As Trent Lott recently demonstrated, civil rights remains the unfinished business of America. The nation’s historic march toward equality is not completed.
Indeed, over the past two years, civil rights progress has faltered. With the American people understandably focused on the threat of terrorism, the Bush administration has quietly engineered a pattern of civil rights policy reversals through low-visibility regulations, litigation activity, and funding decisions. Meanwhile, the war on terrorism itself threatens the principle of equal protection.
It is unsurprising that civil rights remains a present day challenge, because government-sanctioned discrimination was pervasive in the United States until relatively recent times:
Only 150 years ago, human beings from Africa were sold and possessed as chattel in half of the country;
Only 100 years ago, Mexican Americans and Puerto Ricans were regarded as “conquered peoples” and were frequently denied property, voting, education, and employment rights;
Only 90 years ago, women were denied the right to vote or own property in many regions of the country;
Only 80 years ago, Native Americans whose ancestors had inhabited this land for 50,000 years were still denied citizenship in the United States;
Only 70 years ago, job advertisements in Boston and other northeastern cities routinely declared: “No Irish Need Apply”;
Only 60 years ago, thousands of loyal Japanese-Americans were rounded up from their homes and businesses and held in relocation camps throughout World War II;
Only 50 years ago, schools, restaurants, public bathrooms, and even drinking fountains were strictly segregated through much of the South;
Only 15 years ago, it was legal in most states to fire an otherwise qualified employee solely because he became sick or disabled.
Significant progress has been made to address these injustices. Following the Civil War, Congress passed and the states ratified amendments to the Constitution entitling all Americans equal protection of the laws and the privileges and immunities of citizenship. That promise went unfulfilled for many years, but in 1954, the Supreme Court renewed the promise by striking down school segregation laws in Brown v. Board of Education . In the 1960s, a series of landmark federal laws was enacted to make real the constitutional commitment of equal protection. The Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968, the Education Amendments of 1972, the Americans with Disabilities Act of 1990, and other important federal laws outlaw discrimination and provide recourse when it occurs.
Despite these laws and despite all the progress that has been made, discrimination remains a stubborn feature of American life. Laws mandating school segregation are gone, but segregation persists in practice. No federal law prevents companies from refusing to hire an individual because of his or her sexual orientation. Unwarranted racial and ethnic disparities pervade the criminal justice system. Organized lynching is history, but the hate crimes committed against James Byrd and Matthew Shepard are current events.
And old attitudes die hard. Just recently, the former majority leader of the U.S. Senate declared on national television that if Strom Thurmond had been elected President in 1948, when he ran as the head of the pro-segregation Dixiecrat Party, the country “wouldn’t have had all these problems over the years.”
So while much has been accomplished to remove the stains of slavery and eradicate the legacy of Jim Crow laws and all the other laws and practices that relegated women and minorities to second-class citizenship, much remains to be done. This is not yet the nation that Dr. Martin Luther King dreamt of, a nation in which children are judged “not by the color of their skin but by the content of their character.”
Civil rights progress in the last half century has been fueled by a bipartisan national consensus on the need to remedy past and present discrimination through the establishment of strong federal protections. To be sure, that bipartisan consensus was not as strong at the outset of the civil rights movement as it became later. In the early 1960s, Southern Democratic senators and some like-minded Republicans launched lengthy filibusters against civil rights bills. But bipartisan majorities eventually silenced those voices of resistance. Later, the Voting Rights Act Extension of 1982 and the Americans with Disabilities Act were enacted with overwhelming bipartisan support.
Opponents of the 1964 Civil Rights Act rallied under a banner of “states’ rights.” But the Republicans and Democrats who joined together to pass that law recognized that “states’ rights” was a code phrase for racial segregation. There is indeed a legitimate role for states as sovereign bodies and policy laboratories in our system of federalism, but when it comes to discrimination there is no room for experimentation. Residents of Mississippi or South Carolina are entitled to the same fundamental civil rights as residents of Maine or Wisconsin. The federal government - that is, Congress, the federal courts and, if necessary, federal marshals dispatched by the President of the United States - stands as the ultimate guarantor of federal constitutional and statutory rights.
Today, the national bipartisan consensus in favor of a federal role in protecting fundamental civil rights is beginning to fray. President Bush and many of his appointees and congressional allies subscribe to a radical view of the Constitution in which states’ rights are paramount. They are deeply suspicious of federal activities beyond national defense; transparently, the administration’s tax policies are designed to starve the federal government of resources to fund domestic programs. Meanwhile, the White House has sought to pack the federal appellate courts with right-wing ideologues. Many of these nominees have advocated previously far-fetched constitutional doctrines that would immunize states from federal lawsuits and invalidate assertions of congressional power to protect rights.
