- Historic Sites
March 1990 | Volume 41, Issue 2
What resurrected it was the Voting Rights Act of 1965. That particular contribution of the civil rights revolt of the 1960s— sometimes called the Second Reconstruction—had a dramatic and almost immediate effect. In 1970 the Negro Almanac counted some 1,300 black officials, including 10 representatives, 1 state treasurer, 48 mayors, 168 state legislators, and hundreds of city officials, school-board members, judges, and law-enforcement officials. Now, twenty years later, the totals are much higher, the black vote is a significant force in Southern and metropolitan politics, and plainly a growing percentage of white voters seems willing to be color-blind.
This is a long way short of full representation. Any rosiness of outlook is dampened by the stark facts of black America’s economic and social disasters. Yet the new generation of black officeholders is larger, sawier, and more securely entrenched than that of the first Reconstruction, and it’s clear as of now that history will not record a second nullification of the Fifteenth Amendment.
With the Fourteenth, however, the picture is darker and more confusing. That amendment conferred citizenship and the “equal protection of the laws” on blacks, and in 1875 Congress passed a Civil Rights Act to give it effect by providing for equal treatment of whites and blacks in a variety of public settings. But the Supreme Court quickly blunted the edge of the new law. In 1883, in a series of civil rights cases, it invalidated large portions of the new statute. The Court argued that the Fourteenth Amendment only forbade states to restrict the rights of blacks but that “individual invasion of individual rights is not the subject matter of the amendment.” This meant that within each state, “individuals” or corporations operating hotels, restaurants, apartment houses, streetcars, theaters, and so on could ban blacks as they pleased. Thirteen years afterward in Plessy v. Ferguson, the Court approved “separate but equal” accommodations on Louisiana railway trains. This despite the blistering dissent of Justice John M. Harlan, scion of a Kentucky slaveowning family and grand-father of a future justice of the same name. He insisted, in vain at the time, that “our Constitution is colorblind.”
Slavery—despite the denials of both sides— kindled the Civil War and then was consumed in the fire. But racism was left to be dealt with.
It was a short step from there to Cummings v. Board of Education (1899), upholding “separate but equal” schools. Of course, with the practical denial of the vote to blacks (sanctioned by the Court in U.S. v. Reese, 1876) there was no way to prevent the separate Jim Crow facilities from becoming grotesquely unequal.
The present-day federal law putting teeth into the Fourteenth is the Civil Rights Act of 1964. It—along with some of the remaining legislation from the First Reconstruction—has run into some trouble with the current Supreme Court. In Patterson v. McLean Credit Union (1989) the justices held that a provision against racial discrimination in hiring may not necessarily allow a minority employee to sue in protest against on-the-job harassment or denial of promotion. In Wards Cove Packing Co. v. Atonio (1989) the plaintiffs showed statistically that minorities were underrepresented in higher-paying jobs in the company. But the Rehnquist Court told them that merely showing the numbers was not enough; intentional discrimination had to be proved. And in Martin v. Wilks white would-be Alabama firemen, charging “reverse discrimination,” overturned an affirmative-action agreement in which Birmingham would parcel out new Fire Department jobs to blacks in a fixed ratio to offset past exclusion.
The long-range impact of these decisions is controversial and, when debated by lawyers, murky to nonlawyers. I believe, however, that in conjunction with other decisions curbing affirmative action, they encourage a strong potential for sub rosa discrimination and therefore spell a setback for the Second Reconstruction—though nothing on the order of what happened a century ago.
The broad question of equal justice for all races is still very much alive. The Civil War dealt not only with the future of the Union, which it settled, but with the future of black and white in the reunited nation, which it did not. Paradoxically, slavery—despite the denials of both sides—kindled the war and then was consumed in the fire. But racism was left to be dealt with.
As usual, Lincoln put it best. In the Second Inaugural Address he said: “Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding.”
Fundamental indeed. And astounding how far we have come since the 1860s. But the part of the Civil War that brought the American promise into conflict with the American racial psyche is not over.