Commentary Magazine


Civil Rights in 1956:
Politics Replaces the Economic Motive

One is not surprised to find that most Democrats and Republicans would prefer to see the civil rights issue buried rather than exposed during the coming election campaign. So thorny a problem cannot be discussed in pretty political rhetoric. Thus it is proposed that the question of civil rights be excluded from campaign discussion, and the whole matter be left to the Supreme Court. At the same time, a course of “moderation” is advocated: i.e., a mild civil rights program that would appease some Negro voters without alienating either the rabid segregationists or the less unreasonable elements in the South.

In the past, civil rights measures used to arouse heated debate, but whether minorities fared well or badly depended less upon the specific written protections they won than upon the social and economic patterns within which they lived and worked. While strong economic forces still operate in favor of minorities as they did at various times in the past, powerful counter-forces have appeared at the social and political levels to threaten the progress of America’s “second-class citizens.” The economic motive alone, without other safeguards or pressures to accord hitherto disfavored groups their due rights as Americans, may not prevail against these forces. Now more than ever, the fate of minorities, in the North as well as in the South, depends on the explicit protection of their civil rights by juridical and political means.

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I

The motives prompting measures to safeguard civil rights have changed with the times. In 1789, when the Constitution was drawn up, the demand for a Bill of Rights arose out of the fear that the central government, if not properly restrained, might turn tyrannical. But even if the Bill of Rights had not been appended to the Constitution, it is probable that in the United States of that day the social and economic pattern would of itself have acted to limit the central government’s power for many years to come.

Nor was this pattern seriously challenged by immigration from Europe after 1830. There were eruptions of prejudice, but on the whole the European immigrant, if not the African, assimilated easily. The frontier was still open, and one-man, small-scale, localized enterprise continued to predominate both in agriculture and trade. In 1861 Lincoln could still describe our system as one in which the “prudent penniless beginner in the world labors for wages a while, saves a surplus with which to buy tools or land for himself, then labors on his own account another while, and at length hires another new beginner to help him.” The society of which the European immigrant became a part was in those days hardly conducive to lasting oppression.

The Founding Fathers had left the treatment of the Negro to the states; hence the civil rights amendments and statutes enacted after the Civil War were quite properly aimed at them rather than at the central government. But it was not legislation that ultimately enlarged the Negro’s rights and opportunities: he had to wait still another fifty years, and for the general economic expansion attendant upon two world wars, really to improve his status.

As industrialization proceeded, as cities bulged with European immigrants to whom the frontier was no longer open, and as a new crop of entrepreneurs moved into business and finance, the collapse of democratic safeguards seemed threatened again, this time by xenophobia, anti-Catholicism, and class conflict. But it turned out that safety valves were hidden in the economic process itself. The new entrepreneurs were no paragons of virtue and cared little about personal rights or the equality of all men. Quite the contrary: they imported cheap contract labor and fiercely resisted the efforts of native-born workers to get better wages. Yet their very ruthlessness acted to create a free labor market and keep it competitive, with skill rather than national origin, and capacity for work rather than breed or creed, determining who was hired and who wasn’t. The bias against new immigrants, though bursting into expression from time to time, could not prevail against the sheer need for working hands. Hence it was economic opportunity and economic expansion, not Constitutional protection, that promised equality—social as well as political—to the post-Civil War immigrant.

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European immigration all but ceased after the First World War, but the demand for labor continued. It was then that the Negro made his first real move toward the cities, especially those of the North. By 1940, almost two and a half million Negroes were living in the northern part of the country east of the Mississippi, and in the next ten years the non-white population more than doubled in thirty standard metropolitan areas of the Northwestern, North Central, and Western states. The Negro, finding himself in a strange environment in the Northern cities, had to make a rapid change-over from handicraft to industry and from a rural to an urban way of life. To these difficulties was added his “higher visibility,” which slowed his upward movement on the economic ladder and put him at a disadvantage as against the white immigrant. But even if urban life did emphasize his lowly economic and social status, the Negro had at last broken away from share-cropping. There was to be no turning back.

