RACIAL JUSTICE

In 1776, the American revolutionaries issued that bold and

eloquent tribute to the principles of self-determination and human

equality, the Declaration of Independence. Yet at the very time

the Declaration of Independence was proclaimed, chattle slavery

had existed in the Western hemisphere for nearly two centuries,

and almost one quarter of the North American population lived in

total bondage.

The United States Constitution, with its ten amendments that

comprised the Bill of Rights, did not correct this glaring

contradiction. In fact, the Constitution explicitly legitimized

the institution of slavery in three of its provisions: It counted

a slave as only three-fifths of a person for the purpose of

apportioning seats in the House of Representatives; it prohibited

Congress from abolishing the slave trade until 1808, and it

provided for the swift return of fugitive slaves to their owners.

To the new nation's enslaved people of African descent, the

Constitution underscored, rather than provided relief for, their

condition of servitude. As a symbolic comment on that reality,

during the early 1800s white abolitionist William Lloyd Garrison

burned a copy of the Constitution at an anti-slavery rally in

Boston, to the cheers of thousands of supporters.

THE SLAVE CODES

In contrast to the condition of entitlement and privilege enjoyed

by white Americans, black people in bondage lived under a system

founded on repression and terror. Under the "Slave Codes" that

regulated every aspect of their lives, enslaved blacks had no

access to state courts and could not make contracts or own

property. A slave could not strike a white person, even in

self-defense. And the rape of a slave woman was considered, not a

violent assault on a human being, but a trespass against a white

person's property. The codes were mercilessly enforced through

slave tribunals, night patrols, public rituals of torture (such as

whipping, branding and even boiling in oil), imprisonment and

death. Of those blacks who organized or participated in revolts

against slavery, few survived. Nonetheless, history records 250

slave rebellions during the centuries that slavery existed.

In 1857, against a backdrop of increasing national disunity over

the issue of slavery, the U. S. Supreme Court announced its

decision in the case of Dred Scott v. Sandford. Dred Scott was a

freed slave who, upon being reenslaved when he returned to the

South from a trip North with his former master, sued in federal

court for his permanent emancipation and citizenship status. The

Court ruled that no blacks, whether slave or free, could be

citizens of the United States because the Constitution itself

excluded them from the national community. This exclusion, said

the Court, was justified by the fact that blacks were "subordinate

and inferior beings, who had been subjugated by the dominant race,

and, whether emancipated or not, yet remained subject to their

authority." Black abolitionist Frederick Douglass was prescient

when he said of the Dred Scott decision:

"The Supreme Court is not the only power in this world.

We, the abolitionists and colored people, should meet

this decision, unlooked for and monstrous as it appears,

in a cheerful spirit. This very attempt to blot out

forever the hopes of an enslaved people may be one

necessary link in the chain of events preparatory to the

complete overthrow of the whole slave system."

Four years later, the Civil War erupted.

EMANCIPATION AND THE BLACK CODES

Two years into the Civil War, on January 1, 1863, President

Abraham Lincoln issued the Emancipation Proclamation, an executive

fiat that freed all the slaves in the Confederate states. In the

course of the war, hundreds of black men, women and children

served the Union cause as cooks, couriers and spies; 179,000 black

men fought in the Union army, and 37,300 of them died. On December

6, 1865, six months after the war ended in a Union victory, the

states abolished the institution of slavery forever by ratifying

the Thirteenth Amendment: "Neither slavery nor involuntary

servitude, except as a punishment for crime whereof the party

shall have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction."

The vanquished Confederacy did not accept defeat gracefully. In

response to the Thirteenth Amendment, the Southern states revived

the Slave Codes, now labeled the "Black Codes," and imposed on

African Americans a status

that differed from slavery in name only. For example, South

Carolina's code provided that: blacks could not enter and live in

the state unless they posted a $1,000 bond; and no black person

could become a shopkeeper, artisan or mechanic or pursue any other

business without obtaining a court license -- which the courts

could arbitrarily refuse to grant. Throughout the South, "lack of

means of visible support" was a crime, and both black and white

partners of interracial marriages could be sent to prison for

life.

