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1.6: Civil Rights

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    204107
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    “We hold these truths to be self-evident, that all men are created equal....” So begins the second paragraph of the Declaration of Independence. Thomas Jefferson included a version of this statement in his initial draft of the Declaration, but it was Benjamin Franklin’s idea to add the term self-evident. The implication was a bold one: not only was the equality of men a truth, it was a truth so obvious and indisputable that no further explanation or justification was needed to prove it.

    Photograph of the Martin Luther King, Jr. Memorial in Washington, D.C.
    The Martin Luther King, Jr. Memorial, situated south of the National Mall in Washington, D.C., has honored the civil rights leader since 2011.

    Nearly two-and-a-half centuries hence, it’s clear that this ambitious claim was aspirational at best and hollow at worst. The Constitution ensured that America’s government would recognize no royal blood or noble titles, but it also allowed slavery to persist for almost a hundred years after independence and racial discrimination even longer. Declaring equality for all men rather than for all persons also grates on modern ears. Even if one charitably interprets men in the classical sense as referring to both sexes, the Constitution provided no practical protection for the rights of women, who were barred from voting in most states at the time of ratification and treated as inferior to men in many other legal domains.

    America’s struggle to live up to its egalitarian promise is represented in its civil rights history. A civil right is a protection from discrimination or unequal treatment. Civil rights limit the abilities of both public and private institutions to treat persons differently on the basis of demographic traits. The nature and extent of these limitations vary depending on the traits and contexts in question.

    Though the terms liberties and rights are interchangeable, civil liberties and civil rights are distinct categories of rights. To oversimplify: when you see or hear civil liberties, think “freedom,” and when you see or hear civil rights, think “equality.”

    Throughout its history, America has changed its perspective on the meaning of equality, both as a governmental structure (with legal reforms) and as a people (with shifts in public opinion). These two types of change have mutually reinforced one another: societal pressures have played a key role in securing new civil rights protections, which in turn have normalized equalities between groups that were far less “self-evident” before they were enshrined in law. How far we have yet to go in the pursuit of equality, and how best to go about getting there, continue to be matters of heated debate in the United States.

    Race

    Beginning with the arrival of the first slave ship in Virginia in 1619, approximately ten million people of African descent were brought to or born in America as slaves, forced to labor under excruciating circumstances, brutally mistreated, and denied virtually all political and legal rights. Slavery divided the country at the time of the Constitutional Convention: several northern states had enacted policies to abolish or gradually phase out slavery, while agriculturally dependent southern states practiced it with alacrity. Roughly half of the delegates who gathered in Philadelphia in 1787 to draft a new constitution — including some of those who spoke most vociferously against slavery during the convention — either were or had been slaveowners.

    The Constitution failed to settle the issue of slavery, and for several decades the new nation maintained an uneasy truce between “free” states and “slave” states. During the first half of the 19th century, new states were admitted to the Union in pairs — one free, one slave — to preserve a balance of power between the two factions, and dual federalism mostly left slavery up to the states to decide for themselves. Neither trend proved sustainable: with California’s admission in 1850, free states began to outnumber slave states, at the same time that the Fugitive Slave Act and the Supreme Court’s decision in Dred Scott v. Sandford were encroaching on free states’ ability to exclude the practice of slavery from their territory.

    It took four bloody years of fighting and a victory for the Union (the North) over the Confederacy (the South) in the Civil War to generate enough political momentum to end slavery. In the aftermath, Congress passed and the states ratified three constitutional amendments: the Thirteenth (abolishing slavery and involuntary servitude, except as punishment for crimes), the Fourteenth (establishing equal protection under the law for all citizens), and the Fifteenth (preventing the denial of suffrage — the right to vote — on the basis of race).

    Although these three amendments made whites and blacks equal according to the letter of the law, that equality was not immediately realized. Southern states, which had supported slavery and joined the Confederacy during the Civil War, were reluctant to upend the racial hierarchy that privileged whites at the expense of blacks in the South. However, they could no longer pass laws which openly discriminated on the basis of race, because such blatantly unconstitutional laws would be struck down by the Supreme Court.

    To get around these new restrictions, Southern states passed various Jim Crow laws to preserve the race-based social order of whites over blacks. For example, instead of directly barring blacks from voting, some states imposed a literacy test, requiring citizens to prove they could read before they were allowed to vote. (See Figure 6.1 below for sample questions from one such test.) To prevent literacy tests from disenfranchising illiterate whites, states also included a grandfather clause allowing citizens to skip the test if their ancestors had the right to vote prior to a certain date. This date varied from state to state, but it was always before, during, or just after the Civil War, when whites could vote but blacks could not. Thus, the combination of literacy tests and grandfather clauses was therefore able to prevent many blacks from voting, even though neither policy directly referenced race.

