The first hundred years of America’s history were marked too by corruption, patronage, and self-dealing that threatened both prosperity and faith in the institutions. Teddy Roosevelt was pivotal in cleaning up this part of the institutional landscape, especially in reforming the federal civil service, which had long been an epicenter of political patronage. It was a cause that Roosevelt had taken up early in his career, first as a state assemblyman and later as a vocal member of the Civil Service Commission. When he became president several years later, he used his powers to help ensure that federal jobs were assigned according to merit, not political connections. Still, Roosevelt’s three-decade-long effort left many problems unresolved.14
Yes, America’s transition to democracy was not so smooth after all. Even with all the country had going for it, the great experiment was threatened several times. And nothing would challenge the young republic like America’s greatest birth defect—the original sin of slavery and its aftermath. Today, it is easy to forget that slavery was initially presented as a question of the proper balance between the power of the states and that of the federal government. The implications of that argument would stretch almost a hundred years beyond the end of the Civil War to the streets and lunch counters of Alabama.
America’s Second Democratic Opening
Rarely do people think of the civil rights movement as a moment of democratic transition. But it was. Of all the amazing twists and turns of America’s history, none is more remarkable than the degree to which the Constitution came to serve the cause of overcoming the legacy of slavery and legalized segregation. That the descendants of slaves would embrace the Fourteenth Amendment as a means to push for equal rights is testament to the document’s extraordinary ability to channel and facilitate America’s evolution.
In the view of many Founders, this was an improbable outcome. Thomas Jefferson was convinced that black slaves would not live in chains forever. “Nothing is more certainly written in the book of fate than that these people are to be free,” he once wrote. But he was equally certain that whites and freed blacks “cannot live in the same government.” Tocqueville, in viewing the fate of the “three races” that inhabited America in 1835 (the “whites,” “negroes,” and “Indians,” as he put it), saw no way for them to live together in peace. Madison and other Founders so despaired about the future for freed slaves that they endeavored to return them to Africa, supporting the creation of what would become the country of Liberia. Even after the long and arduous struggle to end slavery, it took almost a hundred years, until the civil rights movement of the 1960s, to accomplish what many of the Founders thought impossible—the extension of “We the people” to black Americans.
The journey was a chaotic one. Certainly the Constitution could not help slaves in the antebellum South. Yet a few had audaciously tried, with little success, to appeal to the courts for their freedom. Under the Slave Codes, slaves had no rights because they were considered property, not people. They could not testify in court against a white person, they could not enter into contracts, and they could not defend themselves against the violence of their masters. But in the North and the new states and territories of the West, legal challenges to slavery met with more success.
Although most cases took place at the state level, a few made it all the way to the U.S. Supreme Court. In one such case, none other than John Quincy Adams defended the kidnapped Africans who were being illegally transported from Africa to slavery on the ship Amistad. They had rebelled, killing members of the crew, and Adams won their acquittal in 1841.
A few years later, the Supreme Court heard perhaps its most infamous case. Dred Scott was a slave who had been brought to a free state by his owner and claimed he should therefore be free. Deciding the question of whether the descendants of Africa, free or enslaved, could be considered Americans, a majority of the court said no: “They are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”15 Frederick Douglass, the leading abolitionist, who had escaped from slavery in his youth, denounced the 1857 ruling as the “most scandalous and devilish perversion of the Constitution” he had ever seen, calling it “a brazen misstatement of the facts of history.”16 And yet, he said, “My hopes were never brighter than now.” The decision had been a clear setback in the legal battle for freedom, but in the political realm it had an unintended effect, energizing opponents of slavery and hastening the onset of the Civil War, which would settle the issue once and for all.
The immediate question at the end of the Civil War was broader than even how to treat the emancipated slaves; it was how to treat all citizens of the South—both white and black. It is testament to Abraham Lincoln’s greatness that he immediately, even before the last shots were fired, found a formula for inclusion. The famous phrase “with malice toward none, with charity for all” was not just a line in the Second Inaugural Address. It was how Lincoln saw the task of bringing the country back together. And it stands as a remarkable example of one approach to the horrible question that so many emerging democracies face even today: How do you deal with rebels, insurrectionists, and those who are on the losing side of civil wars?
Lincoln, felled by an assassin just five days after the war ended, would not live to see how his vision for reconciliation would—or would not—play out. With the Union’s victory, the federal government took steps to hold some rebel leaders accountable, but many of those actions were temporary or reversed soon thereafter. Only one military leader of the Confederate army was arrested; the others, including General Robert E. Lee, were allowed to go home. Civilian leaders of the Confederacy did not fare much worse. While several were arrested, not one was ever tried. Jefferson Davis, president of the Confederacy and a graduate of West Point, was imprisoned for a number of months but was eventually released without trial along with the others, and would live out his life as a symbol of pride to the most committed Confederates.
