Friday, September 7, 2007

50th Anniversary of the Civil Rights Act of 1957: (Part 1) Was it a Weak Act?
Gail Heriot

Earlier this week I testfied at the Senate Committee on the Judiciary's "Hearing on the 50th Anniversary of the Civil RIghts Act of 1957 and its Continuing Importance."  Here's a slightly-altered snippet from my testimony:

Many civil rights scholars like to characterize the Civil Rights Act of 1957 as a weak act. And in some respects they are correct. Compared to the ambitious bill that Senator Paul Douglas of Illinois earlier envisioned, the 1957 Act was puny indeed. Senator Douglas hoped that the first civil rights bill passed by Congress since Reconstruction would be a sweeping one–outlawing race discrimination in public accommodations across the county. But it was not to be–not in 1957 anyway. That kind of reform had to wait another seven years. Other members of Congress, like Virginia Rep. Howard Smith would have preferred no bill at all. But he didn’t get his way either. Congress, after a long period of neglect, was finally taking notice of what would become one of the most important legislative issues of the post-war era; Mr. Smith would soon find himself left behind in the march of history.

I prefer to look at the Civil Rights Act of 1957 not as a weak legislative effort but as a vital building block, which may be what Dean Acheson was thinking when he enthusiastically stated, "I don’t think it an exaggeration to say that the bill is among that greatest achievements since the war, and in the field of civil rights, the greatest since the Thirteenth Amendment." In retrospect, Acheson may have been more right than wrong: Without the 1957 Act, there may well have been no Civil Rights Act of 1960, Civil Rights Act of 1964, Voting Rights Act of 1965, Fair Housing Act of 1968 or Education Amendments of 1972. Seen in this light, the 1957 Act does not seem puny at all; it was, rather, Congress’s first step on a long-overdue journey. It is therefore fitting that we should commemorate its passage today.

What did the 1957 Act do? You’ll often hear the 1957 Act referred to as a voting rights act, and that is accurate in the sense that the portions of the Act that affected substantive law did relate to voting. Specifically, the Act prohibited the interference with any individual’s right to vote in a federal election. The prohibition was not limited to interference motivated by race or to interference committed under color of law. It authorized the Department of Justice to bring, and federal courts to hear, actions for injunctive relief to prevent such interference.

But perhaps the most significant step taken by the 1957 Act was not the modification of substantive law, but the creation of two new arms of the federal government dedicated to the protection of civil rights. The first–and the one that I am most familiar with-- was the Commission on Civil Rights.

If the value of a federal agency could be calculated on a per dollar basis, it would not surprise me to find the Commission on Civil Rights to be among the best investments Congress ever made. My back-of-the-envelope calculation is that the Commission now accounts for less than 1/2000th of 1% of the federal budget; back in the late 1950s its size would have been roughly similar. And yet its impact has been dramatic. As then-Senator and Majority Leader Lyndon Johnson put it, the Commission’s task was to "gather facts instead of charges" "[I]t can sift out the truth from the fancies; and it can return with recommendations which will be of assistance to reasonable men." In civil rights, as in any area of public policy, that is an important task.

Soon after the passage of the 1957 Act, the then-six-member bipartisan Commission–consisting of John Hannah, President of Michigan State University, Robert Storey, Dean of the Southern Methodist University Law School, Father Theodore Hesburgh, President of Notre Dame University, John Stewart Battle, former governor of Virginia, Ernest Wilkins, a Department of Labor attorney, and Doyle Carleton, former governor of Florida-- set about to assemble a record.

Their first project was to look for evidence of racial discrimination in voting rights in Montgomery. But they immediately ran into resistance. Circuit Judge George C. Wallace, who went on to greater notoriety as governor, ordered that voter registration records be impounded. "They are not going to get the records," he declared. "And if any agent of the Civil Rights Commission comes down to get them, they will be locked up. ... I repeat, I will jail any Civil Rights Commission agent who attempts to get the records." The hearing nevertheless went forward with no shortage of evidence. Witness after witness testified to inappropriate interference with his or her right to vote. The Commissioners spent the night at Maxwell Air Base, because the city’s hotels were all segregated.

From there, the Commission went on to hold more hearings. The facts gathered in these and other hearings along with the Commission’s recommendations were presented not just to Congress and the President but the American people generally, and they become part of the foundation upon which the Civil Rights Act of 1960, the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968 were built.

The revolution in public opinion that occurred during the late 1950s and early 1960s on issues of civil rights can hardly be overstated.. And although the Commission on Civil Rights was not the only institution that helped bring about that change, it was a significant factor. In 1956, the year before the 1957 Act, less than half of white Americans agreed with the statement, "White students and Negro students should go to the same schools." By 1963, the year before the 1964 Act, that figure had jumped to 62%. In 1956, a healthy majority of white Americans–60%–opposed "separate sections for Negroes on streetcars and buses." By 1963, the number had grown to 79% opposed–an overwhelming majority. Even in the South, minds were being changed. In 1956, only 27% of Southern whites opposed separate sections on public transportation for blacks and whites. By 1963, the number had become a majority of 52%.

The change in views about the desirability of a federal law was even more dramatic. As late as July 1963, only 49% of the total population favored a federal law that would give "all persons, Negro as well as white, the right to be served in public places such as hotels, restaurants, and similar establishments," and 42% opposed. By September of the same year, a majority of 54% was in favor, and 38% opposed. In February of 1964, support had climbed to 61% and opposition had declined to 31%.

The other new arm of the federal government established by the 1957 Act was the Civil Rights Division of the Department of Justice. Technically, the Act established a new Assistant Attorney General, who would be appointed by the President and subject to confirmation by the Senate. But it was understood at the time that this new Assistant Attorney General would preside over a new division dedicated to the enforcement of civil rights law, and just two months after President Dwight Eisenhower signed the ‘57 Act into law, Attorney General Herbert Brownell created the Civil Rights Division.

Would Brown v. Board of Education ever have been successfully implemented without a dedicated group of civil rights attorneys acting on behalf of the United States such as that assembled as a result of the 1957 Act? We will never know for sure, but for me the answer is quite possibly not. Similarly, I am not optimistic that the efforts to enforce the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968 would have received the priority that they did in the absence of the Civil Rights Division.

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Gail Heriot


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Posted by: lucas | Aug 21, 2011 11:38:16 AM