    Sample questions from a 1963 Louisiana literacy test, according to the Civil Rights Movement Archive
    Figure 6.1: Sample questions from a 1963 Louisiana literacy test, with typos as they appeared in the original document (Source: Civil Rights Movement Archive)

    Literacy tests and grandfather clauses illustrate an important truth: the effect of a law depends not just on what it says but also the context in which it is enforced. To someone unfamiliar with American history, these laws would seem completely unrelated to race — yet, combined with the racial inequality in the United States at the time, they proved to be powerful tools of discrimination and suppression. The “letter of the law” rarely tells the whole story of what impacts a law will have once enacted.

    In addition to denying blacks political power by suppressing their right to vote, Jim Crow laws were used to enforce segregation, dividing blacks and whites into separate schools, hospitals, restrooms, and other facilities. The 1896 Supreme Court case Plessy v. Ferguson (which concerned a mixed-race shoemaker who refused to leave a whites-only railroad car) upheld the constitutionality of segregation provided the facilities were “separate but equal.” In practice, the separate but equal doctrine was a farce: public accommodations for blacks were often underfunded and poorly maintained compared to those for whites. Half a century later, the Supreme Court overturned Plessy in its 1954 decision Brown v. Board of Education of Topeka. Brown declared racial segregation unconstitutional in schools, and 1964’s Heart of Atlanta Motel, Inc. v. United States extended this logic to ban racial segregation in all public accommodations.

    Social movements played a vital role in the struggle for racial equality. Boycotts, acts of civil disobedience, and nonviolent demonstrations organized by Martin Luther King, Jr. and other civil rights leaders brought national attention to discriminatory state and local laws and put pressure on Congress to step in. This pressure ultimately resulted in three major pieces of legislation — the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act — which together formed a strong foundation for national government involvement in the protection of rights for citizens of all races.

    Sex

    The postwar amendments targeted racial inequalities but dodged the question of equality between the sexes. Parts of the Fourteenth Amendment applied only to “male citizens,” and the Fifteenth Amendment prohibited disenfranchisement on the basis of race but not on the basis of sex. However, a parallel civil rights movement to extend rights to women had already been percolating since before the Civil War. The first women’s rights convention, held in Seneca Falls, New York, in 1848, produced a list of political goals (including the right to vote) and laid the groundwork for future conventions and organizations (such as the National American Woman Suffrage Association) in pursuit of those goals.

    Whereas the Fifteenth Amendment struck down racial restrictions on voting in one fell swoop, the movement for women’s suffrage began more gradually as a state-by-state campaign. Wyoming became the first state to allow women to vote when it joined the Union in 1890, its territorial legislature having already passed a law granting women suffrage in 1869. Other states, predominantly western ones, followed suit. By the time the Nineteenth Amendment made women’s voting rights a nationwide standard in 1920, women had already won full suffrage in 18 states and partial suffrage in 22 others.

    Photograph of the cover of the program for the 1913 Women's Suffrage Procession
    The cover of the program for the 1913 Women’s Suffrage Procession depicts women advancing on the U.S. Capitol to press their case for voting rights.

    After the ratification of the Nineteenth Amendment, the women’s rights movement in the United States lost some of its cohesiveness as its constituent groups pursued different policy agendas. It regained its strength in the 1960s and converged with the movement for racial equality to push for the Civil Rights Act, which forbade employment discrimination on the basis of sex as well as race. Eight years later, Congress enacted Title IX, which prohibited sex discrimination in educational institutions receiving federal aid. Title IX continues to influence many aspects of education today, from the balance of men’s and women’s college sports to the handling of accusations of sexual harassment on campus.

    Though the movements for racial and sexual equality in the United States share many similarities, the two have not always been allied. Some anti-slavery organizations excluded women from their activities, and some women’s rights organizations did the same to blacks. Certain women’s rights groups also opposed the Fourteenth and Fifteenth amendments on the basis that they did not extend to women, whom they considered more deserving of the rights in question than blacks were.

