refugees and freedmen from rebel states," enabled it to perform a variety of social welfare functions. But this first effort to assist blacks was tainted by, among other factors, the Bureau's role in establishing the oppressive system of southern labor contracts. Although Bureau agents invalidated particularly harsh terms, such as those providing for corporal punishment, much depended on the local agent's views. The Bureau and the Union Army, no less than southern legislatures, felt most comfortable when blacks were on plantations under contract and not seeking their fortune in urban areas.

With few exceptions, federal protection of blacks via the Freedmen's Bureau terminated in 1868. Congress's other reconstruction legislation employed a variety of techniques to protect civil rights. The civil rights act of 1866 and the force act of 1870 imposed penalties on those who enforced discriminatory features of the southern black codes, and the 1870 act made it a crime to conspire to hinder a citizen's exercise of federal rights. The 1870 act also provided special protection for black voting rights and the Force Act of 1871 went further by providing for the appointment of federal supervisors to scrutinize voter registration and election practices. The Civil Rights Act of 1871 authorized civil actions and additional criminal penalties against those who violated constitutional rights and authorized the president to use federal forces to suppress insurrections or conspiracies to deprive "any portion or class of … people" of federal rights. The civil rights act of 1875, the culmination of the Reconstruction period civil rights program, imposed civil and criminal sanctions for discrimination in public accommodations, public conveyances, and places of amusement.

Armed with the criminal provisions of the civil rights program, federal prosecutors brought thousands of cases in southern federal courts and established criminal actions as the primary vehicle through which the federal government protected civil rights. This burst of protective activity, along with the rest of Reconstruction, disintegrated with the compromise of 1877 and the attendant withdrawal of federal troops from the South. In 1878, only twenty-five federal criminal civil rights prosecutions were brought in southern federal courts.

There are many reasons why federal criminal prosecutions were and are ineffective to protect civil rights. First, shortly after enactment of the post-Civil War anti-discrimination legislation, the Supreme Court limited Congress's power to protect civil rights. united states v. reese (1876) and james v. bowman (1903) invalidated portions of the 1870 act. united states v. harris (1883) and Baldwin v. Franks (1887) struck down the criminal conspiracy section of the 1871 act and the civil rights cases (1883) found the 1875 act to be unconstitutional. These and other cases, including the slaughterhouse cases (1873) and united states v. cruikshank (1876), also narrowly construed constitutional provisions and statutory provisions that were not struck down. The entire federal statutory civil rights program therefore depended upon those provisions that, almost by happenstance, survived judicial scrutiny. And some of these were eliminated by the civil rights repeal act of 1894 and a reorganization of federal law in 1909.

The principal criminal provisions that survived, now sections 241 and 242 of Title 18, United States Code, are not well suited to protecting civil rights. They always have been plagued by doubts about the particular rights they protect and the conduct they reach, and more generally by doubt about the federal government's role in law enforcement. Similar difficulties characterized federal civil remedies to protect civil rights. Finally, southern juries, until recently all white, have rarely convicted whites for violating the rights of blacks.

From the Compromise of 1877 until about 1940, reference to federal "protection" of civil rights would be misleading. Racism in America peaked in the early twentieth century, a fact reflected in the federal government's attitude toward blacks. theodore roosevelt's lunch with Booker T. Washington summarized his administration's concern with civil rights. Roosevelt's successor, william howard taft, did not even lunch with Washington, and under Taft and woodrow wilson segregation in federal employment was adopted. Neither Warren Harding nor Calvin Coolidge showed any inclination to rise above the worst racial attitudes of their times. As secretary of commerce, herbert hoover did desegregate the Census Bureau.

Attorney General frank murphy's decision in 1939 to establish a civil rights division within the Department of Justice represented a noticeable shift in federal enforcement activity. The new section studied the dormant post-Civil War statutes and adopted an enforcement program that led to such important decisions as united states v. classic (1941) and screws v. united states (1945). Federal criminal civil rights prosecutions, however, did not grow beyond several dozen cases a year. But two decades later, in monroe v. pape (1961), these cases served as precedents in establishing private enforcement of civil rights through section 1983, title 42, united states code.

Creation of the Civil Rights Division combined with other events to generate pressure for progress in the civil rights field. In June 1941, President franklin d. roosevelt issued an executive order creating a Fair Employment Practices Committee (FEPC). A response to defense needs and black political pressure, the executive order prohibited discriminatory employment practices on account of race, color, creed, or national origin in government service, in defense industries, and by trade unions. The order, administered by the FEPC, helped many northern blacks to obtain defense jobs and encouraged many southern blacks to move north.

