SCOTUS and Progressives: The Civil Rights Act of 1875

The Civil Rights Act of 1875: Signed by President Grant (whose reputation is thankfully receiving a positive revision based on his admirable record of trying to continue Reconstruction policies aiding freed slaves), this legislation stated that "all persons regardless of race or color . . . shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement." In its original form, schools were also included, but taken out at the last moment. At the same time, that this legislation was proposed and enacted is impressive, in good part because its provisions challenged racism in the North, not just the legacies of slavery in the South.

Although enacted, the Civil Rights Act of 1875's enforcement was weak at best. That is, until it reached the Supreme Court in 1883 in a series of cases dubbed the "Civil Rights Cases." This suite of suits eventually came down to an 8-1 vote which overturned the Civil Rights Act of 1875. The basis for it being declared unconstitutional was the Act's scope, which applied not only to state government actions, but those of private actors. Writing for the majority, Justice Joseph Bradley wrote that, "the wrongful act of an individuals . . . is simply a private wrong."

The overturning of the Civil Rights Act of 1875 helped facilitate the creation of Jim Crow policies in the Southern states by allowing for segregationist policies to be created in the private sphere. Furthermore, the Civil Rights Act of 1875 was the last federal civil rights legislation passed until the Civil Rights Act of 1957. While the great triumph of the Civil Rights Act of 1964 contained numerous sections expanding far beyond the 1875 law (such as sections on employment and the inclusion of women), if one examines the language on access to accommodations, the victory of 1964 essentially restored what was achieved almost a century prior.

To be blunt, the Court's ruling in this case was an important piece of thrusting back the fight for legal equality for all citizens by almost one hundred years.

Is Rand Paul an NAACP Member?

I don't have anything particularly original to say about the Rand Paul/Civil Rights debate, but one thought has crossed my mind. A number of folks have written about Rand Paul as fitting into the Barry Goldwater conservative mold, including in his reasons for showing, hesitation, about the Civil Rights Act of 1964. Rand's defenders do this in good part to disprove accusations that he is racist. To which I would ask: what has Rand Paul done to fight racism?

Here's the issue: to oppose federal actions/regulations to combat racism and claim that one opposes racism, it's important to show that you can show that people will take private initiatives to combat this societal cancer. While Barry Goldwater's record is by no means perfect on that, his background indicated that the idea of private action was not just a theoretical counterargument. Goldwater was a member of the Phoenix chapter of the NAACP, and not just a passive dues payer; he actively worked for desegregation, overseeing the process in his family's department stores, as well as while serving as chief of staff of the Arizona Air National Guard.

Were such efforts enough? Of course not, but it at least suggested that the libertarian critique against civil rights legislation emerged from real ideological differences, rather than as a cover for ultimately racist views. I would say that modern "Goldwater" Republicans would do well to heed that lesson if they want to be taken seriously, but we're sadly long passed the point where people care about being taken "seriously." Well, except in the DC "serious way" which means moderately liberal social values, along with a pro-bombing and entitlement cutting agenda elsewhere. Yargh.

Count your blemishes you can't they're all gone

There's a small cottage industry among conservatives of placing much of the culpability for societal and government enforced racism in U.S. history on the shoulders of the American left. The latest is Daniel Flynn's article, "America's Racist Left" in The National Review which argues that racism "stains the history of homegrown radicals just as it stains the history of the nation which those radicals sought to change so radically." While it would be easy to just scoff at such an assertion, Flynn has some important points to make. However, by ignoring the role of the American left's role in combating racism, Flynn presents a history that is both overly static and highly selective.

First of all, let's give Flynn's assertions credit where it is due. Racism is an American problem that has seeped into almost all American political ideologies, including the left in the U.S. Nor has this been an accident or an oddity in left-wing thought, but rather an important strand (although one that has diminished with time). For example, Flynn is right to point to the anti-abolition views of antebellum American leftists; this was an issue for example among the labor movement of the time. Important labor leaders and allies such as New York politician Michael Walsh held to the view that calls for abolition represented one more method that the ruling class used to suppress the common (read white) folk. As Michael McGerr, Gwndolyn Mink and other scholars have discussed, the Progressive Movement of the late nineteenth century were by no means allies of struggling African-Americans and many Southern Progressives tacitly and even vehemently supported segregation (see George Packer's wonderful memoir Blood of the Liberals for more on this specific topic).

That said, Flynn picks his representatives of the various stages of the American left carefully to avoid dealing with some of the more heartening spots of the white American left's history. Take Flynn's history of the Communist Party in the United States. He cites the party's support of "separatism" as evidence of white on black racism, yet this position arose from a national liberation strain of thought, making it a stretch to label it as "racist." Noticeably absent is a mention of the Communist Party as one of the first white civil society organizations that fully integrated itself or more importantly the history of the Party combating racism actively (remember the Scottsboro Boys?) Don't like the Communists? Well, how about the Socialists? Perhaps one of the most important figures in the black freedom movement before Martin Luther King, Jr. was A. Philip Randolph (whose idea the March on Washington was). Randolph was an African-American, a union organizer, and a socialist.

Flynn's post-war history is also somewhat absurd. While conservatives like to harp on the racism of the Democratic Party this is always based on ignoring the virtual civil war within the party between (mostly) Southern reactionaries and the progressive parts of the party. One should remind Flynn of the words of former House majority leader and far-left Congressman Newt Gingrich who noted that "it was the liberal wing of the Democratic Party that ended segregation." Looking to the left social movements of the 1960s Flynn seems to think he has a "gotchya" moment in pointing to the lack of black "officers" in Students for a Democratic Society. Except that SDS was intended, in part, as a counterpoint to the already existing Student Non-Violent Coordinating Committee (SNCC) which was of course majority African-American. References to SDS of course also beg the question of how many black officers there were in its conservative equivalent, Young Americans for Freedom?

Furthermore, there is the issue of Flynn's attitude which assumes that the left is unwilling to criticize its own on such issues. Of course, any good lefty knows that a core aspect of being on this side of the divide is loving to criticize others. "Moderates" attack radicals, radicals attack moderates, radicals call other radicals too moderate, and so forth. On the issue of American communism and race, Flynn's views were echoed, among other places, in one of the great pieces of American literature Richard Wright's Native Son which holds a skeptical view of the intentions of American communists. McGerr and Mink's books are also highly critical of the white left for its positions and actions regarding race relations. In fact, this was all a core undercurrent of the whole new social history movement of the 1970s and 1980s. History is fluid and one of the chief roles many left-wing academics see themselves in is keeping their activist sisters and brothers honest about the past. But you wouldn't know that reading Professor Flynn's piece.