“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”75 —Martin Luther King, Jr.
Something surprising happened in 1950. Two years earlier, President Harry Truman had issued an executive order that abolished racial discrimination in the military,76 but the armed forces were reluctant to fully integrate their personnel. As the Korean War took its toll on predominantly white frontline units, however, the Army was forced to reinforce them with black soldiers. The Army feared that this would lead to racial conflict, but the opposite happened. Race relations in the Army improved. After the war, those soldiers re-entered civilian life with positive experiences having lived, fought, and sacrificed for men of different races. Cracks began to form in the belief that people of different races ought to be separate.77
More people started to remember what others had refused to forget: Frederick Douglass’s, John Bingham’s, and Justice Harlan’s hope for the colorblind Constitution. Making that hope a reality was the aim of the civil rights movement—a mass movement of legal and political advocacy and civil disobedience to guarantee equal rights and equal protection for everyone, regardless of skin color. Lawyers like Thurgood Marshall and Jack Greenberg brought lawsuits to try to persuade the Supreme Court to restore the Reconstruction Amendments, and people like Rosa Parks and the black students who sat at a whites-only lunch counter in Greensboro, North Carolina, disobeyed segregationist laws and bravely faced the unjust consequences. Some, like Medgar Evers and William Lewis Moore, even died for their efforts to ensure that all people are treated equally.
Like abolitionists, civil rights reformers framed their fight in universal terms. Martin Luther King, Jr., said that the “magnificent words” of the Declaration of Independence and the Constitution were for “all men” and “every American.”78 Marshall and Greenberg argued that the law must be colorblind and must not discriminate against “any racial group.”79 Rosa Parks said that her fight was “for human rights for all people.”80 What John Hale had said of the Founders could have been said of them:
They contended for humanity.81
Like Frederick Douglass, leaders of the movement argued that America’s founding principles were good, but the people had fallen short of them. The founding documents, King said, were a promise that everyone would be equally free, but America had “defaulted” on this promise “insofar as her citizens of color are concerned.”82 He was right.
Through the efforts of civil rights reformers, this began to change. It was in the courts that they won their earliest victories. In Pierre v. Louisiana, the Supreme Court held that prosecutors could not exclude black people from a jury,83 and in Morgan v. Virginia, the Court held that states could not segregate vehicles that crossed state lines.84
Reformers’ greatest triumph, however, came in Brown v. Board of Education, in which the Court held that separate schools are “inherently unequal.”85 This was more than a blow against Plessy’s separate-but-equal doctrine. It was a fundamental shift in the way the Supreme Court approached race issues. In Plessy, the Court thought that the right way was to do what experts and popular opinion thought best for the comfort and peace of racial groups, even if that meant denying individuals equal rights; in Brown, the Court returned to the Reconstruction view that the right way to deal with race issues was to guarantee neutral and equal treatment for individuals.
Judicial victories were met with resistance and violence in the South and, to a lesser extent, in the North as well.86 Reformers realized that judicial power was not sufficient to undo segregation, so they took their fight to other fields. They organized sit-ins and other forms of civil disobedience in which they intentionally violated unjust laws. Their self-discipline “touched the white South’s respect for courage” and slowly changed public opinion.87
Progress in changing attitudes was slow, but the movement achieved major legislative victories in the two decades after Brown. Between 1957 and 1968, Congress passed five major civil rights laws that gave the federal government the power to protect the right to vote and outlawed discrimination in public accommodations, public education, housing, and any programs that take federal money.88 Like the Reconstruction Amendments, these laws were written in universal language. They applied to “any person,” “any individual,” and “all citizens.”89 And like the Fifteenth Amendment, they mentioned race and color (and other categories, like sex and religion) not to endorse those divisions, but once again to say that they are not good reasons to treat people differently.
Something surprising had happened in 1950 when the Army integrated its units, and something surprising happened in 1965 after Congress passed the second-to-last of these five civil rights acts. A fault line between two visions for the civil rights movement opened, splitting the movement in two. Violent riots erupted in cities across the country. These were not the riots of white people protesting desegregation, which had terrorized the South after Brown. These were riots by young, mostly black people in the North who were discontented with the peacefulness, self-restraint, and commitment to colorblindness of the “old” civil rights movement.90 They were angry with discrimination, with wealth disparities, with white people, with the leaders of the old civil rights movement, and with Western civilization itself, which they saw as the root cause of all that angered them. One of the leaders of this “black power” movement, Stokely Carmichael, said that their mission was to “smash everything Western civilization has created.”91 They wanted the races to be separate once again, concluding that black Americans should become a “nation within a nation.”92
Leaders of the old civil rights movement, who had earlier observed with concern this new movement, called it a force of “bitterness and hatred.”93 Martin Luther King, Jr., for example, worried that the new movement would undo the good work of the old and lead the country to a “frightening racial nightmare.”94 The old leaders’ experience with separate-but-equal was “longer and more bitter” than that of the young radicals, and they did not want to revisit that experience.95
For a time, the old civil rights movement prevailed. In the years after Brown and the civil rights acts, every state and territory in the Union passed laws guaranteeing equal rights for all people.