These practices reflected determination on the part of white

citizens of the Old South to keep black people, if not in

chattles, in political, economic and social bondage.

RECONSTRUCTION

The centerpiece of the postwar period -- referred to,

historically, as Reconstruction -- was a Congress dominated by the

anti-slavery Radical Republicans. These political leaders,

infuriated by the recalcitrance of the former Confederacy, set

about dismantling the vestiges of slavery through enactment of a

succession of new laws and constitutional amendments.

In March 1866, Congress passed its first Civil Rights Act by an

overwhelming majority. The Act guaranteed federal protection for

freed slaves, invalidated the Black Codes and explicitly conferred

"the rights of citizenship" on all black people.

The Fourteenth Amendment was drafted in the same year and sent to

the state legislatures for ratification. Its purpose was to put

the weight of the Constitution behind the Civil Rights Act of

1866, and to apply the Bill of Rights to state and local

governments. The Fourteenth Amendment, ratified on July 9, 1868,

conferred citizenship upon all persons born in the United States,

and forbade the states from depriving any person "of life, liberty

or property without due process of law," or denying to any person

"equal protection of the laws."

In 1869, the Fifteenth Amendment was passed by Congress and

ratified a year later, on February 3. This last of the Civil War

amendments enfranchised the freed slaves: "The right of citizens

of the United States to vote shall not be denied or abridged by

the United States or by any State on account of race, color, or

previous condition of servitude."

Congress enforced the Reconstruction of the South by maintaining a

strong military presence throughout the region. It established the

Freedmen's Bureau to provide emergency relief for the war weary

and impoverished, both black and white, and set up special courts

to arbitrate disputes between the races.

Congress also facilitated a massive voter registration campaign.

By 1867, there were 735,000 blacks and 635,000 whites on the

voting rolls in the ten states of the Old South. State

constitutional conventions, dominated by Radical Republicans and

emancipated slaves, enacted state constitutions that contained

some of the most enlightened provisions ever conceived in our

nation. Some of the ten documents obligated the states to care for

the poor, sick and mentally ill, eliminated debtors' prisons, and

eliminated property qualifications for voting and holding public

office. All of them called for universal public education and

universal male suffrage.

But this era of enlightenment was not to last long. For even as

the Reconstruction legislatures and Freedmen's Bureau were

attempting to reorder the political, economic and social relations

of the South, the forces of white supremacy were organizing to

undo what had been accomplished.

RECONSTRUCTION SPURNED

As the 1870s ensued, white supremacist groups, whose members were

drawn from the ranks of Confederate Army veterans, Rifle Clubs,

White Leagues, Red Shirts and the Ku Klux Klan embarked on a

campaign of relentless terror against blacks and their white

supporters. The mission of such groups was to destroy the

Reconstruction state governments through intimidation of voters,

and to run blacks out of all areas of public life. Boasted one Ku

Klux Klan official: "I intend to kill Radicals."

During the state and local elections of 1874, blacks who showed up

at polling places, intending to vote, were surrounded by white

mobs and beaten. A black senator from Mississippi was murdered by

night riders. Congress passed the final piece of legislation

associated with Reconstruction, the Civil Rights Act of 1875,

guaranteeing equal access to public accommodations regardless of

race or color. But by 1876, the South was moving full tilt in the

direction of consolidating its reversal of the Reconstruction

process, with only Louisiana, South Carolina and Florida still

retaining Republican governments. The rest of the state

legislatures had been "redeemed" by Southern Democrats opposed to

racial equality. A disheartened and angry Frederick Douglass,

speaking at the Republican National Convention of 1876, asked:

"What does it all amount to if the black man, after

having been made free by the letter of your law, is to

be subject to the slaveholder's shotgun? The real

question is whether you mean to make good to us the

promises of your Constitution."

