CIVIL RIGHTS IN AMERICA
Regardless of the election, "the next four years are certain to see the most determined effort to enact federal civil rights laws since the 1870s"
A LITTLE more than a year ago, on October 29, 1947, the members of the X A- President's Committee on Civil Rights went to the White House to submit their Report to President Truman. Taking its title, To Secure These Rights, from the words of the Declaration of Independence, the Report examined the state of civil liberty in the United States and recommended a number of steps to bring our society closer to its ancient goals of freedom and equality of opportunity for every American. In the Declaration of Independence Thomas Jefferson had written, "to secure these rights, governments areinstituted among men." Thus the Civil Rights Committe.e was not departing from tradition when it came to the conclusion that government must accept responsibility for the safeguarding of basic rights essential to the individual in a democracy —the right to safety and security of the person, the right to citizenship and its privileges, the right to freedom of conscience and expression, and the right to equality of opportunity.
The year since the completion of the Committee's task has seen civil rights become the subject of bitter controversy. It has seen far-reaching political repercussions to the problem which may well result in a permanent realignment of party groupings. This is not the time or place to examine the politics of the problem. The Committee was a body of responsible American citizens, aware that realism must be mixed with idealism in any program to further the cause of civil liberty in America. But its members, Republicans and Democrats, were not concerned with the short-run political reactions which their report might provoke. Instead they sought honestly and fearlessly to point the way ahead as they saw it. Fortunately not all of the resulting discussion and controversy has been at the Dixiecrat level, for there has been intelligent criticism of the Report. Accordingly, it is not too early to re-examine the conditions and reasoning which led to the Committee's findings, in the light of the controversy which they have produced.
In an article in a recent issue of TheSunday New York Times, Hodding Carter, a well-known Southern liberal, takes a stand that places him in rather sharp conflict with the Civil Rights Report. He attacks in no uncertain terms the notion that remedial legislation is the answer to racial discrimination and related civil rights violations. Above all, he argues against federal legislative action in support of civil rights. Proposals for a federal anti-poll tax bill, anti-lynching bill, and fair employment practices bill all fail to find favor with him. Mr. Carter also warns against attempts to tamper with the pattern of racial segregation in the South. He asserts that separation of Whites and Negroes is "an actuality which the white majority intends to maintain in its mass aspects," and he warns that "a standing army would be necessary to end general segregation in the South." Finally, he pleads for what may be called the long-term approach to the civil rights problem. Let us concentrate on improvement of educational facilities so that white and black alike may be helped toward useful citizenship. Let us increase efforts to conserve the soil and natural resources so that our economy may provide opportunity and security for everyone. Let us attack slums and develop an adequate national housing program so that conflict and tension in the competition for homes may be eliminated. Such educational and economic efforts will in the long run do more to guarantee equality of opportunity and observance of civil rights to all Americans than will a frontal attack on Jim Crowism or statutory attempts to safeguard the right to life or the right to vote. So runs his argument.
Carter does not direct his case specifically against the Report of the President's Committee on Civil Rights. Nonetheless, the Report of that Committee is unquestionably serving as an intellectual basis for the proposals which he deplores. Indeed, it would not be incorrect to say that the two most significant positions taken by the Committee are (1) the need for positive governmental action, in large part federal in character, in support of civil rights, and (2) a belief that racial segregation as a way of life in America must go.
Let it be said at once that the Committee's Report does not minimize the role of education or the importance of a sound economic underpinning in the never-ending struggle to preserve our ancient freedoms. Where men would enjoy civil liberties they must understand in their minds and in their hearts the value of the free way of life. They must see the folly of prejudice, intolerance, and bigotry, and they must see why they must respect their neighbors' rights if their own are to be secure. Men must also enjoy a reasonable measure of economic opportunity and security if there is to be a favorable climate in which civil liberty can thrive. The President's Committee saw clearly that education and economic progress are vital to the safeguarding of civil rights. In the words of the Committee,
"government action alone, whether federal, state, local, or all combined, cannot provide complete protection of civil rights. Everything that government does stems from and is conditioned by the state of public opinion. Civil rights in this country will never be adequately protected until the intelligent will of the American people approves and demands that protection."
