The Civil Rights Division and the Fight for Equality under the Law

President Dwight Eisenhower signs the Civil Rights Act of 1957. (Photo: Digital Public Library of America)President Dwight Eisenhower signs the Civil Rights Act of 1957. (Photo: Digital Public Library of America)

This December will mark the sixtieth anniversary of the creation of the Civil Rights Division of the Department of Justice. Responsible for enforcing federal statutes that prohibit discrimination in education, voting, housing, employment, and public accommodations, the division also has the authority to prosecute federal hate crimes and human trafficking cases, to investigate and pursue penalties in cases of police misconduct, and generally to undertake legal measures to ensure that the civil rights of all Americans are protected. Despite its vital role in helping implement the nation’s civil rights laws, however, the Civil Rights Division has long been a target of conservatives who see it as a politicized vehicle for government overreach and left-wing advocacy. Such critiques, which not infrequently reflect skepticism of the division’s very mission and purpose, echo those of politicians who opposed its initial creation altogether and who did everything they could to prevent it from coming into being.

The authority of the federal government to enforce civil rights laws dates back to the era of Reconstruction that followed the Civil War, but the government mostly abdicated that responsibility after 1883. That year, the Supreme Court ruled that the Civil Rights Act of 1875, which imposed criminal penalties for racial discrimination in public places, was unconstitutional. The ruling, which gutted the enforcement provisions of the Fourteenth Amendment, effectively sanctioned the building of a regime of Jim Crow segregation, disfranchisement, and nearly unchecked racial violence at the state level.

The legal options at the disposal of the federal government for acting on behalf of black civil rights remained limited for generations. The Supreme Court repeatedly upheld the rights of individuals and states to discriminate against black people, most notoriously in the 1896 decision of Plessy v. Ferguson, and southerners in Congress consistently killed any proposed bills that might have protected black Americans, such as a federal anti-lynching law. The era of the New Deal saw some renewed federal efforts, most notably the creation of a Civil Liberties Section within the Criminal Division of the Justice Department, authorized by President Franklin Roosevelt in 1939. That unit, which became known as the Civil Rights Section in 1941, had the authority to undertake criminal prosecutions for what remained in place of federal civil rights laws. Still, in practice its actions were minimal and primarily involved prosecuting violations of federal labor laws.

As the momentum of the civil rights movement increased after World War II, however, so too did efforts to revive the meaningful authority of the federal government to act on behalf of racial equality. In 1946, President Harry Truman appointed a federal Committee on Civil Rights. Its 1947 report, entitled To Secure These Rights, described pervasive racial discrimination throughout the United States and included a set of sweeping legislative recommendations. The report called for a federal antilynching law, the abolition of poll taxes for voting, the establishment of a permanent federal Civil Rights Commission, and the elevation of the Civil Rights Section of the Justice Department to its own separate division. In 1948, Truman recommended that Congress adopt the recommendations of the Civil Rights Committee, but conservative segregationist southerners blocked almost all prospective congressional action and ensured that the legislative agenda laid out by the committee would be moribund.

President Dwight Eisenhower, who succeeded Harry Truman, saw the issue of black civil rights as a recruiting tool for Communists, but his Attorney General, Herbert Brownell, strongly supported the cause. Brownell urged the appointment of Earl Warren, the former Republican governor of California, as Chief Justice of the Supreme Court in 1953, submitted a legal brief opposing segregation in the case of Brown v. Board of Education in 1954, and in 1956 worked alongside leaders of several black organizations to draft a law that would reassert federal power in support of civil rights.

As proposed, the bill created a bipartisan six-member Civil Rights Commission within the executive branch and empowered it to investigate allegations that citizens were being denied their civil rights, particularly their right to vote. The bill authorized the Attorney General to file civil lawsuits against those accused of voter intimidation and to obtain injunctions to prevent interference with voting. It provided more stringent criminal penalties for violations of voting rights, and it ensured that jury qualifications for the federal courts in which such cases would be tried were freed from state jury rules that often excluded black jurors. And it established the position of an assistant attorney general for civil rights, which in turn moved the Civil Rights Section of the Justice Department out of the Criminal Division and made it a division of its own within the department.