The Republican Party answered Douglass's question with a

resounding "no" by nominating Rutherford B. Hayes, whose campaign

had stressed home rule for the South. Soon after being elected

President of the United States, Hayes implemented what would

become known as the "Compromise of 1877": The federal government

withdrew the last of its troops from the South, and African

Americans were left to defend their rights of citizenship as best

they could under extremely adverse conditions.

Reconstruction had not fundamentally altered the social structures

of the South that existed before the Civil War. Thus,

disfranchisement, total exclusion from the political process and

pervasive poverty were to characterize the lives of Southern

blacks well into the 20th century.

THE SUPREME COURT ACQUIESCES

The United States Supreme Court, through its decisions, could have

undergirded and breathed life into the constitutional amendments

and civil rights legislation enacted in the wake of the Civil War.

But it chose, instead, to assist in emasculating the achievements

of Reconstruction.

In 1883, the Court announced its decision in the Civil Rights

Cases, five consolidated cases that challenged the

constitutionality of the Civil Rights Act of 1875. The Court

struck the Act down, on the ground that the Civil War Amendments

regulated only government action and, thus, did not bar

discrimation by such private individuals as hotel owners, theater

proprietors and railroad companies.

The Civil Rights Cases decision unleashed a hail of new anti-black

laws throughout the South. These laws, called "Jim Crow" laws

after the title of a minstrel song portraying blacks as childlike

and inferior, enforced a rigid caste system of segregation and

discrimination that reached into every corner of Southern life.

Blacks and whites were separated on trains, in depots, and on boat

wharves. Blacks were excluded from white hotels, barber shops,

restaurants and theaters. And by 1885, most Southern states

maintained segregated school systems.

Segregation laws sometimes carried the theme of racial separation

to incredible extremes: For example, in Birmingham, Alabama, it

was a crime "for a Negro and a white person to play together or in

the company of each other at checkers or dominoes."

The Supreme Court finally ruled on the constitutionality of Jim

Crow laws in 1896, in the historic case of Plessy v. Ferguson. The

petitioner was Homer A. Plessy, whose racial identity was

determined to be "seven-eighths" white and "one-eighth" black. Mr.

Plessy, after refusing to obey a conductor's order to leave the

first class coach of a Louisiana railroad train where he had taken

a seat, had been arrested and convicted of "going into a coach or

compartment to which by race he does not belong." The Supreme

Court, taking the opportunity presented by Plessy's appeal to

place its imprimatur on the "separate but equal" doctrine, ruled

that Jim Crow laws did not violate the Thirteenth or Fourteenth

Amendments. Going a step further, the Court scolded African

Americans for taking offense at discrimination:

"We consider the underlying fallacy of the plaintiff's

argument to consist in the assumption that the enforced

separation of the two races stamps the colored race with

a badge of inferiority. If this be so, it is not by

reason of anything found in the act, but solely because

the colored race chooses to put that construction upon

it.

The lone dissenter on the Court, Justice John Marshall Harlan,

wrote with great foresight: "In my opinion, the judgment this day

rendered will, in time, prove to be quite as pernicious as the

decision made by this tribunal in the Dred Scott Case."

The years following the Plessy decision were times of severe

economic hardship and political powerlessness for African

Americans. The Southern states instituted a variety of measures,

such as literacy tests and poll taxes, that effectively

disfranchised blacks. For example, black voter registration in

Louisiana declined from 130,334 in 1896 to only 5,320 in 1900.

Blacks who dared to object, and even many who did not, often fell

victim to Ku Klux Klan terrorism. Indeed, at least 3,600 lynchings

of black people (ritualized hangings or burnings of blacks by

white vigilantes) occurred between 1884 and 1914.

The South was not the only region of the country inhospitable to

black citizens. As the 19th century gave way to the 20th, race

riots in Northern cities became increasingly commonplace, as did

discriminatory laws and practices.