And again,
"The adoption of specific legislation, the implementation of laws or the development of new administrative policies and procedures cannot alone bring us all the way to full civil rights In a world forever tottering on the brink of war, civil rights will be precarious at best. In a nation wracked by depression and widespread economic insecurity, the inclination to consider civil rights a luxury will be more easily accepted. We need peace and prosperity for their own sake; we need them to secure our civil rights as well. We must make constructive efforts to create an appropriate national outlook—a climate of public opinion which will outlaw individual abridgements of personal freedom, a climate of opinion as free from prejudice as we can make it."
But the Committee saw also that there is no need to choose between education and legislation as though they were rival means of protecting civil rights.
"The argument is sometimes made that because prejudice and intolerance cannot be eliminated through legislation and government control we should abandon that action in favor of the long, slow, evolutionary effects of education and voluntary private efforts. We believe that this argument misses the point and that the choice it poses between legislation and education as to the means of improving civil rights is an unnecessary one. In our opinion, both approaches to the goal are valid, and are, moreover, essensential to each other."
The Committee saw further that many phases of the civil rights problem confronting the nation at the present time call for immediate action. Because education and efforts toward economic progress obviously cannot produce results overnight the Com mittee was led to recommend the enactment of numerous laws, federal and state, in support of specific rights, many of which laws would carry criminal sanctions to secure observance of their provisions. Because of the controversy which this recommendation has provoked, the Committee's case for dependence upon legislation as a means of securing civil rights may be spelled out in some detail.
The Case for Federal Legislation
A CAREFUL reading of American history since 1789 shows that by and large government has been a friend rather than an enemy of civil liberty. Contrary to the fears of the eighteenth century, the most serious threats to civil rights have resulted from the activity of private individuals and private organizations rather than from the activity of governmental agencies or public officers. This is one of those statements which it is difficult to prove statistically, and yet even a casual reading of history makes it clear that the lynch spirit, the hooded mob and the night rider have always been common phenomena in our land. For example, in one of the best studies of American civil rights which has yet appeared, Our Ancient Liberties, by Leon Whipple, it is said,
"The most extensive and frequent losses of liberty are due ... to the failure of the force of government to protect men from violence and mobs. The history of liberty could almost be written in terms of mobs that 'got away with it' and were never punished—from the Tory-hunters of 1778 to the Ku-Klux Klan of [today.]
If we give thought for a moment to the treatment which we have given the largest of our minorities, the point may be accepted. The ten percent of our population that is Negro has certainly suffered much, so far as loss of fundamental freedoms is concerned, at the hands of government. The Negro has frequently been kept from the ballot box on election day by law. There are still seventeen states which by law exclude the Negro from the main streams of society. And yet can anyone doubt that for every Negro who has been kept from voting as the result of legal restraint there is at least one other Negro who has been prevented from voting through acts of intimidation by private persons? And while there are seventeen states that segregate the Negro by law, can anyone deny that in the other thirty-one states Negroes are still far from free to associate with other men in places of business, the labor union, the church, the theater, the school, or wherever men gather?
Traditionally democracy has coped with the anti-social acts of individuals through criminal laws, such as those dealing with murder, arson and burglary. Why should not we regard one man's interference with another man's civil rights in the same way? If one man willfully and deliberately interferes with another man's right to vote, why should not that be regarded as criminal action and punished accordingly?