But the nation was not ready for an aggressive federal civil rights program. Roosevelt himself was reluctant to propose or endorse civil rights legislation. In the 1930s, he even refused to endorse an antilynching bill pending in Congress. And where Roosevelt did act, Congress balked. Until 1944, the President's Emergency Fund financed the FEPC. Congress then required congressional approval for all executive expenditures. In 1946, the FEPC expired for lack of funds and subsequent efforts to establish a statutory FEPC failed.

The end of world war ii seemed to trigger or coincide with renewed violence against blacks. Following a Democratic party defeat in the 1946 congressional elections, President harry s. truman, in Executive Order 9008, created a presidential civil rights committee to conduct inquiries and to recommend civil rights programs. In its report, To Secure These Rights, the committee made far-reaching recommendations in the areas of voting, employment, and federally assisted programs, many of which would be enacted in the 1960s. Although President Truman recommended legislation based on the commission's report, his administration's civil rights accomplishments were to be on other fronts.

Truman, like other presidents, fostered civil rights most effectively in areas not requiring legislative action. Southern political power in Congress precluded significant civil rights legislation. In 1947, under black and liberal pressure, Truman authorized the Justice Department to submit an amicus curiae brief opposing judicial enforcement of racially restrictive covenants. Some believe this brief to have been influential in the Supreme Court's decision in shelley v. kraemer (1948), which rendered racially restrictive housing covenants judicially unenforceable. From 1948 through 1951, Truman issued a series of executive orders which prohibited discrimination by defense contractors, established a committee to study compliance with government contract provisions prohibiting discrimination, provided processes for handling employment discrimination complaints in federal departments and agencies, and called for equality of treatment and opportunity in the armed services.

Civil rights enforcement received little attention early in the administration of dwight d. eisenhower, but there were important exceptions to this pattern. Executive Order 10479 (1953) extended the antidiscrimination provisions previously required in defense contracts to all government procurement contracts. And after brown v. board of education (1954), Eisenhower could not avoid civil rights issues. Southern recalcitrance in the face of Brown led to a federal-state confrontation in Little Rock, Arkansas, which was settled through the presence of federal troops. (See cooper v. aaron.) But Little Rock marked no general turning point in the administration's enforcement efforts. Even when armed with increased authority to investigate denials of voting rights by the civil rights act of 1957, the Justice Department brought few cases.

john f. kennedy's administration also began with little impetus toward substantial civil rights achievement. But the rising tide of civil rights activity, increased public awareness, and continued southern resistance to desegregation made new federal–state confrontations inevitable. In May 1961, federal marshals were employed to protect freedom-riders. In September 1962, in connection with efforts to integrate the University of Mississippi, heavily outnumbered federal marshals and federalized National Guard troops withstood an assault by segregationists. Only the arrival of thousands of federal troops restored order. In the Birmingham crisis of 1963, which gained notoriety for the brutal treatment of demonstrators by state and local law enforcement officers, the federal government tried to act as a mediator. The administration's inability under federal law to deal forcefully with situations like that in Birmingham led Kennedy to propose further federal civil rights legislation.

Within the executive branch, the Interstate Commerce Comminssion, at the administration's request, promulgated stringent rules against discrimination in terminals. Armed with the civil rights acts of 1957 and 1960, the Civil Rights Division established by the 1957 Act conducted massive voter registration suits but secured only token improvements in black registration. Sometimes the judges blocking progress were Kennedy appointees. In November 1962 President Kennedy issued an executive order prohibiting discrimination in public housing projects and in projects covered by direct, guaranteed federal loans. And in executive orders in 1961 and 1963 Kennedy both required affirmative action by government contractors and extended the executive branch's antidiscrimination program in federal procurement contracts to all federally assisted construction projects.

Soon after lyndon b. johnson succeeded to the presidency, he publicly endorsed Kennedy's civil rights legislation. Due in part to his direct support, Congress enacted the civil rights act of 1964, the most comprehensive civil rights measure in American history. The act outlaws discrimination in public accommodations, in federally assisted programs, or by large private employers, and it extends federal power to deal with voting discrimination. Title VII of the act created a substantial new federal bureaucracy to enforce antidiscrimination provisions pertaining to employment. The 1964 act also marked the first time that the Senate voted cloture against an anti-civil rights filibuster.

