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Civil rights as we understand them are new, not old.
Equality was not a constitutional principle or legal imperative in 1776. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution were passed in 1865, 1868, and 1870, not in 1776. They made slavery illegal, introduced the principle of equal protection under the law, and gave Black men the vote. The first civil-rights statutes were passed in the same period to help undo the effects of slavery. Still, the aftermath of slavery was segregation. The Supreme Court decided to outlaw segregation in public schooling in 1954, not in 1776 or 1868. Modern civil-rights acts to dismantle segregation and prohibit discrimination were passed in 1957, 1960, 1964, and 1968, not in 1776 or 1868. The Voting Rights Act was passed in 1965, not in 1776 or 1868. In the United States for most of its history, Black people were virtually excised from the body politic, first through the constitutionally protected slave trade, then through constitutionally protected segregation.
There were two kinds of segregation. De jure segregation was mandated by law, enacted by statute, enforced by the police. De facto segregation was separation of the races without the overt sanction of specific laws: Blacks had inferior status, worth, and resources.
In the South, there was de jure segregation. Laws forbade Blacks access to public accommodations, including toilets, restaurants, hotels, parks, and stores. Blacks were allowed only restricted access to public transportation. Jobs, housing, and education were marginal and often debased in quality. De jure segregation effectively kept Blacks from voting. De jure segregation implicitly sanctioned physical violence against Blacks. There was widespread police brutality and vigilante terrorism, including lynchings and castrations.
De jure segregation set the standard for the way Black people were treated throughout the United States. The degraded civil status and racial inferiority of Blacks were taken for granted. In practice, segregation in housing and to a somewhat lesser extent in education was the rule. The use of the word nigger was commonplace. Unemployment and menial labor ensured that Blacks were economically dispossessed and politically disenfranchised. Narcotics, especially heroin, were dumped on Black urban ghettos, law enforcement collaborating in targeting a Black population for addiction and despair. White contempt for Blacks was expressed openly in humor, in street harassment, in condescension, in infantilizing or animalistic media stereotypes, and in physical violence. Until de jure segregation was dismantled, no Black person lived independent of it no matter where they lived, because de jure segregation meant that the authority of law applauded the debasing of Black people. Every Black person was affected adversely in their rights and dignity by de jure segregation, humiliated by its very existence. De jure segregation also had this deep and pernicious effect: it made de facto segregation look benign by comparison. Institutionalized racism had two ostensibly distinct, even opposite systems serving to validate it. In the South, this racism had the authority of law. In the rest of the country, the social inferiority of Blacks had the appearance of being natural, not imposed by force.
De jure segregation was destroyed over many years because vast numbers of Black people with some brave white allies fought it, sometimes at the cost of their lives.
De jure segregation was fought in the courts and in the streets. "The streets" included shops, restaurants, buses, hotels, parks, toilets, because of the high priority put by the movement on integrating public accommodations. Much of this activity was illegal. The courts and the streets were not separate arenas.
When the Supreme Court disavowed segregation in public education in 1954, it was left to Black children to desegregate the schools. They faced white mobs led by armed police and elected white officials. The children, not the Supreme Court, integrated the schools. When Rosa Parks refused to give up her seat to a white man on a bus in Montgomery, Alabama, on December 1, 1955, she was arrested and convicted for breaking a state segregation law. The Black community organized a boycott of the Montgomery buses that eventually led to their desegregation. Endless acts of civil disobedience resulted in perhaps hundreds of thousands of arrests over a period of at least a decade; marches led to continuous confrontations with violent police; civil-rights activists used the courts, sometimes as litigants, sometimes charged as criminals.
The courts were the courts of segregation; north or south, federal or state, they had protected segregation. The streets were the streets of segregation. The police were the police of segregation. The vote was the vote that had kept segregation inviolate. Civil-rights activists confronted the institutions of segregation because they wanted to destroy segregation. They went to where the power and injury were and they confronted the power that was causing the injury. This power hurt them whether or not they fought it. In fighting it, however, they forced it to reveal itself-its cruelty and its sadism but also its premises, its dynamics, its structural strengths and weaknesses. Each confrontation led to another confrontation, more and worse social conflict, often more and worse police or mob violence. The courts led to the streets and the streets led to the courts. The good judicial decisions led to the armed police who did not accept those decisions, which led back to jail and back to the courts. There were also in time negotiations with two Presidents of the United States (Kennedy and Johnson) and the Justice Department; then back to the street, back to jail, back to court. There were battles and compromises with federal legislators; then demonstrations, marches, civil disobedience, jail. In the impoverished rural areas of the Deep South, civil-rights workers taught illiterate Blacks to read and write so they could pass the literacy tests that were being used to keep Blacks out of the voting booths. The civil-rights workers were met with white violence. So were the Blacks who tried to register to vote, throughout the South.