Today there are over a half million Puerto Ricans in this country, and two and a half million persons of Mexican descent, and they face difficulties much like those of the Negro. Impermanence of location and lack of facility in the English language are additional handicaps in their case. Working in gangs has insulated many Mexicans from contact with non-Mexicans, while casual employment has kept them rootless and proved a factor in their segregation. The Puerto Ricans, though they have the benefit of American citizenship if not of the English language, and though their in-migration continues at the net rate of about 45,000 a year, have found it difficult to establish roots in other areas than New York City; all too often they return to the Island before the assimilative processes can begin to touch them.

If these new migrants could benefit by the same economic and social processes that operated for the European immigrant in the past, the need for specific political protection of their rights might have become no more important than it was in the case of the Europeans. But the newcomers of our day are, for one thing, more easily identifiable by their color, which cannot be disguised merely by exchanging dungarees for gray flannels. For another, the only frontier left open to them is an urban one. Like all other migrants, their prospects in this country depend mainly on their ability to find homes and jobs, and here too they suffer disadvantages not known to their predecessors. To accommodate the previous waves of immigration, houses were built either by the immigrants themselves, by the companies which employed them, or else by speculative builders. Such speculative housing did not meet the best standards, but it was at least new, built in quantity, and rented at costs the immigrant could afford. By the time the Negroes and Puerto Ricans began pouring into our cities, only the left-overs of these sub-standard dwellings remained available to them. For these and whatever other hovels they could find, they had to pay ever increasing rents. One of the consequences has been such overcrowding as to make it impossible for the new migrants to raise their families decently.

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Meanwhile, moreover, a social revolution has taken place in American residential neighborhoods whose effect has been to put a new and extraordinary emphasis on social status. Ever since immigration to America began, Negroes and whites, foreigners and natives have been found living in the same general areas; one could see on a single city block the Jewish storekeeper, the Italian barber, the Chinese laundryman, the German restaurateur, and the Negro superintendent. Besides, members of minority groups often had to live quite close to their more affluent customers in order to do the work of laundering their collars, baking their bread, and trimming their hair. Those minority members, on the other hand, who chose to live among their own kind could, as their condition improved, move elsewhere with relative freedom.

In recent times, however, heterogeneity has turned into a liability. The neighborhood where one lives has become an index of status, and a neighbor of the wrong complexion a token of one’s own social decline. A man’s status used to be judged by such things as the kind of crystal in his chandeliers; today the race or religion of his neighbors is considered a more pertinent criterion. The new exclusive suburb, with its basis in the quest for status, is now shaping the American personality as effectively as the quite different conditions of the frontier did a century ago. Builders capitalize on the new “value” of exclusiveness and sell it as they sell tiled bathrooms, while municipal and other local officials, in response to the demands of their constituents, employ all the direct and devious devices of office to keep out unwanted intruders.

In 1934, while this social revolution was taking shape, a concurrent political revolution that expanded the powers of government had the effect of ratifying and intensifying the emerging patterns of exclusiveness. Hitherto most decisions in American economic life had been made by businessmen, and the improved position of minorities was a by-product of business activity and of the pursuit by employers of their own interests in the matter of cheap labor. Government, no longer the land-giver, had gradually become a kind of umpire, an impartial overseer, interfering with private operations only when the public conscience was shocked by a violation of the rules. Business feared and opposed expansion of the Federal powers, while government in its turn stood aloof from business. The mercantilistic idea that what was good for the government was good for business had faded with the rise of laissez-faire in the 18th century—while the current notion that what is good for business is good for the government had not yet been born.

The private entrepreneur operated under the ethic of caveat emptor, “I am not my brother’s keeper,” and “Let the devil take the hindmost.” The Constitutional or public ethic, on the other hand, was that of the arbiter, the guardian of the weak against the strong, the counterpoise between diverse interests. This public ethic, carrying the implication that entrepreneurs have duties and responsibilities as well as rights, stood over the lower private ethic and served as a continual challenge to it.