    In the same year Title IX was enacted, Congress also passed the Equal Rights Amendment, designed as a comprehensive statement of sexual equality that would have eliminated virtually all legal distinctions between men and women. As a proposed constitutional amendment, the ERA required ratification by three-fourths of the states. Opponents of the ERA (including many women) argued that it would end certain legal protections enjoyed by women, such as their exemption from being drafted into the military and their advantage in child custody hearings. This counter-mobilization was successful: when the deadline to ratify the ERA arrived in 1982, only 35 of the required 38 states had ratified it, and three of those had already rescinded their ratifications.

    A particularly controversial area of women’s rights — one that is sometimes classified as a civil liberties issue and other times as a civil rights issue — concerns sexual activity. In the 1965 case Griswold v. Connecticut, the Supreme Court struck down a Connecticut law banning contraceptives on the basis that the Constitution contains a right to privacy, which protects intimate personal activities — including the decision to use birth control — from excessive government intrusion. The court could not identify an explicit statement of a right to privacy in the Constitution; instead, it ruled that such a right could be inferred from parts of the First, Third, Fourth, Ninth, and Fourteenth amendments.

    The right to privacy was again invoked eight years later in 1973, when the Supreme Court heard the landmark case Roe v. Wade, involving a woman who had been unable to obtain an abortion in Texas and was challenging the state’s abortion ban. The court ruled that the right to an abortion was a fundamental component of the right to privacy and declared abortion bans unconstitutional. This was a major turning point in the decades-long debate between “pro-life” advocates who argued that the life of an unborn child outweighed the freedom of a woman to make her own reproductive decisions and “pro-choice” advocates who argued the opposite. In 2022, the court determined in Dobbs v. Jackson Women’s Health Organization that Roe was wrongly decided, overturning it and sending control of abortion policy back to the states.

    Sexual Orientation

    The movement for civil rights pertaining to sexual orientation in the United States rose to prominence beginning in the 1960s. Romantic relationships between people of the same sex existed in America before this time but were often concealed for fear of legal and societal condemnation. With the ’60s came a new, more critical perspective on traditional morality, particularly as it applied to sexual activity. Lesbian, gay, bisexual, and transgender Americans who had previously kept their identities and relationships secret began to not just admit but celebrate them openly in defiance of those who disapproved of their lifestyles.

    As with other civil rights movements, the LGBT rights movement made federal litigation a key element of its strategy. The 1986 Supreme Court case Bowers v. Hardwick upheld a Georgia anti-sodomy law that criminalized homosexual sex (among other sexual activities). Seventeen years later, the court reversed itself in the 2013 case Lawrence v. Texas, citing the right to privacy as a reason for striking down all state laws forbidding same-sex sexual activity.

    Following the Supreme Court’s decision in Lawrence v. Texas, Massachusetts became the first state to legalize same-sex marriage in 2004. Some states followed Massachusetts’s lead; others legalized “civil unions” between same-sex couples which were similar to but not technically marriages; still others passed constitutional amendments defining marriage as a relationship between one man and one woman. This patchwork of marriage laws was ultimately made uniform in 2015, when the Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment guaranteed same-sex couples the same right to marry as opposite-sex couples. Five years later, the court declared in 2020’s Bostock v. Clayton County that the 1964 Civil Rights Act protects employees from discrimination on the basis of their sexual orientation or transgender status.

    At the same time as American laws have changed to be less hostile and more open to same-sex relationships, Americans themselves have become more accepting of them (as demonstrated in Figure 6.2 below). This shift in public opinion has been both a cause and an effect of legal change: as public support for previously frowned-upon lifestyles increases, so does the pressure on political actors to change laws, which in turn serves to normalize the newly legal activities in the minds of the public. For a sense of how rapidly this change occurred in the United States, consider that Barack Obama campaigned for president in 2008 as a Democrat while opposing same-sex marriage (though at the time he described his views on the issue as “evolving”). Obama was succeeded in office by Donald Trump, a Republican who ran for president in 2016 while supporting same-sex marriage and who even held up a rainbow pride flag at one of his campaign events.

    Line chart showing the percentage of Americans supporting same-sex marriage before and after Obergefell v. Hodges, from 1996 to 2022, according to Gallup
    Figure 6.2: Percentage of Americans supporting same-sex marriage before and after Obergefell v. Hodges, 1996–2022 (Source: Gallup)

    Modern Civil Rights Challenges

    Though its laws have changed dramatically over time, America’s long struggles with issues of civil rights are not over. Inequalities persist in various aspects of American society, despite laws and constitutional amendments testifying to the legal equality enjoyed by members of different demographic groups. Many of these inequalities are systemic in nature, so ingrained in American institutions and society that they cannot be simply or easily nullified by passing a law.