Thurgood Marshall and Clarence Thomas
Justice Thurgood Marshall (1908 - 1993) was a civil rights attorney who used the Constitution to roll back many laws and prior judicial decisions that created and upheld segregation. Among other notable cases, he argued one of the cases related to Brown v. Board of Education. Early in his career, he was on the side of the “old” civil rights movement. In his advocacy, he embraced Harlan’s view that the Constitution is colorblind, arguing against using racial classifications to forcibly integrate schools.96
Later in his career, however, Marshall retreated from this position and defended racial classifications and preferences. He claimed that the “principle of color-blindness” does not ban race-based benefits to black people, even if that meant giving race-based detriments to others.97 In short, colorblindness prohibited discrimination against black people but not discrimination in their favor.
At the end of his career, Marshall retreated from the Constitution itself, calling it “defective” and its principles “outdated.”98 In his view, liberty, justice, and equality were not absolute principles. They were malleable goals to be shaped over time by people with the “right ideas” about how to “better them.”99 He believed that experts should use racial classifications to force equal outcomes across racial groups.
Justice Clarence Thomas (b. 1948) has a different view. As a young man, he too was angry with the twin injustices of segregation and condescension. He thought that all of America “was irretrievably tainted by racism.”100 In his anger, he rejected the old civil rights movement and decided that he should fight to destroy “the oppressive machinery of American life.”101
Over time, however, he changed his mind. While at college, other black students wanted to segregate their housing, and Thomas wondered whether “we really want to do to ourselves what whites had been doing to us[.]”102 He also foresaw that other groups would claim the special preferences given to black people, which would create competition, division, and hatred.
Thomas also became concerned that making black people dependent on the government would be “a new kind of enslavement, one which ultimately relied on the generosity—and ever-changing self-interests—of politicians and activists.”103 Worse, this dependence would “prove as diabolical as segregation” because it would replace the values of self-reliance, hard work, and personal dignity “without which [blacks] had no long-term hope of improving their lot.”104 He concluded that although he had “every reason to be outraged by the experience of blacks in America,” he “had no right to confuse their collective sufferings” with his own lot. He was ultimately responsible for himself.
These observations led Thomas to embrace Justice Harlan’s view of the Constitution, concluding that the government must protect people from discrimination but should not try to equalize outcomes across groups. That sort of effort requires the government to treat people differently based on skin color, which “demeans us all.”105
ENDNOTES:
75. Martin Luther King, Jr., I Have a Dream, Aug. 28, 1963.
76. Executive Order 9981, July 26, 1948.
77. Woodward, supra note 55 at 137–38.
78. King, I Have a Dream, supra note 75.
79. Jurisdictional Statement, Anderson v. Martin, 375 U.S. 399 (No. 51) at *11–12.
80. Rosa Parks, Speech at the Million Man March, Oct. 16, 1995.
81. Cong. Globe, 35th Cong., 1st Sess. 344 (1858) (statement of Rep. John P. Hale).
82. King, I Have a Dream, supra note 75.
83. 306 U.S. 354 (1939).
84. 328 U.S. 373 (1946).
85. 347 U.S. 483, 495 (1954).
86. Woodward, supra note 54 at 166–68.
87. Id. at 170–71.
88. Civil Rights Act of 1957, Pub. L. No. 85-315 (1957); Civil Rights Act of 1960, Pub. L. No. 86-449 (1960); Civil Rights Act of 1964, Pub. L. 88-352 (1964); Voting Rights Act of 1965, Pub. L. 89-110 (1965); Civil Rights Act of 1968, Pub. L. 90-284 (1968).
89. See sources cited in id.
90. Woodward, supra note 54 at 215.
91. Quote reprinted in id. at 198.
92. Id. at 196 (quoting Floyd McKissick).
93. Martin Luther King, Jr., Letter from Birmingham Jail, April 16, 1963.
94. Id.
95. Woodward, supra note 55 at 217.
96. Transcript of Oral Argument, Briggs v. Elliott, 342 U.S. 350 (1952) (No. 273), reprinted in ARGUMENT: THE ORAL ARGUMENTS BEFORE THE SUPREME COURT IN BROWN V. BOARD OF EDUCATION OF TOPEKA, 1952–55, at 48 (L. Friedman ed. 1969).
97. Thurgood Marshall, Memorandum to the Conference, April 13, 1978.
98. Thurgood Marshall, The Constitution’s Bicentennial: Commemorating the Wrong Document?, 40 Vanderbilt L. Rev. 1137 (1987).
99. Id.
100. Clarence Thomas, MY GRANDFATHER’S SON 50 (2008).
101. Id. at 48.
102. Id. at 56.
103. Id.
104. Id. at 56–57.
105. Grutter v. Bollinger, 539 U.S. 306, 353 (2003) (Thomas, J., dissenting).