This challenge was met by the emergence of a new social consciousness on the part of business and government at the beginning of this century. The regulatory powers of both the state and Federal governments grew, philanthropy spread, and the rights of the consumer were acknowledged and increasingly acted upon. At the state level—at least in the North—there were such improvements as dwelling laws, health laws, laws for the protection of factory workers, and zoning and civil rights legislation. At the Federal level there came a growing effort to check monopoly and unfair trade practices, and generally to prevent giant business from swallowing up the human beings at the base of the economic pyramid. Though far from being animated by motives of universal benevolence, private enterprise, when restrained by government from its own excesses, appeared for a time to promise as good a pattern of fair play as could then be conceived.

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Whatever promise it may have held, however, the old system had shown little capacity to cope with mass unemployment or effectively to correct the more flagrant excesses of entrepreneurs. In its effort during the Great Depression to prime economic recovery, the Federal government expanded not only its regulatory power in order to check some of these excesses, but also its welfare and spending powers in order to relieve unemployment, improve housing conditions, revive lending and investment, and stabilize the farm economy. It was not long before the Federal government’s “general welfare power” became virtually unlimited—became, in fact, the primary force in the economy. Later the requirements of war and defense further widened the government’s involvement in the economic process and extended its financial interest into almost every major aspect of the private economy.

The growth of Federal powers and of Federal expenditure brought great benefits but also some unforeseen liabilities. One was the rise of a new entrepreneurial class that no longer opposed government expansion but, on the contrary, pressed for it to a greater extent than any starry-eyed reformer ever did. Socialization of losses and socialization of risk, far from being feared, were welcomed under the label of “aid to private enterprise.” Mortgages by the billions were lifted out of the portfolios of lending institutions. An FHA system designed to stimulate home-buying insured the risks of lenders and eliminated the essential investment of builders. A Home Loan Bank System enabled savings and loan institutions to borrow Federal money, sell shares to the government, and swell their resources through government guarantee of their deposits.

Whatever the tonic effect of these meassures on the white majority, they militated against the interests of the non-white minorities. When, for example, Congress adopted a small slum-clearance and private housing program, it was soon curtailed on the ground that it was in competition with private enterprise. A new program was instituted under which the government subsidized private slum clearance, and the result was in most cases to displace minorities from the footholds they had secured in the cities and to make it harder than ever for them to secure adequate housing.

No sooner was the shift made from general to “business welfare” in housing and lending than the conflict between public and private ethics reappeared. The racial restrictions prevalent in private building operations became the rule in Federally aided ones, and for more than ten years FHA’s official publications advocated “racial homogeneity” and racial covenants in residential neighborhoods, at the same time advising the barring of minority groups from FHA-aided projects. Officials of the Home Loan Bank System, writing in the trade publications, urged similar practices. Thus, even under the liberal New Deal, the higher public ethic gave way to the lower private one in housing, and the new public benefits were dispensed unconditionally in a market place.

The entrepreneur who felt that he had a perfect right to act on his biases, and comply with those of his customers in his own private operations, could not understand why he had to change his business ethics and practices just because the government was underwriting his risks. The FHA official could not see why the ethic he lived by in his Washington suburb had to be changed when he sat behind a government desk. His job was to sell a government insurance and lending scheme; bias was part of the market mechanism, and it seemed perfectly logical for him not only to tolerate but encourage private discriminatory practices as long as this helped make his program successful.

The practice of exclusion that had been inaugurated by the private builders consequently became incorporated in public specifications, and stayed there. Though now erased from the official manuals, racial exclusiveness and homogeneity in residential neighborhoods remain unwritten policy to this day.

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The ethical conflicts in the new housing economy could at least be stated, if not resolved; those provoked by the employment of minorities under the new political order were more mixed and complex. Here the ethical responsibility of three groups was concerned: purely private industry, private industry that dealt with government or benefited from its aid or power, and public organizations receiving public aid or exercising public power.