An objection is promptly heard to such a proposal. It is argued that civil rights violations almost always have their origins in prejudice and intolerance, and that unfortunately prejudice and intolerance cannot be eliminated by passing laws. To put the argument in an oft-repeated phrase, it is said that we can not change human nature by passing a law. Many intelligent and liberal people hold this view. For example, when New York State was considering the enactment of a fair employment practices bill designed to outlaw racial and religious discrimination in employment, such well-known liberals as Oswald Garrison Villard and Eleanor Herrick wrote to The New York Times, "It is as impossible to destroy prejudice and discrimination by law as it is to control opinions or morals."
This point of view, while at first thought seemingly persuasive, is in the end something less than a half truth. It may be impossible to eliminate prejudice and intolerance by law. It may be impossible to change human nature by law. But human behaviour is subject to social control by law. Statutes against murder cannot be expected to destroy utterly the murderous hatreds and drives that take shape in some individuals. But surely such laws have deterred more than one man from putting his drives or hatreds into practice for fear of the punishment that may well follow. In other words, the evil practices which are the visible manifestations of prejudice are subject to control by law.
At the same time it must be admitted that civil rights laws, particularly those that carry criminal sanctions, are somewhat more difficult to enforce than the average criminal statute. It is unfortunately true that the victim in a civil rights case is frequently a person with very little standing in his own community. His economic resources are limited, his social prestige is at a minimum. All too frequently his oppressor is a person of considerable standing. Under these circumstances it is difficult to persuade law enforcement officers to invoke the law, and it is difficult to persuade judges and juries to apply the law. And yet the task is not an impossible one. For example, the record of the Civil Rights Section of the Department of Justice during the -ten years of its existence shows that civil rights laws carrying criminal sanctions can be enforced, at least to the extent that they are responsible for improvement in the condition of our rights. The work of this agency is clearly one of the forces that has brought about the very considerable decline in lynchings during the last decade. More recently, the experience of New York State under the Fair Employment Practices Act, which was passed in spite of the objection referred to, shows that racial and religious discrimination in employment can be ameliorated by law. It has not been necessary to invoke the final sanction, provided by law, in a single case. In other words, while it is obvious that New York has not yet established any Utopia in this area, the very existence of such a law on the statute books has seemingly had a beneficial effect with respect to-employment practices.
Secondly, what about federal leadership? Why should the federal government undertake to develop a civil rights program, particularly in view of the oftrepeated statement that where a people would know the free way of life, liberty must first be won in the local community? Clearly there is great truth in this latter position. The battle for civil rights always has been fought and always must be fought in good part on the local front. The President's Committee on Civil Rights, in spite of the fact that it was a federal agency called into being by the President and given the primary responsibility of suggesting a federal legislative program, directed many of its recommendations to the states and even to local communities.
And yet there are certain compelling reasons why federal action is necessary. Let us consider three. In the first place, the record shows that in so far as civil liberty has been endangered by public officers, rather than by private individuals, the greatest threat has come from state and local rather than federal public officers. Here again is an assertion which is difficult to prove statistically. There are certain reasons, however, why this is so. Take, for example, freedom of the press. It is true that a federal statute dealing with sedition may offer a very serious threat to freedom of the press and freedom of speech. Against the threat offered by such a statute the threat resulting from a single local ordinance restricting or prohibiting the distribution of hand bills is minor indeed. But the record shows that in the collective sense local ordinances dealing with the distribution of hand bills or regulating the holding of public meetings have offered at least as great a threat, if not a greater one. to freedom of expression than has any federal statute.
Or again, take the position of the individual who is accused of crime, placed on trial, and threatened with loss of liberty or life. The catalogue of civil rights is very largely concerned with offering such an individual various safeguards. I am referring, of course, to the provisions relating to a fair trial, to the rights to the assistance of counsel, to freedom from unreasonable search and seizure, self-incrimination, and cruel and unusual punishment. Under our constitutional system it is the state or local government which nine times out of ten accuses the individual of crime, places him on trial and thereby subjects him to the danger that one of his civil rights may be interfered with.