THE WINDS OF CHANGE

But the turn of the century was also accompanied by the stirrings

of change. In June 1905, the Harvard-educated historian and

sociologist, W.E.B. DuBois, brought together a group of young

black intellectuals in Niagara Falls, Canada to draw up a platform

for change that listed, among its priorities, black suffrage and

the abolition of all legal distinctions based on race.

Incorporating themselves as the Niagara Movement, these activists

subsequently joined with white social reformers and veterans of

the abolitionist crusade to organize, in 1909, the National

Association for the Advancement of Colored People (NAACP). The

NAACP adopted a program that demanded equality in education,

enforcement of the Fourteenth and Fifteenth Amendments, and an end

to all forced segregation. Other organizations sprang up in

response to the example set by the NAACP, including the Commission

on Interracial Cooperation and the National Urban League.

As the movement for racial equality under the law burgeoned and

confronted offialdom with new challenges to legal discrimination,

the Supreme Court began to chip away at the edifice of Jim Crow.

In 1917, in Buchanan v. Warley, the Court declared that a

Louisville, Kentucky ordinance requiring residential segregation

violated the Fourteenth Amendment.

By 1921, the NAACP had 400 branches throughout the United States,

and the civil rights movement had become a fixture of the American

landscape. Throughout the Depression years, the movement and its

institutions experienced membership growth, continued philanthropy

from white supporters and incremental legal victories. World War

II further energized the movement: Black soldiers, after fighting

and dying for freedom abroad by the tens of thousands -- in a

segregated U.S. army -- returned more determined than ever to win

freedom at home.

In 1946, in Morgan v. Commonwealth of Virginia, the Supreme Court

struck down segregation in interstate bus travel and in railway

dining cars. In 1948, in Shelley v. Kraemer, the Court ruled that

"restrictive covenants" used to bar the sale of private

residential properties to blacks, were unconstitutional. And in

1950, in Henderson v. United States, the Court affirmed its

rejection of segregated facilities in bus and train travel.

BROWN AND ITS AFTERMATH

Notwithstanding the Cold War climate of political repression and

contempt for civil liberties that blanketed the land as the 1950s

dawned, the civil rights community was in a mood to attempt a

direct hit on the "pernicious" separate but equal doctrine. The

target the NAACP chose for what would be its frontal assault on

legal segregation was the field of education.

In 1952, NAACP legal director Thurgood Marshall argued five

consolidated cases from Delaware, the District of Columbia,

Kansas, South Carolina and Virginia before the Supreme Court, over

which a new Chief Justice, Earl Warren, presided. On May 17, 1954

the Court announced its most farreaching decision of this century,

in Brown v. Board of Education. Speaking for a unanimous Court,

Chief Justice Warren wrote:

"We conclude that in the field of public education the

doctrine of 'separate but equal' has no place. Separate

educational facilities are inherently unequal...Any

language in Plessy v. Ferguson contrary to this finding

is rejected."

The Brown decision set the precedent for the overturning of other

forms of government-imposed segregation. The courts soon ordered

the desegregation of parks, beaches, sporting events, hospitals,

publically-owned or managed accommodations and other public

facilities. But court decisions are not handed down in a vacuum,

and they were not sufficient to close out this chapter of our

nation's history.

Turmoil reigned in the Deep South, where black people, pushed to

their limit of endurance and inspired by visionary leadership, had

opted for non-violent direct action to challenge discrimination.

The protests -- which included, among many other campaigns, the

Montgomery bus boycott, the Greensboro lunch counter sit-ins, the

Freedom Rides and the Mississippi Freedom Summer voter

registration drive -- were met with police violence, mob assaults

and murder.

But the protesters and their supporters would not give up. As the

movement pressed on, the entire nation bore witness, through

television, to the violent efforts to suppress it. Feeling

enormous moral pressure, the American people responded: On August

28, 1963, a quarter of a million Americans joined in a March on

Washington for racial justice -- until that date, the largest

protest demonstration in the nation's history. Now the federal

government had to respond to the protesters' grievances with

concrete remedies.