In the past the private employer, like the private builder, enjoyed an absolute right to discriminate: he could hire, or refuse to hire, anyone he pleased. This is still the rule in most of the country. Yet discriminatory practices have not normally been part of the actual habits or requirements of business enterprise. Industrial expansion, as we have seen, calls for labor, and the fact that a worker was black, white, Puerto Rican, or Mexican, always was, and might have been expected to remain, less important to the average entrepreneur than his skill or the amount of pay he demanded.

Three developments are intervening to modify this attitude. One is the unprecedented increase in the concentration of industry. In New York State, for example, one-tenth of one per cent of all employers now employ a full 30 per cent of the state’s workers; elsewhere, whole cities have become dependent upon one or a few large industries. Thus many a personnel manager is in a position to limit drastically the hiring or promotion of thousands of members of a minority group by his arbitrary decision alone.

A second development has been the growth of unions. The progressive policies of most unions have advanced the opportunities of minorities, but some of them still maintain discriminatory policies that have the effect of banning an entire minority group from an industry or a trade—particularly the skilled ones.

The third development has been a tendency toward discriminatory hiring in answer to the pressure of city officials fearful lest changing the ethnic or racial composition of their neighborhoods invite social, if not political, problems, or require them to increase their public-education commitments. Today there is also a marked tendency to hire cheap agricultural hands from outside the country who will return to their places of origin after the season is over, or who can at least be corralled and sent back by force, and who will not move into the cities to take industrial jobs. As the president of a Florida group of growers who refused to hire native-born members of minority groups testified:

“The vast difference between the Bahama Islands labor and the domestic, including Puerto Ricans, is that labor transported from the Bahama Islands can be diverted and sent home if it does not work, which cannot be done in the instance of labor from domestic United States or Puerto Rico.”

Because of the increasing number of such local tyrannies, many industries now tend to hire white labor exclusively—at least until the supply is exhausted; and to hire minority members only where there are nearby cities in which they can live in large numbers; thus countryside and suburbs are spared the expense or effort of providing homes for them. The Automobile Workers Union has won important employment rights for Negroes, but the mayor of Dearborn, where the major Ford plant is located, openly boasts of having “kept Negroes out of Dearborn,” and has repeatedly sought, and won, re-election on the basis of this “accomplishment.” Chicago, which has experienced a heavy Negro influx, has seen eight major race riots since 1945, but nearby Cicero, which had a major riot in 1951 when a Negro tried to move into the city, has successfully banned Negroes from its residential neighborhoods, though permitting their employment in its factories.

These three developments, along with the widespread practice of exclusion in housing, have markedly limited the freedom of opportunity and of movement which not only have always been among the most precious rights in our country, but have also been major factors in promoting social assimilation.

By contrast with the situation in purely private industries, the ethical issue for private enterprises that deal with the government—which has lately burgeoned into the largest single contractor in the economy—is quite easy to define. The government can and should see to it that the rules of democratic conduct are complied with by any firm to which it awards a contract. Such a measure, which the employer can take or leave (that is, he can refuse the contract), is far less drastic than across-the-board regulation against discrimination.

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II

About the ethical responsibilities of public enterprises using public funds or power, there has never been any dispute. It has always been implicit in the American system that public agencies may not discriminate in the dispensation of their funds or powers; the powers they exercise, the taxes they levy, and the funds they expend belong to all the people, not just to one part or class. And no court and no responsible official in these United States has ever questioned the doctrine of the equality of all citizens under and before the law.

Yet an adequate new ethic embracing public and publicly aided as well as purely private agencies has still to be developed. Industry should have the freedom to hire anyone it thinks can do the best job, but not to ban or subordinate a whole group on the grounds of race, religion, or color. The Federal government is no longer the detached arbiter who intervenes only when business or faction has provoked the public conscience, effects a correction, and then is content to withdraw to the sidelines once more. Government now belongs to the very mechanism of enterprise, and those who benefit from its funds should abide by the ethical standards to which the government itself subscribes. States and cities, now the beneficiaries of vast Federal loans and grants for public works, housing, education, and social service, have a double obligation—as public agencies and as the recipients of Federal funds. States’ rights have now given way to states’ duties, and one of the most important of these is the protection of minorities.