One indication that the assertion is not incorrect is seen in the work of the Supreme Court during the last twenty-five years. During this quarter of a century the Court has concerned itself to an everincreasing extent with civil rights problems. In the overwhelming majority of the civil rights cases of this period wherein the high court of the land has protected some individual against a threat to his freedoms offered by the actions of a public officer, the public officer was a state or local official rather than a federal one.
Where a state or a community is either unable or unwilling to prevent its officers from encroaching upon fundamental freedoms, the federal government of the United States has a responsibility to step in and take action. Indeed, the Constitution places an express obligation upon that government in this respect. The Thirteenth, Fourteenth and Fifteenth Amendments say in so many words that the federal government shall take steps to see that the rights which are protected against state and local action by these Amendments are safeguarded.
The second reason for immediate federal action in the civil rights field is one of logic. Does it not make sense to use the high moral tone of the whole society to check the lapses of wayward parts? Let us use the analogy of a city ward in which crime and delinquency are rampant. The city as a whole does not hesitate for a moment to use resources and facilities outside the stricken area in dealing with the problem. Extra police officers will be poured into the ward; city-wide ordinances which reflect a higher moral tone than is to be found in the area will be invoked. It may be that in the long run the ward must find its salvation within itself. Almost certainly steps must be taken to bring about the economic and social rehabilitation of the area before its problem can be finally solved. But so far as the immediate threat is concerned, the city as a whole must deal promptly with the situation.
In other words, the many and varied components that make up the moral fiber of the larger area give it a strength and resiliency which cannot be matched in many of its parts. In our nation at large we have shown a deeper understanding of the free way of life and a higher regard for civil rights than has been the case in certain of our states or sections or communities. Should we not put that greater sense of responsibility to work in protecting our basic rights?
The third reason for federal action is the international situation. Whether we like it or not, our civil rights record today is an international issue. More than one American diplomat in recent years has been embarrassed in his actions at an international conference in seeking, shall we say, democratic governments in foreign lands, by the knowledge that in certain parts of the United States free elections do not exist. Secretary of State Byrnes, coming as he did from South Carolina, was particularly vulnerable in that respect.
The President's Committee on Civil Rights saw evidence that in recent years whenever a lynching has occurred in this country the word has echoed from one end of the globe to the other within twentyfour or forty-eight hours. People all over the world, particularly members of colored races—and two-thirds of the world's population is colored—have looked to the national government of the United States for an explanation as to how such a shocking event can occur in a civilized land. More important, they have looked to the national government for the taking of remedial steps to prevent recurrence of such shocking events.
Dean Acheson, when he was Acting Secretary of State, had this to say about the international implications of the American civil rights problem:
"The existence of discrimination against minority groups in this country has an adverse effect upon our relations with other countries. We are reminded over and over by some foreign newspapers and spokesmen, that our treatment of various minorities leaves much to be desired. While sometimes these pronouncements are exaggerated and unjustified, they all too frequently point with accuracy to some form of discrimination because of race, creed, color or national origin. Frequently we find it next to impossible to formulate a satisfactory answer to our critics in other countries; the gap between the things we stand for in principle and the facts of a particular situation may be too wide to be bridged. An atmosphere of suspicion and resentment in a country over the way a minority is being treated in the United States is a formidable obstacle to the development of mutual understanding and trust between the two countries. We will have better international relations when these reasons for suspicion and resentment have been removed."
Let us take a specific case, the beginnings of which go back to 1913, but which has recently been in the courts. In 1913 California, after six years of agitation, passed an Alien Land Law which made it impossible for Japanese aliens, as well as any other persons ineligible for American citizenship, to own or occupy agricultural land in the state. Three Presidents of the United States appealed to California not to pass such a law for fear of the adverse reaction which might occur in Japan. California went ahead in spite of these protests. Early in 1948 the United States Supreme Court considered the constitutionality of the Alien Land Law and in one of the opinions in the case it is stated,
"The passage of the law was an international incident. The Japanese Government made an immediate protest on the ground that the statute was an indication of unfriendliness towards its people. Indeed, the resentment was so violent inside Japan that demands were made that war be declared against the United States. Anti-American agitation grew rapidly."
