Copyright © 1999 by Paul F. deLespinasse, Adrian College
For details of generous permission to copy or
link, click here. Document may not print if you have not
clicked here first.
"The thing that he was about to do was to open a diary. This
was not illegal (nothing was illegal, since there were no longer
any laws), but if detected it was reasonably certain that it would
be punished by death, or at least by twenty-five years in a
forced labor camp." George Orwell, 1984
The main goal of the civil rights movement was unequivocally a good one. As we will see, the movement vigorously propelled America forward along the same road that has always been the main route to progress. The movement employed methods that were entirely and properly reformist rather than revolutionary. These methods were well chosen to maximize the results gotten by the movement, working within the very unfavorable circumstances that confronted it during its formative years.
Understanding why so much of the early civil rights movement was entirely progressive will prepare us to see the problems with the line that the movement later crossed.
Generalizations about "the" civil rights movement are, of course, risky. The movement was in fact characterized by great diversity. But it is at least possible to come to some general conclusions about the main stream of the movement.
The chief goal of the mainstream civil rights movement was to eliminate all pseudolaws requiring private actors or government itself to treat people on the basis of their race. These pseudolaws were the backbone of racial segregation.
Pseudolaws, which impose sanctions on people who have not been convicted of violating a general rule of action, are the essence of a class society. As John Marshall Harlan explained it in his dissenting opinion in Plessey v.Ferguson:
... in view of the constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law.
Unfortunately, the majority of the 1896 Supreme Court did not agree with Harlan.
Martin Luther King was referring to a class society when he wrote from the Birmingham jail cell:
An unjust law is a code that a majority inflicts in a
minority that is not binding on itself. This is difference made legal. (Footnote 1)
I differ from Dr. King only in that I do not concede that the unjust codes he refers to rise to the dignity of law at all. In my book, such abominations are pseudolaws, not laws.
It has often been pointed out that all laws "classify." That is to say, all laws put some things into one category ("class") and other things into another category, and then treat the two classes thereby created differently. Murderers need not be treated the same as non-murderers, those who pay their taxes need not be treated the same as people who don't pay. But to say that some classifications in laws are acceptable and tolerable is not to say that all possible classifications are acceptable. For one thing, we need to identify just what it is that has been classified.
We are defining law as general rules of action enforceable by sanctions. Actions, then, can be classified and different types of actions can be treated differently. A person who has taken the action of murdering someone can be treated differently than someone who has never murdered someone. Likewise someone who has not paid his taxes can be treated differently from someone who has paid up.
But to say that it is legitimate to classify actions and base our treatment of individuals on how they have acted is not to say that we can employ other kinds of classifications in the law. Laws, for example, cannot classify people. Rules which classify people into black and white, men and women, old and young, rich and poor, etc., and proceed to treat people in the resulting different classes differently, are not laws. They cannot be laws, because they are not general rules of action. Even if action is a necessary element before such a rule allows punishment, it is not a law. A rule that black people can be jailed for spitting on the sidewalk is not law even though no punishment can be inflicted unless the action of spitting has taken place. In effect, such rules preclassify people instead of just classifying them on the basis of their actions. Only people in the disfavored preclassification can be punished if they take the prohibited action.
"Laws" which discriminate, that is which provide different government treatment for people based on preclassification or which require private actors to discriminate, are not laws at all. They are pseudolaws. Since the essence of the civil rights movement lay in its attack on these pseudolaws, the movement could quite properly have been described or described itself as an "antidiscrimination" movement.
The civil rights movement's goal of getting rid of pseudolaws singling out black people was entirely compatible with the main road to political progress which can be traced back for many centuries. Indeed, the movement's attack on these pseudolaws helped to push the United States a considerable distance forward along the main road.
The main road has led us from protogovernments, mere protection rackets that were indistinguishable from organized crime, toward legitimate governments which offer protection without any racket. The main result of traversing this main road has been a continuous reduction in government's ability to treat people high-handedly and arbitrarily. If government officials can impose sanctions only on people convicted of violating a general rule of action, their ability to kick around arbitrarily selected people is greatly limited. People can protect themselves from punishment by refraining from taking legally prohibited actions. The officials' power to decide which actions will be illegal is a considerable one, but the rules prohibiting these actions will not be outrageous as long as the same rules have to apply to everybody, including those who make the rules.