Some states have, over the last ten years, risen to their responsibilities, setting up commissions against discrimination in employment and housing; and important gains have been made in breaking down resistance to the employment of minorities. But all such commissions have been hampered by lack of either power or funds. The laws are passed to satisfy the pressures of civic and minority groups, but then are hamstrung in their execution. (Thus the New York State Commission Against Discrimination has sixteen fewer employees today than it had eight years ago.) Few of these agencies may enjoin housing discrimination, and only nine actually have powers of enforcement. Legislators, often dominated by smaller communities fearing the influx of minorities, have opposed the granting of the required powers and funds.

A state agency’s power is in any case less effective than would be that of a Federal agency, since some interstate employers may be in the position to claim immunity from state controls, while others can hire labor in states where no restrictions against discrimination in employment exist. Federal policy has not risen to this challenge, despite the expansion of Federal power, the rising concentration of industry engaged in interstate operations, the growing size of labor unions, and the increased number of public and private enterprises dealing with the Federal government or benefiting from its aid. Though power to act exists with Congress, with the Executive, and to a certain extent with the Supreme Court, progress has been virtually halted at all three levels. (The President’s Committee on Government Contracts, which is designed to cope with discrimination in employment, has only fifteen employees and an uncertain budget of only $190,000, which is contributed by the very Federal agencies whose practices may be in question.)

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The brightest hope for resolving the ethical issues involving discrimination that have arisen in our new economy appeared for a time to lie with the Supreme Court. Though the Court cannot initiate action to check an emerging danger, its rulings in specific cases have often had a salient effect in defining the moral issues of a situation, and enjoining conduct contrary to public policy. And though the Court in an earlier period had evolved the “separate but equal” doctrine, it had also restrained oppressions against the Chinese minority and struck down racial zoning and other inequities. In the 1940’s, with a more liberal membership, it moved toward bringing within the Constitution agencies benefiting from government aid or power. It enjoined race discrimination by a labor union which had been an exclusive bargaining agent under the Railway Labor Act, and described such a union as “clothed with power not unlike a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy, or discriminate against the rights of those for whom it legislates. . . .” A “private” political party in the South which had admitted only white Democrats was barred from excluding Negroes. The Court refused to disturb a decision enjoining a privately run but publicly financed library from discriminating against Negroes. A large company town that owned all the town’s facilities was held subject to Constitutional limitations on abridgement of religion, though the company was not operating with public funds.

More recently, courts were enjoined from enforcing racial covenants in housing; railroads and buses were barred from segregating their passengers. Thus the way was being paved for bringing agencies “affected with a public interest” under the same ethical standards as those which governed public agencies themselves.

In the egalitarian atmosphere pervading the immediate postwar era the Court, through a series of rulings, all but nullified the “separate but equal” principle in publicly aided enterprises, thus seeming to establish itself as the strongest protector of civil rights in the Constitutional system. The aftermath of the recent school decisions has, however, frustrated whatever hope there was that the Court would become the instrument by which the ethical concepts governing employment in the purely private sector, as well as in the new public-private complex, could be raised. The power and prestige of the Court have been shaken to their foundations by an all-out attack on its decisions involving civil rights and liberties; and unless the tide turns soon, a serious mutation of the democratic structure may follow.

When in 1954 the Court finally held that “separate educational facilities are inherently unequal,” there was a tremor but hardly a cataclysm. Previous decisions and dicta seemed to have prepared the country, and the South, for the inevitable. When, thereafter, the Court heard argument on the issue of enforcement, most people took it for granted that its decision would be obeyed. Attorney General Herbert Brownell had urged the Court to remand the cases to the District Courts for enforcement under the high court’s supervision, and in the closing paragraph of his brief had promised Executive support:

The responsibility for achieving compliance with the court’s decision in these cases does not rest on the judiciary alone. Every officer and agency of the government, federal, state and local is likewise charged with the duty of enforcing the Constitution and the rights guaranteed under it.