Meanwhile, freed slaves had been promised not only freedom but other forms of assistance as they tried to establish new lives. Part of the plan involved the redistribution of land from former slave owners to newly freed slaves, a policy that would have served both as a form of reparation and as a way to undermine the political power of slaveholding interests. But when Andrew Johnson took office after Lincoln’s assassination, he reversed course. The properties that were to have gone to the freedmen never did, depriving the new black American citizens of their “forty acres and a mule.”
It would nevertheless fall to Andrew Johnson, after considerable political debate in Congress, to grant the right to vote to freed slaves, making them under the Fourteenth and Fifteenth Amendments subject to “equal protection of the laws.” The occupation of the South would usher in the era of Reconstruction, a set of policies intended to rebuild the region and reintegrate it into the Union. Reconstruction is considered by almost every historian to have been a failure. Still, there were some favorable elements: Military governors were sent to enforce the new laws; efforts were made to educate blacks; and freedmen were even seated in state legislatures.
Lincoln was spared the spectacle that would follow, as the South, which he had wanted to return to the fold, ultimately rejected the hand extended to it. Proponents of white supremacy began to regain their footing. The Ku Klux Klan was founded in 1865 by Confederate veterans in Tennessee and soon developed a presence throughout the region.17 Violence and voter intimidation against blacks became commonplace. Republican-controlled state governments that were established during Reconstruction, and were supported by newly enfranchised black voters, were overturned in favor of the Democrats. State by state, the southerners who had fought on behalf of slavery became ascendant once again.
By the time of the presidential election of 1876, Washington was losing its appetite for occupying the South with federal troops. Their withdrawal wa
s accelerated, however, as part of the deal that resolved an election dispute and made Rutherford B. Hayes president despite his losing the popular vote. After several recounts and contentious debate, Hayes secured enough Electoral College votes in the House of Representatives to win. He achieved the necessary margin only by promising to withdraw all Union troops from the South, which he did in the Compromise of 1877. With that, the effort at reconstruction and reconciliation collapsed, and the hated occupation of the South by the North was over.
Out of this dark moment in American history, institutional seeds were sown that would lead to advancement for the descendants of slaves. After the Civil War ended in 1865, the government established an agency called the Freedmen’s Bureau to help former slaves adjust to postwar realities, and the bureau spearheaded the establishment of institutions, including Morehouse College and Howard University in 1868, to help educate the newly freed men (and women). These and other historically black colleges have since educated generation after generation of black Americans, among them some of the most celebrated figures in our national history, including W. E. B. Du Bois, Martin Luther King Jr., and Thurgood Marshall.18
But the Compromise of 1877 left southern lawmakers wide latitude to establish new rules for relations between the races. “Separate but equal” became an Orwellian phrase that defended racial segregation and gave it a legal foundation.
Jim Crow (named for a minstrel show in which white actors wore blackface to impersonate African descendants) would emerge as a violent and painful system of legalized segregation and oppression in the South of my birth. For those of us old enough to have lived through the horror of the Jim Crow period, its gruesome images are indelibly etched in our minds: lynchings and mob violence, burning crosses and hate speech. I never saw the Ku Klux Klan in action, but my parents did. I never saw anyone lynched, but I remember dreaming one night that my father didn’t return home—he had been caught and hanged. That nightmare came shortly after my uncle told me about being pulled over by a Mississippi highway patrolman who told him and my father to have their “black [expletive] gone from this state when I return.”
Sadly, my male relatives experienced many such incidents. My mother’s father ran away from his family because he had beaten a white man who had assaulted his sister. He knew what his fate would be if he stayed around. There were so many martyrs to the cause of gaining equal rights, including my friend Denise McNair and three other little girls killed in a bombing at the Sixteenth Street Baptist Church in Birmingham in September 1963. They had been changing into choir robes in a basement restroom when terrorists detonated more than a dozen sticks of dynamite under the front steps of the church. This horrific attack devastated the community but helped galvanize support for passage of the Civil Rights Act the next year. I was born in 1954. America’s hard times are not that far in the past.
My own personal experience in living under Jim Crow was of a kind of parallel political existence. My family participated in the democratic process as if it mattered, even when, in substance, it didn’t. This inexplicable faith in the rights enshrined in American institutions, shared by countless black families, played a crucial role in finally gaining those rights, because it left open a pathway to change the course of America without resorting to violence.
Using the Constitution to Propel Democratic Change
Democratic transitions do not happen magically; they require people to have a view of a better future and the will to achieve it—and more than that, they require planning and determination. At the forefront of the battle for civil rights in the twentieth century was the NAACP, which used professed American values—hard work, ingenuity, and a belief in equality—to improve American institutions.
Throughout our history there were those black leaders, like Malcolm X of the Nation of Islam, who believed that the constitutional course would never succeed. They sought to overturn the political order by force and violence and equated Martin Luther King Jr.’s doctrine of “nonviolence” with being “defenseless.”
