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by Nathan Newman
June 15, 2002
We often hear praise for our Constitution, while bemoaning the quality of the politicians who get elected under it.
If we are to judge the nation's response to Southern apartheid after World War II, the reverse is actually true, as detailed by Robert Caro in his new bestselling biography of Lyndon Johnson's Senate years, Master of the Senate. Many national politicians fought relentlessly and courageously to end segregation, only to see their efforts repeatedly foiled by the clumsy and perverse machinery of our constitutional institutions, particularly the macabre procedures of the Senate.
There is a mythology that the Supreme Court defied majority will to force the desegregation of southern schools. In fact, the Justices were rather late to the barricades of tolerance that other national leaders had been manning for two decades. The Supreme Court did not save the nation from majority will but from the archaic institutions of a Constitution that allowed tiny minorities in the Senate to block desegregation bills for decades.
In the 1930s, large majorities of the Congress wanted laws that would use federal power to prevent the lynchings in the South that enforced segregation and deterred black voting. Beginning in the 1940s, the House of Representatives repeatedly voted for bills to ban the poll tax. In the 1950s, the House would repeatedly pass bills to end segregation in the South.
Presidents Roosevelt, Truman and (to a lesser extent) Eisenhower would all publicly call for civil rights laws and the end of segregation. Outside the legislative realm, Roosevelt's New Deal programs, like the National Youth Administration, designed to create jobs for youth, had leaders who mandated that funds and administrative jobs go to African Americans. Under pressure from black activists led by African-American labor leader A. Phillip Randolph, Roosevelt set up the Fair Employment Practices Committee in 1941 to challenge defense and war contractors who discriminated on the basis of color, race and religion. As northern blacks went to the south to staff factories there, you had whites and blacks eating and sleeping together in hastily constructed barracks often for the first time, an integration that alarmed southern citizens and legislators.
Truman went even further after the war. He advocated not only the end of poll taxes and a permanent peacetime Fair Employment Practices Commission, but also laws to ban racial discrimination in schools, hotels, restaurants and theatres, along with the means to enforce them. Truman would order the integration of the military in 1948 and support a strong civil rights plank for the Democratic Party, an assault on segregation that led the Southern "Dixiecrats" to walk out of the Democratic Convention that year and run their own candidate, Strom Thurmond.
But the problem in the country was Senate power under the Constitution. What was needed was national legislation to overcome Jim Crow in the South, which the segregationist Southern Democrats would not allow, as they killed bill after bill passed in the House.
Conceived as a compromise at the birth of the nation, the Senate was, in the words of Caro, "the child of slavery." In an institution based on seniority, the one-party states of the South, built on the backs of segregation, had produced Senators with longer tenures than any other states of the nation. Almost every major committee in the Senate was chaired by a Southerner or a close ally, so any civil rights legislation proposed could be strangled in the legislative crib. And if any bill made it to the floor, it could be filibustered to death by the segregationist minority of Senators.
What is startling to remember is how really timid was Brown v. Board of Education, the decision that ordered the desegregation of public schools, in the context of what Presidents and the House of Representatives had been supporting for decades.
Instead of a commitment to desegregation at the glacial pace of "all deliberate speed," as the Supreme Court promised, the House of Representatives twice passed a bill in 1956 and 1957 mandating desegregation not only in public schools, but in all parks, hotels, motels, theatres and restaurants. The bill also promised new protections for the right of blacks to vote. The bill passed was powerful, giving both government and private individuals the power to sue to enforce it and authorizing court injunctions for enforcement against individuals and government officials.
The bill was not passed by some narrow majority. It was approved overwhelmingly in the House, 286-126.
And then it died in the Senate in 1956. As Caro details through a fascinating study of the legislative process, only a pale version of the bill would emerge from the Senate in 1957.
It would take another eight years, until the 1965 Civil Rights Act was passed, for the full civil rights protections promised for decades by first President Truman, and then the House of Representatives, to become the law of the land.
The reason recovering this history is important is that too many progressives can only remember the Supreme Court's role in the early fight against segregation, as if only an educated elite institution like the Court could protect justice
But the reason Presidents and the House were battling for civil rights was not accidental. While blacks largely could not vote in the South and, until the Montgomery bus boycott, had not been able to protest on a mass scale, they had been organizing and voting in the North for decades. Black veterans returned home from World War II only to find doors slammed in their face after fighting for democracy. This helped lead to a massive expansion in membership in the NAACP, which, by the end of 1946, had a 1000 branches with a membership of half a million.
Half of African Americans lived in the North and they were making their voices heard. Mayors like Chicago's Richard Daley often won office as challengers against politicians who had failed to meet the demands of new black residents in their cities. On the national level, politicians of both parties realized that elections could be won or lost based on the black vote.
Long before Brown v. Board, it was the power of black organizing, along with that of their allies such as unions, that had radically changed the political landscape in favor of protecting civil rights.
At best, the Supreme Court's timid steps against segregation can be characterized as one elitist institution bypassing the elitist power of another dominated by Southern Senators. As Caro's detailed history makes clear, it was not the Constitution that defeated segregation. In fact, for decades the Constitution's institutions had been defeating the popular will in favor of civil rights.
Progressives sometimes speak as if our basic rights have to be defended against the majority, when it has been vibrant democratic politics that has been the best defender of justice over our history. Remembering that it was the elite politics of the Senate that blocked civil rights against the popular will of the House and Presidency back in the 1940s and 1950s is a good corrective to that occasional failure of democratic will on the left.
Nathan Newman is a labor lawyer and longtime community activist, a National Vice President of the National Lawyers Guild and author of the forthcoming book Net Loss on Internet policy and economic inequality. Email firstname.lastname@example.org or see www.nathannewman.org.