These right-wing policies and constitutional theories undermine the foundation on which federal civil rights protections stand. If Congress lacks the authority to remedy discrimination, if states cannot be sued in federal court when they discriminate, and if federal agencies do not vigorously enforce the landmark laws of the 1960s, then civil rights lack the federal guarantee promised in the 14th and 15th Amendments. Suddenly the right of an American to be free from public or private discrimination may vary as he or she travels across a state border.
The current advocates of states’ rights, unlike their Jim Crow-era predecessors, do not deliberately utilize racial code words to mask racist intent. Nevertheless, their cramped conception of the federal government’s role in our constitutional scheme is at odds with the civil rights movement of the past fifty years, a movement that conservative columnist Charles Krauthammer has rightly called “the most important political phenomenon of the past half-century of American history.”1
Our nation’s bipartisan civil rights consensus faced a challenge early in the new administration when President Bush nominated defeated Missouri senator John Ashcroft to serve as his attorney general. Throughout his public career, Ashcroft had demonstrated extraordinary insensitivity towards civil rights. As Attorney General and governor of his state, he resisted court-ordered integration of the public schools. As a senator, he twisted facts and used veiled racial appeals to defeat federal judicial nominee Ronnie White, the first African-American to sit on the Missouri Supreme Court. Ashcroft was narrowly confirmed, but only after many Senators explained that his undistinguished record on civil rights made him ill-suited to head the agency with primary responsibility for civil rights policy and enforcement.
President Bush’s appointments to sub-Cabinet agencies responsible for civil rights enforcement consisted mostly of individuals who lacked experience enforcing civil rights laws, including his appointment of Ralph J. Boyd, Jr. to head the flagship Civil Rights Division at the Justice Department. Assistant Attorney General Boyd is responsible for numerous decisions reversing long-standing litigation positions taken by the Civil Rights Division that have resulted in the erosion of civil rights protections for women, minorities, individuals with disabilities, and many others. In addition, he has acted to remove career staff from positions of influence and replaced them either with right-wing political appointees or by less experienced career lawyers.2
The bipartisan civil rights consensus also has unraveled in Congress. There are a number of long-pending civil rights measures that represent a natural progression from the landmark laws of the 1960s: the Employment Non-Discrimination Act would extend workplace anti-bias protections to gays and lesbians; the End Racial Profiling Act would provide remedies for discriminatory policing; the Local Law Enforcement Enhancement Act would bolster federal authority to prosecute hate crimes. While no movement is afoot to repeal civil rights laws already on the books, President Bush and his congressional allies have refused to support these next-generation protections.
Meanwhile, the country finds itself in a war against global terrorism. It is ironic that the states’ rights movement should achieve its ascendancy at a moment in history when overseas forces have targeted American values and interests. The terrorists who killed almost 3,000 Americans with hijacked planes on September 11 had no particular quarrel with the sovereign states of New York, Virginia, or Pennsylvania; they launched an assault on the United States of America. Yet the government’s response to that assault itself challenges American values, including the value of equal rights.
Naturally, the public’s perception of the Bush administration has been shaped by national security concerns. The possibility of another terrorist attack and imminent hostilities with Iraq has combined to shift the public’s attention away from domestic matters, including civil rights enforcement. During this time, the Bush administration has undertaken a series of low-visibility actions through regulation, litigation, and budgetary policy that illustrate a pattern of hostility toward core civil rights values and signal a diminished commitment to the ideal of non-discrimination.
This report catalogues some of the ways in which the administration is systematically impeding civil rights progress. While each of these actions by the Bush administration may have received some attention by the media, the trend has not garnered sufficient public attention, both because national security dominates the headlines and because regulation, litigation, and funding often make only a faint impression on the public consciousness.
But attention must be paid: this nation was founded on the principle of equal rights. That promise was ignored for far too long, and we have come too far in the last half-century to tolerate backsliding toward policies that even Senator Lott now acknowledges were wicked and immoral. At a time when the United States is aggressively promoting the ideals of democracy and protection of civil and human rights throughout the world, it is imperative that we remain a shining example of a society that fully protects those rights.
For defenders of civil rights, this is a perilous time. Leading advocates in the new states’ rights movement now control or dominate all three branches of the federal government. They are prepared to move forward toward their extremist goals, even though those goals cannot be reconciled with the bipartisan civil rights consensus of the past fifty years.