A SECOND RECONSTRUCTION

After almost a century of inactivity on civil rights issues,

Congress embarked on an aggressive legislative program to end

segregation "root and branch." First, it passed the Civil Rights

Act of 1964, which declared certain private acts of discrimination

unlawful. Title II of the Act prohibited discrimination in

privately-owned facilities open to the public (hotels,

restaurants, swimming pools, etc.); Title VI forbade

discrimination in federally-funded programs, and Title VII

prohibited employment discrimination in both the public and

private sectors.

In 1965, Congress passed the Voting Rights Act, which finally put

teeth into the long ignored Fifteenth Amendment. The Act outlawed

such devices as literacy tests, which had been deliberately

fashioned to disqualify blacks from voting, and assigned the

supervision of new registration procedures to the U.S. Department

of Justice. Congress also required Justice Department

pre-clearance of all proposed changes in election procedures and

laws in states that had a history of legal discrimination.

Next, Congress passed the Civil Rights Act of 1968 -- one week

after Martin Luther King, Jr. was assassinated on a hotel balcony

in Memphis, Tennessee. The Act, which was the country's first open

housing law, prohibited discrimination in the sale, rental,

financing and advertising of housing.

During this "Second Reconstruction," the Supreme Court acted

differently than it had during the first: The Court upheld the new

laws as legitimate exercises of the Congressional will to undo

past injustices. In case after case, throughout the 1960s and

1970s, federal courts struck down discriminatory laws and

practices -- in the areas of employment, public accommodations,

voting, education, the administration of justice -- and designed

new and creative remedies intended at least to lessen the effects

of 300 years of slavery, and 100 years more of pervasive racial

discrimination.

The courts based their decisions, not only on the most recent

civil rights legislation, but also on its precursors -- those

post-Civil War amendments and laws that had been buried for almost

a century. Judge John Minor Wisdom of the U.S. Fifth Circuit Court

of Appeals, which covers the states of the Deep South, captured

the spirit of the times in his opinion in U.S. v. Jefferson County

Board of Education (1966):

"Brown's broad meaning, its important meaning, is its

revitalization of the national constitutional right the

Thirteenth, Fourteenth and Fifteenth Amendments created

in favor of Negroes. This the right of Negroes to

national citizenship, their right as a class to share

the privileges and immunities only white citizens had

enjoyed as a class. Brown erased Dred Scott, used the

Fourteenth Amendment to breathe life into the

Thirteenth, and wrote the Declaration of Independence

into the Constitution. Freedmen...are created as equal

as are all other American citizens and with the same

unalienable rights to life, liberty, and the pursuit of

happiness.

African Americans were not the only beneficiaries of their

struggle for freedom, or of what one scholar has called the

"egalitarian revolution in Constitutional law" that their struggle

set in motion. The black movement galvanized other racial and

ethnic minorities -- Native Americans, Hispanics, Asians -- as

well as women, the elderly, the young, gay men and lesbians,

prisoners, soldiers and disabled people, to organize and demand

their rights. Indeed, all Americans have benefited from the civil

rights laws and legal precedents established in recent decades.

THE BACKLASH

A core concept of the Second Reconstruction was that removing the

formal, legal barriers arrayed along the path to equal opportunity

was not, by itself, enough. Since black people had experienced

centuries of exclusion, compensatory measures would also be

necessary to unburden them and make the promise of full equality a

reality. This concept was embraced on the highest level of our

federal government -- the White House. In 1965, in a speech at

Howard University, President Lyndon Johnson observed:

"Freedom is not enough. You do not wipe away the scars

of centuries by saying: Now, you are free to go where

you want, do as you desire, and choose the leaders you

please. You do not take a man who for years has been

hobbled by chains, liberate him, bring him to the

starting line of a race, saying, 'you are free to

compete with all the others,' and still justly believe

you have been completely fair. Thus it is not enough to

open the gates of opportunity."