Who can doubt today that the passage of this law in 1913 by California was one of the things that finally led the Japanese people to feel such hatred toward the United States, or that it was a factor in the rise to power in Japan of agitators and extremists who guided that country's policies in directions which are now only too well known? Or who can be certain that similar actions by state governments or American communities today may not be giving similar offense to foreign peoples that may one day help bring about an international crisis which, whether we like it or not, will concern the United States as a whole? Irresponsible action by some of our people can well do grave damage to all of us.
In other words, as a nation in a troubled world, we cannot wait for our slowest state or our most backward community to catch up and to see to it that all freedoms are guaranteed to all of their people. Here is one of the points where a sense of urgency with respect to the civil rights problem cannot be avoided. It was perhaps this kind of consideration which led President Truman to say at the Lincoln Memorial in June of 1947, "We can no longer afford the luxury of a leisurely attack upon prejudice and discrimination." It would be particularly ironic, if not tragic and disastrous in the end, for the American government, at the same time that it takes the lead through the Human Rights Commission of the United Nations in the development of an International Bill of Rights, to fail to safeguard fundamental freedoms in our own land.
In emphasizing the need for positive government action in support of civil rights, the President's Committee did not overlook the danger that government may encroach upon our liberties. Civil rights are always in danger from government. That is a political truth from which there is no escape. It is the inevitable result of the power which must be vested in government. Man's political history can almost be told as a story of conflict between authority and liberty—the liberty of the individual to live his life as he pleases and the authority of government to deal with the problems that must be met in a civilized society. It is true that freedom-loving peoples in recent centuries, through the device of constitutionalism, have found a way of striking a sort of balance or equilibrium between freedom and liberty. Moreover, our own Constitution has certainly been as successful as any that the world has yet seen. And yet in the end no such balance or equilibrium can be perfect or permanent. There is always the danger that the public officer who has been granted the necessary power to deal with social problems may use that power in such a way as to encroach upon fundamental freedoms. There is no sure way of avoiding this danger. Accordingly, we need to be eternally vigilant against this threat that lies in government itself.
The Case Against Segregation
THREE arguments persuaded the President's Committee that racial segregation must go. The first was an argument at the level of principle. In the end the Committee believed that no amount of rationalizing or philosophizing can explain why, in a nation that prides itself on its traditions of freedom and liberty, certain segments of the population can be compelled to live apart from the main currents of the national life, for no better reason than that their skin-color or their religious beliefs differ from those of the majority.
In the second place, the Committee was convinced that the so-called "separate but equal" experiment has ended in failure. The separate but equal policy is the best rationalization which supporters of segregation have advanced. According to this policy it is proper to segregate people because of the color of their skin, but they are to be afforded absolutely equal facilities to those which are made available to the majority of the people, particularly when it comes to those services that are supplied by government. The President's Committee saw evidence that the facilities afforded the separated races, while indeed separate are, after long years of effort, still far from equal. For example, as late as the school year, 1943-44, in all but three of the seventeen states which maintain segregation in schools, the average salary paid a teacher in a Negro school was less than that paid a teacher in a white school. Moreover, in several of these states the teacher in the Negro school received less than half the wages paid the teacher in a white school. Similar evidence was available as to the inferior quality of the government services supplied segregated peoples in the areas of health, housing and recreation.
Even in the District of Columbia, where the one-third of the population which is Negro is segregated in most if not all respects, discrepancies exist at many points. In other words the superior moral climate which presumably is found in the Nation's Capitol and the admittedly superior financial resources which Congress can use in trying to make government services truly equal have not been sufficient to provide the Negro in Washington with facilities equal to those afforded whites.