    A particularly salient example of systemic inequality concerns race and criminal justice. In the United States today, blacks experience (on average) worse outcomes than whites at almost every stage of the criminal justice process, including being more frequently stopped and questioned by police. Disproportionate police stops could arise from deliberately racist policing strategies, but they could also result from the fact that many high-crime areas of cities — where police are particularly likely to patrol — have predominantly black populations. This latter explanation, if true, does not mean that racism is not at fault: centuries of slavery and racial discrimination in the United States have left blacks poorer than whites in general, and poorer areas of cities also tend to have higher crime rates. What it does mean, rather, is that eliminating racial imbalances in the criminal justice system would require something more than just identifying and removing individual racist cops and judges.

    Another frequently discussed systemic inequality is the fact that the average working man earns a higher wage than the average working woman. This disparity could reflect the biased hiring and promoting of men over women, but it could also reflect the fact that women in the workforce tend to choose lower-paying career fields than men do. (When different career fields are taken into account, the wage gap between men and women is much smaller.) This tendency could itself be a consequence of sexist societal perceptions of what constitutes “women’s work” that affects the types of careers young boys and girls aspire to. If sexism influences the wage gap in this way, how to undo its influence is by no means straightforward: societal perceptions are far more difficult to change than individual sexist bosses or job recruiters are to remove or punish.

    One strategy for reducing inequality is affirmative action, the preferential treatment of members of underrepresented groups to compensate for past discrimination. The American government began using race- and sex-based affirmative action in the 1960s to diversity its employees and contractors, and the practice was later adopted by many private companies and both public and private colleges. Some praise affirmative action for “leveling the playing field” by mitigating systemic inequalities in employment and education; others consider it “reverse discrimination” that merely perpetuates unequal treatment on the basis of race, sex, or other demographic criteria. In 2023, the Supreme Court ruled in two cases (Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina) that race-based affirmative action in college admissions is unconstitutional.

    Civil rights disputes often involve one person’s or group’s rights conflicting with another’s. One such clash of rights was apparent in the 2018 Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a Christian baker refusing to bake a wedding cake for a gay couple. The couple claimed the baker’s refusal was discriminatory and violated their civil rights; the baker claimed requiring him to bake a cake for a ceremony that contradicted his beliefs violated his freedoms of religion and speech. (The court issued a narrow ruling in favor of the baker and broadened that ruling five years later in 303 Creative v. Elenis to cover other creative professions as well.) Another impasse has emerged in the realm of high school athletics over whether transgender athletes who identify as women should be allowed to compete in women’s sports. Some argue that barring transgender women from women’s sports discriminates against them, whereas others contend that allowing transgender athletes to compete with the unfair advantage of male physiology discriminates against women who are not transgender.

    Debates over competing rights often produce some of the most emotionally charged political arguments in America today. Even the language is politicized: the word right implies absoluteness and inviolability, which is one reason why it is used so often by policy advocates. (Consider the policy battles over abortion between those championing “the right to life” and those promoting “reproductive rights.”) But no right is truly absolute or inviolable, and expanding any particular right means curtailing the ability of other rights to prevail against it. Determining just how far each right should extend in relation to other rights is much easier said than done.

    The Promise of Equality

    In the United States, consumers are protected by law from companies which engage in “false advertising” by making untrue or exaggerated claims about their products. If a product is packaged or sold in such a way as to give buyers false expectations about its functionality or quality, a court may force the company to compensate the buyers for having misled them.

    At various points in America’s existence, its users would have had a compelling argument that their machine was falsely advertised. (Whether now is one of those times is a matter of much debate.) As nobly and high-mindedly as the Declaration of Independence and the Constitution described the ideals they were intended to pursue, reality often fell short of expectations, far more for some users than others. Liberty and democracy without equality hardly deserve to be called by their names, though it has often taken Americans longer to understand this than we would like to admit.

    Some of the civil rights issues America deals with today have been around in one form or another since before the country itself existed, while others have emerged only recently. America’s working definition of equality has changed over time, and there is every reason to expect it will again in the future, in ways we would struggle to imagine (let alone condone) today. While we can be justifiably proud of how far the United States has come in some domains of civil rights, we must take care not to become too haughty. A hundred years from now, Americans may consider our present-day beliefs about equality and rights as antiquated and shortsighted as we today consider those of Americans a hundred years ago.


    This page titled 1.6: Civil Rights is shared under a CC BY-NC 4.0 license and was authored, remixed, and/or curated by Benjamin R. Kantack (Tekakwitha Press) via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.

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