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This year, we note the anniversaries of two benchmarks in civil rights law: Brown v. Board of Education, decided 50 years ago, and the Civil Rights Act of 1964, which became law 40 years ago. The first event, the school segregation decision that struck down the “separate but equal” notion as a violation of the 14th Amendment, is widely hailed not only for spurring the civil rights movement, but also for its perceived expansion of the role of courts as initiator of societal change. The second event marks the central role of Congress in protecting civil rights. As it turns out, there is widespread misunderstanding of both events, laudable though they are. That misunderstanding was reflected in a third civil rights benchmark: the U.S. Supreme Court’s decision upholding the 1964 Civil Rights Act in Heart of Atlanta Motel v. United States, decided 40 years ago this month. The 14th Amendment was ratified in 1868 during Reconstruction as a way of ensuring that former slaves, beyond being elevated to merely nominal freedom, could enjoy the full equality of citizenship. Congress, more than the courts, was seen as the primary vehicle for civil rights. Plagued by violence and intimidation by such groups as the Ku Klux Klan and rampant racial discrimination in the South, the Reconstruction Congresses, with the nearly unanimous support of those who originally had voted for the 14th Amendment, invoked their recent amendment to pass a number of laws that prohibited such activity. The culmination of these efforts was the Civil Rights Act of 1875. Remarkably similar to the 1964 act, it banned racial discrimination in public accommodations and transportation such as inns, theaters, streetcars and railroads. During the 1870s, however, public enthusiasm to protect the results of the Civil War gave way to virulent opposition to the federal government’s efforts to defend civil rights in the South. The political branches of the federal government reflected these changing attitudes by abandoning Reconstruction, and the Supreme Court aided this trend through cramped interpretations of the 14th Amendment. In 1883, the Supreme Court struck down the 1875 Civil Rights Act; it reasoned that Congress lacked the power under the 14th Amendment to protect civil rights except to address state action. Only Justice John M. Harlan, the court’s lone dissenter, appealed to the 14th Amendment’s original meaning. The court’s civil rights counterrevolution would continue beyond the “state action” doctrine: After Southern states did act to impose the segregation of public accommodations, the court issued its ruling in Plessy (1896) that such laws were permissible under a separate but equal rationale (with Harlan again dissenting). It was to the credit of the Brown court that the notion of separate but equal was expunged from constitutional law. But observers then and now tend to underestimate the extent to which the 19th century court’s doctrinal concoction was more a testament to lawyerly contrivance than an honest attempt to separate the races. Court was not bold enough It is clear from the ratification debates that the 14th Amendment aimed to prohibit caste and racial distinctions under the law, yet in overturning Plessy, the Brown court explicitly disclaimed the need to follow the original meaning. Instead, the court tepidly stated that “we cannot turn the clock back” to 1868 or 1896, and relied on arguable conclusions as to the psychology of school segregation. When it upheld the Civil Rights Act of 1964 10 years later in Heart of Atlanta Motel, the court declined to recover the 14th Amendment from the state action doctrine that had struck down the 1875 law, and instead upheld the 1964 law under the interstate commerce clause (expansively interpreted since the days of the New Deal). That the 1964 act was more clearly about equality than about regulating commerce has never been the official reason it is the law of the land. Treating the Constitution as a malleable document that changes with the times is tempting, but ultimately undermines the rationale for having a Constitution. Today, too many hail Brown as a mandate for an unelected judiciary to change its interpretation of the Constitution to transform society, without regard to the meaning first imparted to that document’s provisions by the people’s elected representatives. Too few recognize that the problem that necessitated Brown and a new civil rights statute in the first place was the Supreme Court’s capitulation to the late 19th century shift in public attitudes against civil rights. If the events of 40 and 50 years ago have never been fully understood for the lessons of the century that followed Reconstruction, they should be today. It is implicit in the very idea of a Constitution that, whatever else changes, there are certain principles that the courts will adhere to even when the times deem it ripe to disregard them. Frank Scaturro is an associate at New York’s Cadwalader, Wickersham & Taft. He is the author of The Supreme Court’s Retreat From Reconstruction (Greenwood Press, 2000).

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