I heard one of those leaders, Stokely Carmichael, speak for the first time in March 1967, when my father, then dean of students at Stillman College in Tuscaloosa, Alabama, invited him to the campus, despite the misgivings of the college administrators and, indeed, the police. As leader of the Student Non-Violent Coordinating Committee (SNCC), Carmichael had made famous the phrase “black power,” which was as stirring for some blacks as it was frightening for some whites. “Reverend, I don’t want to rev up those country boys,” the sheriff told Daddy when he heard about the event. “Nothing will happen,” my father told him, hoping he was right.
When Carmichael came to Stillman, his speech was as fiery as expected. He criticized U.S. foreign policy and the war in Vietnam, recounted the double standards from American history, and called on the four hundred students before him to fight back against the system. “This country has law and order, but it doesn’t know a damn thing about justice,” he said. “If you want to be free, you’ve got to say, ‘To hell with the laws of the United States.’” Carmichael’s rhetoric was of liberation and resistance—not of constitutional change.
Carmichael later left SNCC and became associated with a much more militant group, the Black Panther Party, which acted well beyond rhetoric, with recourse to violence that rocked America even after the great civil rights legislation of the Johnson era. Established in 1966, after Malcolm X’s assassination and the race-fueled Watts riots in Los Angeles, the Black Panthers gained national notoriety when a few dozen armed supporters occupied the California legislature to protest a gun-control bill in 1967. Shortly thereafter the Panthers issued their ten-point platform, which sounded more like a call for revolution than reform. Identifying itself as a Marxist revolutionary group, the party advocated the arming of all black Americans, the release of all blacks from jail, and a blanket exemption from the draft and reparations for years of oppression. In ways both symbolic and real, the Black Panthers embraced militancy and engaged in violence, becoming involved in a number of bloody confrontations with police.
Frankly, they might have gained the upper hand were it not for Martin Luther King Jr. and others like him who used America’s own laws and principles, rather than violence, to create a more equal nation. They summoned America to be what it said it was—using the very words of the Framers in the context of the Constitution that they authored.
The injustice confronted by black Americans in the pre–civil rights era was in many ways akin to the injustices faced by people living in non-democratic regimes around the world. What we have seen in so many of those cases, time and again, is that people will not accept the conditions of tyranny forever. Eventually, even if it takes generations, there comes a point at which they will revolt. Of course, unlike authoritarian regimes, the United States has representative institutions that provide the option of peaceful resistance—through the political process rather than around it. And leaders of the civil rights movement took full advantage of it.
The NAACP led this effort and engaged institutions (chiefly the courts, but also the news media, religious groups, and others) to bring political change. Its success depended on a deliberate strategy, pursued by committed individuals who worked over the course of decades, constantly recalibrating in the face of many setbacks. The people at the NAACP persisted because they knew they were right, and they achieved success because they chose the right path.
There were four constitutional prerequisites for the NAACP’s approach: the Thirteenth, Fourteenth, and Fifteenth Amendments; the independence of the judiciary; judicial supremacy; and the fact of individual rights. The first was the language to which they appealed. The next two meant that there was a chance that judges would act not in the interests of political forces but with a just reading of the Constitution.19 The last made it possible to claim harm in the name of the individual citizen. Nathan Margold, a protégé of Felix Frankfurter, authored a kind of blueprint for the strategy. That effort would become known as the M
argold Report, and it suggested using the courts to move the law forward. Secondarily, the activity in the legal system would “incite the passions of black Americans to fight for their rights.”
Not every case was fought in the South, with landmark decisions, both pro and con, in Missouri and Oklahoma. But the old Confederacy was clearly the epicenter. Thurgood Marshall and the lawyers of the NAACP won some cases and lost some, but they kept refining the strategy, filing new cases, and ultimately moving the civil rights struggle into the consciousness of the country. As the late Jack Greenberg, a young lawyer in the cause, put it in his fascinating autobiographical chronicle of the times, Crusaders in the Courts, “Our job was to exploit favorable decisions and use them to overwhelm the unfavorable ones.”
The legal strategy made incremental progress, but it was aided by the sacrifices of thousands of black Americans in World War II. That animated President Harry Truman’s interest in civil rights. Truman is well known for having integrated the armed forces, recognizing the moral absurdity of returning these men to a country steeped in inequality. He is less well known for having created a Committee on Civil Rights, which issued a landmark report in 1947, To Secure These Rights, and set forth a program to overcome injustice and lay the groundwork for the great civil rights legislation passed almost two decades later.
Those fights—in the courts and in the streets, with demonstrations, marches, setbacks, and advances, and too many martyrs to the cause—finally gave meaning to the Fourteenth Amendment through landmark civil rights legislation. The passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 can, I believe, be said to be America’s second founding.
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