Although centered on the protection of voting rights, the proposed bill potentially had broader implications, requiring the federal government to act in support of civil rights and racial equality. And that prospect particularly enraged white southerners. During the debate over the bill in 1956, numerous southern Congressmen referred to the proposed Civil Rights Commission as a “Gestapo,” and eighty-three southern Representatives submitted a statement objecting to the bill as violation of states’ rights at the hands of an intrusive federal government. Arguing that the Civil Rights Commission contained sweeping investigatory authority and that the office of “a politically minded Attorney General” could unleash “a vast horde of lawyers and investigators” into states and localities and subject officials and private citizens alike to “insults, intimation and terror,” the Representatives concluded that the proposed legislation contained the ingredients for tyranny. “No one has the wildest idea of the purpose for which the extraordinary power created by this legislation will be employed,” they argued, “and to grant them by such vague language as is contained in the bill approaches recklessness.”

Despite such strident opposition, the bill passed in the House of Representatives only to die from inaction by the Senate. An undaunted President Eisenhower resubmitted the bill to Congress in 1957. Its road to passage was no less rocky the second time around. The bill passed yet again in the House of Representatives, where it received overwhelming and bipartisan support except from delegations of the former Confederate states. Among the 102 voting House members from those states, just one, Tennessee Republican B. Carroll Reece, voted in favor of the bill.

In the Senate, meanwhile, southern segregationists were just as determined to kill the bill as they had been the year before. The Chairman of the Judiciary Committee, James Eastland of Mississippi, notoriously boasted about his ability to bury civil rights bills that came through the committee, and influential Senator Richard Russell of Georgia gave a blistering speech against the bill on the Senate floor in which he conjured a federal government that would run roughshod over the rights of states as it supposedly had during Reconstruction. Senate Majority Leader Lyndon Johnson of Texas supported the bill—the first civil rights bill he had gotten behind in his twenty years in Congress—but for the sake of getting his fellow southerners to drop their opposition he ultimately agreed to amendments that significantly watered down the enforcement powers of the act. And yet, the bill still did not come up for a vote until after South Carolina Senator Strom Thurmond personally filibustered it for more than twenty-four hours straight, infuriating even his fellow segregationists, who had agreed as part of their compromise with Johnson not to filibuster the bill.

Once the Senate finally voted on the bill, it passed by a margin of 72-18, with all but one of the 18 votes in opposition coming from former Confederate states. When President Eisenhower signed the Civil Rights Act of 1957 on September 9, 1957, it became the first federal civil rights law passed by Congress in eighty-two years. The compromises engineered to ensure the law’s passage disappointed many civil rights leaders and white liberals, who felt that those compromises had weakened the law to the point of almost total ineffectiveness. By enshrining the Civil Rights Division and the Civil Rights Commission in the federal government, however, the law provided some of the basic structural components that would enable the toppling of legalized segregation and the pursuit of legal equality for a wider spectrum of minority groups in the United States.

The extent to which the Civil Rights Division of the Justice Department succeeds in its tasks depends, of course, on the priorities and energies of the Assistant Attorney General who heads it, on the Attorney General of the United States, and ultimately on the President. Supporters of federal activism on behalf of civil rights are understandably pessimistic about the prospects for the Civil Rights Division should the current nominee for Attorney General, Alabama Senator Jeff Sessions, be confirmed. Sessions has a lengthy track record of questioning the role of the federal government in enforcing civil rights laws, and has recently criticized consent decrees between abusive police departments and the Justice Department that would compel reforms as “end run[s] around the democratic process” and “one of the most dangerous, and rarely discussed, exercises of raw power.” If the history of the fight for equality under the law has taught anything, however, it is that the fight never ends.

About the Author

Joshua D. Rothman

Joshua D. Rothman is Professor of History and Chair of the Department of History at the University of Alabama. He is the author, most recently, of Flush Times and Fever Dreams: A Story of Capitalism and Slavery in the Age of Jackson (2012), and is currently working on a book about the slave traders Isaac Franklin, John Armfield, and Rice Ballard.

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