“The [twentieth century civil rights] statutes were written against the backdrop of doubt about their legitimacy. This uncertainty stemmed from several factors.”

Greene identifies three factors responsible for this uncertainty. She states:

First, until Brown I in 1954, the Supreme Court had constitutionally endorsed both the separation of the races’ and all but the most overt and outlandish forms of political disenfranchisement. Moreover, at the time that the Civil Rights Acts of 1964 and 1965 were passed, the Supreme Court had not yet repudiated the “with all deliberate speed” doctrine. Thus, the Supreme Court’s announced support for integration of the races in public schools was met with understandable doubt about the extent to which the principle would function as an operative principle in our daily lives. Moreover, both Brown I and the second Brown v. Board of Education decision (Brown I])” had produced ongoing massive resistance.

Second, at the time the twentieth century civil rights acts were passed, it was not at all clear that Congress had the power to legislate equality. Of course, little doubt existed that Congress could outlaw overt discriminatory state action, but that was not the important area of dispute. Rather, the key question after Brown I was whether Congress could outlaw private discriminatory action. In 1883, in the Civil Rights Cases, the Supreme Court considerably narrowed the scope of congressional power under the thirteenth amendment to reach private discrimination. In the same case, the Supreme Court denied congressional power to reach private discriminatory action under the fourteenth amendment.” The Supreme Court had not issued a contrary ruling until 1965.

The debate in Congress over the Civil Rights Act of 1964 reflected the uncertainty on this issue.” Although Congress justified the Act under both the fourteenth. amendment and the Commerce Clause, it relied solely on the Commerce Clause to support the Act’s coverage of private discrimination.” This heavy reliance on the Commerce Clause was a rejection of the suggestion made by at least one commentator that the Supreme Court be given an unequivocal twentieth century opportunity to rule upon the scope of congressional power pursuant to the thirteenth and fourteenth amendments.”

The congressional decision was strategically and legally sound. It would have been impossible for the Supreme Court to examine the legal legitimacy of the commerce clause-based Civil Rights Act without also calling into question the legitimacy of hundreds of other (commerce clause-based) statutes. The decision was also politically sound for the same reason. By linking the legitimacy of these civil rights guarantees to this one of Congress’ most important powers, the strategy tied the legal legitimacy of these critically important civil rights protections to Congress’ past, present and future as a powerful legislative body. This decision virtually insured that the Supreme Court would find constitutional the portions of the Act dealing with private discrimination. However, Congress’ inability to agree upon the scope of equality guaranteed by the very amendments one hundred years old, which ought to have ended a sordid chapter in our history, underscores the hostility of the world into which these new guarantees of equality were born.

Third, the meaning and scope of the equality guaranteed under these twentieth century civil rights statutes were largely unclear. Surely Title II of the Civil Rights Act, the public accommodations title, which guaranteed the “full and equal enjoyment of . . . goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … without discrimination or segregation” would reach the outright exclusion symbolized by the “white only” sign. But would the law adequately reach the subtle insults, slights and “microagressions” which might accompany access to previously segregated establishments? Title VII of the Civil Rights Act, the fair employment title, incorporated language which made it illegal both to make employment decisions “because of…race and color” and to “limit, segregate, or classify…in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of…race.” What did this “tend to deprive” language mean? Would it reach facially neutral employment criteria or systemic practices which operated to maintain segregated employment systems? And what of the remedial scope of Title VII? How broadly would courts construe Congress’ grant to the federal courts to “…order such affirmative action as may be appropriate”?

Source: Linda S. Greene. Twenty Years Of Civil Rights: How Firm A Foundation? 37 Rutgers L. Rev. 707,709-11. 1984-1985.

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