Progress thus consists of replacing pseudolaws with genuine laws. As we move from the original protogovernments to modern governments, we observe fewer and fewer pseudolaws and more and more laws. The ultimate possibility is a government which employs no pseudolaws and which rules in the interest of everybody. This fully legitimate government will be in total contrast with the original protogovernments which pursued strictly the interests of the rulers.
Another way to describe historical movement along the main road to progress is to speak of the extent to which the political system is "inclusive." What percentage of the population participates in the ruling organization or in controlling it? What percentage of the population constitutes the people whose interests are taken into account by the rulers? The original protection rackets were participated in by only a few individuals and made their decisions based solely on the welfare of the racketeers themselves . An ideal society, which we have not yet reached, would be totally inclusive and fully participatory.
Certainly a striking thing about the mainstream civil rights movement was its call for inclusiveness. The movement pointedly did not join with the militant black leaders who called for secession and independence for a blacks-only government.
As we have already noted, the civil rights movement properly rejected revolutionary goals. It did not advocate separatism or secession, goals which could have been attained only by using revolutionary methods. And it was on very sound historical ground in avoiding resort to revolutionary methods.
First of all, revolution would not have been expedient. The black people in the United States were greatly outnumbered. There were ten or twelve white people for every black person in the country. And there was not even one state in which black people constituted a numerical majority. If black people had risen in overt revolt against the system, they would have been crushed. If mainstream black leaders had considered revolutionary action, they would have backed off quickly when they understood that revolt would be suicidal.
But revolution was not merely inexpedient under U.S. circumstances. Our understanding that government can be traced back to pure protection rackets, which spring up spontaneously in any "state of nature," strongly reinforces a conclusion that many leading political philosophers have come to: under any circumstances revolution is a very bad idea. The original protogovernments are all racket and no protection. Once they are established, though, a dynamic process leads to gradual improvement brought about by intelligent, sustained resistance to their more outrageous aspects. Genuine laws begin to displace pseudolaws.
Revolution disrupts all this progress. I am speaking here, not of minor coups d'etat which merely replace a few key leaders at the top of a system with other key leaders, leaving the government machinery unscathed. A real revolution destroys an existing government. No matter how bad that government was, it was undoubtedly much better than it (or any other new government) was when it first came into existence. Intelligent, prolonged resistance gradually puts limits on the damage that rulers can inflict on people. But when an existing government is destroyed, all of the improvements that have been made in it are also swept away. The clock is turned back to the beginning. A "state of nature" is reestablished. The whole unhappy game begins all over again! As always, nature abhors a vacuum, and the state of nature is the political equivalent of a vacuum. Once again, an excellent opportunity exists for a few individuals to join together, form an organization, set up a protection racket, and live well without having to work.
The prehistorical periods when the protection rackets ultimately leading to government first appeared are not available for us to observe. We infer what must have happened by applying reason to what we know was going on more recently. The fact that revolutions have continued to occur right up to the present day enables us to observe the equivalent of these prehistorical situations. For example, the relatively non-violent nature of the 1991 destruction of the Soviet Union should not distract us from noting that this was a genuine revolution. A political system stopped working and disappeared. Although part of the resulting vacuum was filled by more or less ongoing governments at the union republic level, the Soviet government had been so highly centralized that these regional governments had little experience in actually governing. If there was not an anarchy de jure in the former Soviet Union, there certainly was an anarchy de facto. What was the result? As has been widely noted, organized crime sprang up rather independently in widely separated parts of the former union. In many parts of the country even as these words were written in 1997, people felt that protection purchased from these "mafias" was more dependable than protection supposedly furnished by the organizations styling themselves "governments."
Conditions in many other twentieth century countries testify that it is perverse to try to cure even gross defects in an existing government by destroying that government. It is perverse to place oneself in a position where it becomes necessary to reinvent the wheel; it is even more perverse to create conditions where we have to establish a brand new government and then set about constitutionalizing it from the ground up.
It must be remember that slavery arose during a time of very weak government in America. During the colonial period local governing institutions had little power and major decisions had to be referred to England, which was months away by the fastest available communications. Weak government also prolonged the existence of slavery after independence and formation of the United States. If abolitionists had succeeded in destroying the government of the U.S. in 1840 because it tolerated the evils of slavery, it would have produced an even weaker and more unsatisfactory government and would thus have impeded rather than advancing achievement of their goal.
Weak government also helped prolong the residue of slavery during the years after the Civil War. Destroying the U.S. government in 1890 because of its bad qualities--and they were many, especially as perceived by black people!--would still have been political madness.