Nonetheless, a general impression has been permitted to grow that the Court has arrogated all enforcement to itself and that the two other levels of the Federal government can henceforth rest on their oars. The reluctance of the President and of the Attorney General to speak out on the issue of enforcement has not helped to dispel this impression.

The fact is that the Court, armed as it is solely with stenographers and attendants, has never been able to enforce its own decrees except in a very limited way, i.e. through contempt proceedings. These must be initiated by the party aggrieved, and there are few lawyers in the South willing to take the risk; and each of thousands of such proceedings would require elaborate and separate proof as to whether compliance was being effected with the “deliberate speed” required by the Court’s opinion. Contempt orders, if obtained, may be enforced by a Federal marshal who can deputize lay citizens to help him or, if deputies are unavailable, call upon the Executive department. Such help may even have to be gotten from the military, since the Federal government does not have the authority to order local police or state troopers to back up its marshals. This is what has been played up as the threat of an armed invasion or a new civil war.

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The truth is that neither a Federal marshal nor troops can be depended on to make equality in education a reality, nor should their assistance be necessary. The Court’s orders have been obeyed in the past because public opinion was usually behind the Court, and no one ever thought seriously of challenging it. And it was always assumed that the President would back the Court with his prestige, or, if that proved to no avail, with his economic power: when the Court ruled against the enforcement of racial covenants, President Truman (without waiting for Congress) immediately moved to condition all mortgage insurance upon the elimination of racial convenants. The President may also use his patronage powers, his power to aid states and localities in the many new fields in which the Federal government now operates; or he may invoke the vast influence he now commands in Congress and throughout the country. So too, the Attorney General can support the President and the Court, as he indeed promised to, by his own devices, which include intervention by the FBI and indictment under the Civil Rights Acts.

At a time when political measures to protect minorities seem more urgent than ever, both in North and South, the three Federal departments charged with the duty of taking action—executive, legislative, and judicial—seen unable or reluctant to do so. Yet where the public is led to believe that the Executive and community leadership are not behind a law, the machinery for its enforcement is bound to collapse or be ineffective. In the past the states tended to check the oppressions of the central government, the central government to check the oppressions of the states, and economic forces the oppressions of both. Today the threat comes from all three directions.

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A Constitution drawn up in 1789 for a society on which the hand of government was to rest as lightly as possible is now confronted by a society Where governmental powers and activities reach everywhere—into enterprise and into the daily lives of the people. And while the Executive fails to act, the judicial agency charged with adjusting the social and political responsibilities apportioned under the old Constitution to this new situation is under dire attack.

The civil rights issue may be politically disagreeable at the moment, but to ignore it, politically or otherwise, would be to endanger our whole system of government. Though presently highlighted in the South, the issue is as critical in the North, which is feeling the effects of the new minority migrations and the tensions they bring with them. One of the main needs of the time is to frame the issue in political terms. And a vital principle that needs expression now more than ever is that every increase in Federal authority must be accompanied by a corresponding increase in the safeguards against oppression. This implies not only stronger protection of civil rights by state and nation, but official support for the Court that has been seeking to carve these out. It means, also, the education of official agencies to new ethical responsibilities; the expansion of the Civil Rights section of the Department of Justice; the strengthening of the Civil Rights Acts; the development of sound social programs aimed less at aiding the entrepreneurs than at helping the new minorities to secure housing and improve their conditions. Above all, firm leadership by the President is needed to awaken the public conscience to the gravity of the moral questions involved.

By the expansion of governmental responsibility and authority we have effected a major revolution in the economic sphere and demonstrated our ability to preserve our people from the hazards of unemployment, mass foreclosures, and simple privation. But it remains to be seen whether we can maintain our fundamental democratic morality undiminished in the process. If we can, the example may impress the world as much as did the United States’ proclamation of freedom, right, and justice in 1789.

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