Despite the efforts of the Kennedy and Johnson Justice Departments, the Civil Rights Acts of 1957, 1960, and 1964 proved inadequate to protect black voting rights. Marches and protests to secure voting rights led to violence, including an infamous, widely reported confrontation in Selma, Alabama, in which marchers were beaten. In March 1965, President Johnson requested new voting rights legislation. He included in his speech to the nation and a joint session of Congress the words of the song of the civil rights movement, "We shall overcome," thus emphasizing the depth of the new federal involvement in civil rights. By August, the voting rights act of 1965 was in place. Within ten years of its passage many more than a million new black voters were registered without great fanfare, with corresponding gains in the number of black elected officials. In 1968, after the assassination of Martin Luther King, Jr., Congress enacted a fair housing law as part of the civil rights act of 1968.

Unlike the Reconstruction civil rights program, Congress's 1960s civil rights legislation survived judicial scrutiny. In a series of cases from 1964 to 1976, the Supreme Court both sustained the new civil rights program and revived the Reconstruction-era laws. In Katzenbach v. McClung (1964) and heart of atlanta motel v. united states (1964) the Court rejected constitutional attacks on the public accommodations provisions of the 1964 act. In south carolina v. katzenbach (1966) and katzenbach v. morgan (1966) the Court rebuffed state challenges to the voting rights act of 1965. And in jones v. alfred h. mayer co. (1968) and runyon v. mccrary (1976) the Court interpreted the civil rights act of 1866 to fill important gaps in the coverage of the 1964 and 1968 acts.

With the passage and sustaining of the 1964, 1965, and 1968 acts and the revival of the 1866 act, the legal battle against racial discrimination at least formally was won. The federal civil rights program encompassed nearly all public and private purposeful racial discrimination in public accommodations, housing, employment, education, and voting. Future civil rights progress would have to come through vigorous enforcement, through programs aimed at relieving poverty, through affirmative action, and through laws benefiting groups other than blacks.

Just as the civil rights movement was running out of traditional civil rights laws to support, two other issues brought federal civil rights protection near its outer limits. The comprehensive coverage of federal civil rights laws did not eliminate the inferior status of blacks in American society. Pressure mounted for assistance in the form of affirmative action programs. But these programs divided even the liberal community traditionally supportive of civil rights enforcement. Affirmative action, unlike antidiscrimination standards, meant black progress at the expense of what many believed to be legitimate opportunities of innocent individuals. In its most important aspects affirmative action survived the initial series of statutory and constitutional attacks.

In the 1970s, civil rights enforcement became engulfed in another controversy: whether to bus school children for purposes of desegregation. (See school busing.) President richard m. nixon's 1968 "Southern strategy" included campaigning against busing. Within six months of Nixon's inaugural, the Justice Department for the first time opposed the naacp legal defense and education fund in a desegregation case. But under the pressure of Supreme Court decisions, and given the momentum of the prior administration's civil rights efforts, the Nixon administration did help promote new levels of southern integration. The administration, however, continued to lash out at "forced busing."

School desegregation also triggered a legislative backlash. In the 1970s the Internal Revenue Service, under the pressure of court decisions, sought to foster integration by denying tax benefits to private segregated academies and their benefactors. Congress, however, intervened to limit the Service's use of funds for such purposes. Similarly, Congress restrained executive authority to seek busing as a remedy for school segregation.

In the 1960s and 1970s, federal protection of civil rights reached beyond race. In the Age Discrimination in Employment Act, the age decrimination act of 1975, the rehabilitation act of 1973, and other measures, Congress acted to protect the aged and the handicapped. And the Equal Pay Act of 1963, the Civil Rights Act of 1964, and the education amendments of 1972 increased federal protection against sex descrimination. In each of these areas, attachment of antidiscrimination conditions to federal disbursements became a significant vehicle for civil rights enforcement.

Theodore Eisenberg


Berman, William C. 1970 The Politics of Civil Rights in the Truman Administration. Columbus: Ohio State University Press.

Brauer, Carl M. 1977 John F. Kennedy and the Second Reconstruction. New York: Columbia University Press.

Carr, Robert K. 1947 Federal Protection of Civil Rights: Quest for a Sword. Ithaca, N.Y.: Cornell University Press.

Gressman, Eugene 1952 The Unhappy History of Civil Rights Legislation. Michigan Law Review 50:1323–1358.

Harvey, James C. 1973 Black Civil Rights During the Johnson Administration. Jackson: University and College Press of Missouri.

Konvitz, Milton R. 1961 A Century of Civil Rights. New York: Columbia University Press.

Litwack, Leon F. 1979 Been in the Storm So Long: The Aftermath of Slavery. New York: Knopf.

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Federal Protection of Civil Rights

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Federal Protection of Civil Rights