It is true that the rulers who are special beneficiaries of the injustices committed by bad governments will be hurt by any revolutionary overthrow of their government. Few will shed tears for their fate. But this will be scant consolation for the people who were being oppressed by those rulers before their overthrow, for the oppressed too will be gravely damaged. Contrary to Karl Marx's famous dictum, even the oppressed have a lot to lose besides their chains. (Footnote 2) Only people who are more interested in revenge against their oppressors than they are with furthering their own self interest and that of their children will find revolution appealing.
Social and political progress has always been the result of reforms rather than of revolutions. One must strive to get rid, not of governments which are bad, but of the bad aspects of existing governments. Such selective destruction is inherently a reformist process, not a revolutionary one. The American civil rights movement was very wise to opt for reformist rather than revolutionary methods.
An important early decision made of the civil rights movement was to pursue reforms via the courts rather than through the legislatures of the country.
There were several reasons why legislatures were not a promising venue for civil rights reform. First and foremost, legislatures are sensitive to the interests of their electorates, and very few black people were voting in the early days of the civil rights movement. Voting correlates highly with socio-economic status, and black people were concentrated at the low end of the distribution of that kind of status. In addition, pervasive discriminatory treatment by government had prevented black people from voting ever since the end of the Reconstruction period. Poll taxes--a flat amount unrelated to the voter's income--placed a special burden on voting by poor people, and most black people were poor. Even honestly administered literacy tests would have been a special problem for black voters, who averaged lower amounts of formal education than the general population. But literacy tests were usually not honestly administered; instead, white voters were rarely turned away no matter how illiterate they were, while black Ph.D's would solemnly be declared ineligible.
In some southern states there were white-only primary elections in the Democratic Party, until the Supreme Court found this particular institution unconstitutional. And finally, and not least, there was raw, unconcealed terror brandished by the Ku Klux Klan and other groups against black people who managed to get registered to vote. It was no wonder that there were few black voters until the civil rights reforms were well under way and the Voting Rights Act of 1965 was enacted by Congress.
Legislatures, then, were almost entirely elected by white voters and responsive to their interests. White voters were usually not very interested in civil rights, and they tended not to worry very much about the plight of black people. And of course some white voters were actively hostile to black people.
At the state level, legislative remedies for civil rights problems were especially unavailable precisely in the south, the part of the country where most black people lived and where their problems were most acute. Of course state law is trumped by valid federal laws, but prospects for getting help from the U.S. Congress were not much better than they were from southern state legislatures. The South was still solidly under the control of the Democratic Party, as it had been since the end of the Reconstruction period. Under one-party conditions, southern representatives in Congress tended to be reelected year after year. They found it easier to build up seniority than did congressmen from other parts of the country, where voters would shift from time to time from supporting one major party to supporting the other.
The "seniority system" inside Congress placed the most senior members in committee chairmanships and other key leadership positions, and southerners therefore held a high percentage of these jobs. As a result, even if a national majority had favored legislation desired by the civil rights movement, the legislation would have had little chance of running the gauntlet of the committee system within Congress. And of course, the same lack of concern and interest among white constituents that influenced state legislators also applied to congressmen.
As a venue for civil rights progress, the federal courts presented a completely different and much more favorable situation. Federal judges serve for life. They never have to worry about re-election or reappointment, and their salaries cannot even be reduced. Thus judges pay little personal price for making unpopular decisions. For the civil rights movement, this was a great advantage.
Further, the courts were the main locus of principled decision making in the American political system. Judges are not supposed to do what they personally feel like doing when they decide cases. They are supposed to decide the cases on the basis of rules stated in the Constitution, statutes enacted by the legislatures, administratively-made rules, previous court decisions dealing with similar issues, and principles of judicial decision gradually discovered and articulated by the previous courts. So even if judges were personally uninterested in civil rights or even hostile to them, doctrine called for them to decide their cases on the basis of the relevant principles. Unless the principles themselves incorporated racist elements, this requirement was a good omen for the civil rights movement.
Actually, there were both racist and non-racist principles to be found in American law at the beginning of the civil rights movement. A number of statutes, especially but not entirely in the south, specifically required racial segregation in various commercial and educational situations. There was even one judicially-created principle--that legislation requiring separate facilities for black and white people does not violate the Constitution if those facilities must be "equal"--dating from Plessy v. Ferguson in 1896.