Thirdly, the Committee was impressed by findings which suggest that segregation keeps people apart and prevents them from learning by experience, through living and working together, that skin color or religious belief are largely irrelevant considerations in determining a man's worth; that the character and integrity of the individual are far more important than his membership in a racial or religious group. Three studies were noted by the President's Committee, each involving inter-racial experiments in living and working together—one in housing, one in the merchant marine, and one in the armed services during the last war. In all three of these studies the findings seem to show that where men do live and work together, regardless of race and religion, prejudice and intolerance begin to decline, and awareness of the importance of the individual as against his membership in the group to grow.
No responsible person can expect or demand the elimination of segregation from American life overnight. Yet here, too, time is a factor. The President's Commit tee on Civil Rights could not help but be impressed by the sense of anger, frustration, and righteous indignation which marks the fourteen million Americans who are Negroes. One cannot impugn the loyalty of the American Negro to this country. Yet plain common sense dictates that no individual's feeling of loyalty to an institution or way of life should be pressed too far where he feels that the institution or the way of life is not giving him a fair deal. We need to view, for example, the recent appeal by the National Association for Advancement of Colored People to the Human Rights Commission of the United Nations asking that Agency to review the Negro's position in American life as a very serious warning indeed.
It should be emphasized that the Civil Rights Report is by no means confined to an examination of the Negro problem, nor are its recommendations directed solely against the South. Many aspects of our civil rights problem have little to do with racial or religious minorities—freedom of speech, for example—and are just as apt to reach a critical point in Maine or Minnesota as in Georgia or Texas. Nonetheless, the so-called "minorities" are the weakest units in our population and their civil rights are exceedingly vulnerable. Negroes make up our largest minority and they are centered in the South. Thus if the South has reacted more violently to the Committee's recommendations than have other sections it is only because the shoe fits all too well. But we should not allow the Southerner's indignation to turn the civil rights problem into a squabble between sections, nor to divert our attention from the fact that many phases of the Negro civil rights problemas well as civil rights problems that do not primarily concern the Negro, or even other minorities—are nationwide in scope.
We need also to recognize that the 1948 Presidential Election can hardly prove more than an incident in the controversy over civil rights. Regardless of its outcome the problem will remain with us. Truman is committed to the most comprehensive civil rights program ever offered by a Presidential candidate. Dewey, as Governor of New York, has actually brought about the adoption of the most drastic civil rights legislation now in effect in any state. Accordingly, the next four years are certain to bring a continuation of the debate over the problem and to see the most determined effort to enact federal civil rights laws since the 1870s.
One final word. We have a long way to go. The Report o£ the President's Committee is largely concerned with a recital of the bad things in our civil rights record. It is a long and very serious list of wrongs. And yet we need to remind ourselves that we have come a long way, too; that no nation in history has ever made available a free way of life for so many people or offered such hope of the free way of life for all of its people as has our own.
The members of the President's Committee could not help being troubled by the enormity of the civil rights problem. But they did not despair, for they said in their Report,
"We have seen nothing to shake our conviction that the civil rights of the American people—all of them—can be strengthened quickly and effectively by the normal processes of democratic, constitutional government. That strengthening, we believe, will make our daily life more and more consonant with the spirit of the American heritage of freedom. But it will require as much courage, as much imagination, as much perseverance as anything we have ever done together. The members of this Committee reaffirm their faith in the American heritage and in its promise."
THE AUTHOR: Professor Robert K. Carr '29 is nationally known as an authority on civil rights, a field in which he has made special studies for many years. Before him in the picture above are his book, "Federal Protection of Civil Rights," published at Cornell last year, and the report, To Secure These Rights" in the preparation of which he had a major hand" as executive secretary of the Presidents Committee on Civil Rights. He teaches courses on Congress and the U.S. Constitution.
JOEL PARKER PROFESSOR OF LAW AND POLITICAL SCIENCE