The social conflict was real. Many were hurt and some were killed. The conflict escalated with each confrontation, inside the courts or in the streets. Each confrontation became more costly, both to the civil-rights activists and to the white-supremacist society they were fighting. Each confrontation forced people throughout the society to ask at least these two fundamental questions of power and dignity: Who is getting hurt and why? By attacking de jure segregation on every front, however dangerous or difficult, the civil-rights activists made the cost of maintaining the racial status quo higher and higher. Eventually it became too high. The Civil Rights Act of 1964 opened up public accommodations, first in the South, later everywhere, to Black people. The Voting Rights Act of 1965 opened up the voting booths.
The high cost of maintaining the status quo forced change; and so did the increasing moral authority of the protesters. They risked everything. Their bravery indisputably expressed the eloquence of their humanity to a nation that had denied the very existence of that humanity. Each assertion of rights enhanced the persuasive power of those who demanded equality. The moral authority of the protesters eventually exceeded the moral authority of the state that sought to crush them. They won access to public accommodations and to the voting booth; and they won the respect of a nation that had hated them. De jure segregation no longer set the standard for the contemptuous disregard of the rights of Black people; instead, Black people set the human standard for courage.
Our contemporary understanding of civil rights-what they are, what they mean-comes out of the Black experience: the human rights of Black people-their rights of citizenship and personhood-were violated in de jure and de facto systems of segregation. Civil-rights legislation grew out of the specific configurations of Black exclusion from society, dignity, and rights. Other groups were also afforded legal protection from discrimination. Where the patterns of discrimination experienced by those groups were analogous to patterns of Black exclusion under segregation, civil-rights laws remedied long-standing, systematic deprivations. For instance, the disabled, now protected under civil-rights legislation, have a right of equal access to public schooling and public accommodations.
The effort to stop racial discrimination in jobs, hiring practices, and housing has provided many stigmatized groups legal redress. Generally, discrimination on the basis of race, sex, religion, color, national origin, marital status, disability, or, in some cities and states, sexual or affectional preference, is banned. This broadening of civil-rights protection to many stigmatized groups was the result of political activism, legislative initiatives, and many, many lawsuits. It was not simply decreed one bright day because it was right and bigots had recognized the error of their bad ways.
It is especially important to understand that Blacks includes Black women and that women includes Black women. When Black people as a whole or women as a whole are discriminated against or hurt, Black women are denied rights. (For instance, when Blacks were given the vote, but women were excluded, Black women could not vote.)
Women have benefited greatly from civil-rights legislation and litigation when discrimination has taken the form of exclusion because of sex, especially in employment. When the patterns of sex discrimination resemble those of race discrimination, especially as they developed under segregation, civil-rights law offers remedies. But when injuries on the basis of sex are distinct and different-as, for instance, in systematic sexual abuse-there are no effective civil-rights remedies in law even though basic rights of citizenship and personhood are being denied or violated.
The legal history of women's rights in the United States is appalling.
Put in the simplest terms: women were the chattel property of men under law until the early part of the twentieth century. Married women could not own property because they were property. A woman's body, her children, and the clothes on her back belonged to her husband. When the husband died, another male, not the mother, became the legal guardian of the children. The body of a married woman belonged to her husband just as a slave's body belonged to the white master. A single woman was under the legally formidable authority of her father or other male relatives. Married women were what nineteenth-century feminists called "civilly dead." Single women sometimes paid taxes. No women had rights of citizenship. Women did not have a constitutionally protected right to vote until 1920.
The Fourteenth Amendment to the U.S. Constitution was ratified in 1868. The Fourteenth Amendment is unique in the Constitution. It is an equality-based amendment; it says that equality under the law is a right. The Fourteenth and the Fifteenth Amendments gave Black men the vote. The Fourteenth Amendment guaranteed citizens equal protection under the law. The Fourteenth Amendment intentionally excluded women. *Only in 1971 did the Supreme Court hold that women too were entitled to the equal protection under the law promised by the Fourteenth Amendment.