That perspective is reflected in the remedies the federal courts

have crafted to try to overcome the consequences of past

discrimination. For example, in cases where employers have had a

proven history of discriminatory hiring practices, courts have

often ordered the employers to adopt "affirmative action" plans.

Such plans have usually required both the active recruitment of

minority job applicants, and the setting of goals and timetables

for the hiring and promotion of minorities to positions from which

they had been historically, or were currently,

excluded. In practice, the achievement of an affirmative action

goal in the workplace has sometimes required the hiring of

qualified minorities ahead of qualified whites. And in education,

where segregated schools are often the consequence of segregated

housing patterns, courts have sometimes felt compelled to order

the busing of black and white students in order to achieve racial

integration.

The moral consensus in favor of such compensatory remedies that

existed at the height of the civil rights movement began to break

apart during the mid- 1970s, when many white Americans began to

perceive affirmative action as a threat to the advantages they had

long enjoyed under a discriminatory system that benefited whites.

This backlash took encouragement from President Richard Nixon's

campaign to pass a constitutional amendment prohibiting the busing

of schoolchildren to achieve desegregation. The backlash gained

further steam with Ronald Reagan's election to the Presidency. The

Reagan Administration tried to repeal key sections of the Voting

Rights Act, stopped enforcing civil rights laws and targeted

affirmative action for explicit and intense criticism, falsely

labeling it as a program of "racial quotas" and "reverse

discrimination." Unfortunately, that misguided terminology and the

white resentment it fosters have outlasted the Reagan years,

making the danger of another civil rights rollback increasingly

real.

WILL THE SUPREME COURT ACQUIESCE AGAIN?

In 1989, as it did in the late 19th century, the Supreme Court

once again rendered a series of decisions that seriously eroded

decades of civil rights advancement. For example, the decisions in

two important employment discrimination cases undermined the

availability of judicial relief to victims of job bias: In

Patterson v. McLean Credit Union, the Court ruled that while the

Civil Rights Act of 1866 bars discrimination in hiring, it does

not prohibit racial harassment on the job; and in Wards Cove v.

Atonio, the Court reversed 18 years of legal precedent under the

Civil Rights Act of 1964, when it relieved employers of the burden

of proving that an employment practice that effectively screened

out minorities was a "business necessity." These and other recent

decisions prompted one of the dissenters, Justice Harry Blackmun,

to exclaim: "One wonders whether the majority still believes that

discrimination is a problem in our society, or even remembers that

it ever was." In the past 40 years, the Supreme Court was a leader

in championing the cause of civil rights. Today, the Court is

leading the retreat.

A NEW CIVIL RIGHTS ACT

At this writing, a new Civil Rights Act is before the Congress.

The Act, which is supported by a broad coalition of civil rights,

women's and religious organizations, was conceived to restore the

statutory civil rights protections eliminated by a series of

decisions that the Supreme Court handed down in its 1989 term. It

was first introduced as the "Civil Rights Act of 1990" and was

overwhelmingly passed by Congress in early October of that year.

But President Bush, culminating a lobby campaign during which his

administration repeatedly mischaracterized the legislation as a

"racial quota" bill, vetoed it on October 22, 1990. The current

bill, titled the Civil Rights Act of 1991, awaits Congressional

action.

American society is burdened with a legacy of monumental racial

injustice that began with the largescale destruction of North

America's indigenous peoples, and includes the subjection of an

estimated total of ten million African people to the ravages of

the slave trade and slavery. Since slavery was only yesterday, on

the historical clock, it is no wonder that our nation has

experienced wrenching turmoil from the end of the Civil War up to

the present. More difficulties lie ahead, and many problems remain

to be resolved. But we can take great pride in the fact that we

have made enormous progress, in a relatively short time, towards

ensuring that all Americans enjoy -- equally -- the promise and

protections of the United States Constitution and its Bill of

Rights.