The banning of discrimination on the basis of sex in the Civil Rights Act of 1964 was a partial and mean affair. Trying to defeat the whole Civil Rights Act, racist Southern Congressmen proposed to add sex on a par with race to Title VII, the part of the bill designed to prohibit race discrimination in hiring practices. (Women were not included in the public-accomodations protections in 1964 or 1968.) This segregationist amendment adding sex was passed only because the Civil Rights Act could not be passed without it.
The segregationist amendment was a serious effort to defeat the bill. It outraged liberal Congressmen who wanted the 1964 Civil Rights Act to pass. It was intended to be-and was taken as-a massive and foul insult to Black people and to those in Congress who favored integration. It was widely regarded as a moral obscenity that demeaned the whole concept of civil rights.
The insult of the amendment was: saying Blacks could be equal with whites was like saying women could be equal with men, a transparent absurdity. The insult was: the inequality between Blacks and whites and especially the incapacities of Blacks were as natural, as normal, as biologically inevitable, as divinely ordained, as the inequality between the sexes and especially the incapacities of women. The insult was: Blacks, like women, are by nature servile and infantile; trying to elevate Blacks to some other level would be like trying to elevate women (and, by inference, children)-ludicrous, deranged. On the gutter level, the segregationists had, in effect, gone from calling those who opposed segregation "niggers" and "nigger lovers" to calling them all "pussy."
The conviction that women could have or should have any relief from civil inequality played no part in establishing this first legislative basis for sex discrimination as a violation of civil rights; and the conviction that women had a right to substantive and honest equality similarly played no role.
Most major advances in sex equality under civil-rights law-from affirmative action to redress for sexual harassment-have come from litigation, not legislation, though Congress subsequently affirmed a commitment to sex-discrimination law many times, especially in the 1970's.
Some of the legal rights that feminists regard as fundamental to women's civil equality have nothing at all to do with civil-rights law or sex discrimination. For instance, the right to abortion is considered a right of privacy under law, not an equality right. A man's right to have and use pornography in his home is protected under the same right of privacy, and the pornographers have been active in (1) keeping the two rights legally linked and (2) persuading feminist groups not to pursue the right to abortion as an issue of sex equality in law.
Also, it is no surprise that civil-rights law has not killed racism. It wounded its most protected social expressions but, with segregationists having enormous power in Congress and nearly two centuries of racism saturating the society, no one asked Blacks to make social policy that would correct socially pervasive debasement. Instead, there was a negotiation with America's segregationists, world-class racists by any measure. It is not just that there are limits to what law can do; there were serious limits to what this society would even consider doing. There still are.
In the job market, women have been forcibly excluded and forcibly segregated. The low status of women has been partly created and partly maintained through the exclusion and the segregation. Civil-rights law is used to fight the exclusion and the segregation in themselves and to fight the continuing bad effects of past segregation.
In the common fabric of everyday life, women are, in a sense, forcibly integrated, intimately integrated, with society organized so that women's sexual and reproductive capabilities have been controlled by men. Women have been kept out of the marketplace to be kept in the home, or kept in the bed, or kept in the kitchen, or kept pregnant. Social institutions, patterns, and practices force women to fulfill the sexual and reproductive imperatives of men.
Because so much of women's social inequality centers on forced sexual and reproductive compliance, the ways in which women are debased in rights and in personhood center on issues of bodily integrity, physical self-determination, and the social eradication of forced sex or sexual abuse. Systematic violations of women's rights to safety, dignity, and civil equality take the form of rape, battery, incest, prostitution, sexualized torture, and sexualized murder, all of which are endemic in this society now. These are acts of sex-based hate directed against a population presumed to be inferior in human worth. These are means of keeping women subjugated as a group with a low civil status and a degraded quality of life.
The second-class status of women is justified in the conviction that by nature women are sexually submissive, provoke and enjoy sexual aggression from men, and get sexual pleasure from pain. By nature women are servile and the servility itself is sexual. We are below men in a civil and sexual hierarchy that mimics the sex act. It is our sexual nature to want to be used, exploited, or forced. Sex equality is seen to violate the very natures of men and women, presuming a sameness where none exists; and violations of women are seen to be part of normal human nature, not the result of a coercive social system that devalues women.
Women need laws that address the ways in which women are kept second class: the institutional sanctions for violence and violation, de jure and de facto; the patterns of exploitation and debasement; the systematic injuries to integrity, freedom, equality, and self-esteem.
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