But other elements of American law were excellent assets for the civil rights movement. Chief among these were the three post-Civil War amendments to the federal Constitution: 1. The Thirteenth Amendment: prohibiting slavery and involuntary servitude; 2. The Fourteenth Amendment: granting citizenship to the former slaves and requiring each state to guarantee "due process" of law and "equal protection of the laws"; 3. The Fifteenth Amendment: prohibiting denial of the right to vote on grounds of race. These amendments were especially valuable because of a judicially-invented principle that legislative acts (statutes, etc.) which conflict with the Constitution must not be enforced by the courts---the doctrine of judicial review. This meant that if judicial decisions in favor of civil rights were blocked by legislation, the courts could declare the legislation unconstitutional.
Finally, the whole purpose of courts is to decide specific cases on the basis of law, and it turned out that the civil rights movement had the whole underlying concept of law on their side. If law is defined as a general rule of action enforceable by sanctions, and generality is understood to mean that the same rules must apply to everybody's actions, then the self-contradictory nature of "Jim Crow law," indeed of all rules enforced by sanctions which discriminate among individuals on the basis of their race, is self-evident. Laws can classify actions and treat people who have taken different actions differently. Laws can classify situations and treat people who take the same actions in different situations differently, as long as they treat everybody who acted a certain way in the same situation the same way. Different individuals may end up in different categories when laws are applied to their actions, but laws cannot directly classify people because classifying people is incompatible with the principle of generality. Here was a principle which got to the nitty gritty of civil rights, and it was one which courts were uniquely in a position to invoke in support of their decisions.
The civil rights movement, which really got moving after World War II, also was the beneficiary of some good luck. During the Cold War between the U.S. and the Soviet Union, Soviet propaganda made very effective use of the racial situation inside the United States. To some extent, racial injustice could be used to attract black people to become members of or fellow travelers with the Communist Party of the U.S.A. Unlike right-wing totalitarian movements, the left-wing movements have not tended to be racist; they have often been militantly anti-racist, especially in their rhetoric.
But an even bigger Soviet deployment of propaganda based on racial injustice in the U.S. was directed at people in the "third world" of Latin America, Asia, the Middle East, and Africa. These countries were generally aligned neither with the U.S.S.R. nor with the United States, but both Cold War superpowers competed for support from the regimes in these countries, which often had important strategic minerals, ports which might make excellent naval bases, votes in the United Nations, etc. Since the populations of many of these countries were non-caucasion, the bad treatment of black Americans could be used very effectively by Soviet propaganda to give the U.S. government a bad image in those parts of the world. The propaganda was all the more effective because it was largely based on truth.
Racial injustice at home thus posed serious problems for U.S. governmental relations with major parts of the world and gave an urgency to doing something about that injustice even for officials who were not very concerned about it in its own right.
The historical period right before the beginning of the Cold War also served to help the cause of civil rights. During World War II the Nazi's racism and extreme cruelty against the Jews and other minorities in occupied parts of Europe had been intensely criticized by U.S. and allied wartime propaganda. Americans had to be told why the regimes they were fighting against were bad, and Nazi racism was certainly a major element in that badness. The criticism of the Nazis made continued toleration of racism inside the U.S. much more difficult, especially in a country whose historical roots in the Declaration of Independence declared bravely that "all men are created equal." In fact, the first major efforts by the federal government to end segregation had come during World War II. Executive orders tried to force contractors doing business with the government to stop racially discriminatory employment practices and there was even some effort to stop racially discriminatory employment practices by federal government agencies. However it was not until the Truman administration, after World War II and during the Cold War, that U.S. military forces were ordered to stop segregating fighting units along racial lines.
An interesting picture of government was drawn up some decades ago by the philosopher P.J. Proudhon:
"To be governed is to be watched, inspected, spied upon,
directed, law-driven, numbered, regulated, enrolled,
indoctrinated, preached at, controlled, checked,
estimated, valued, censured, commanded by creatures who
have neither the right nor the wisdom not the virtue to
do so. . . . It is, under pretext of public utility, and
in the name of the general interest, to be placed under
contribution, drilled, fleeced, exploited, monopolized,
extorted from, squeezed, hoaxed, robbed; then, at the
slightest resistance, the first word of complaint, to be
repressed, fined, vilified, harassed, hunted down,
abused, clubbed, disarmed, bound, choked, imprisoned,
judged, condemned, shot, deported . . . .(Footnote 3)"
Although Proudhon's words do ring quite a few bells with people who are familiar with governments, they do not quite present the whole picture. What he is describing is a government which is still far short of ideal, but which is also at a much higher level than an original government (or protogovernment).
A protogovernment, after all, would not bother to pretend to be benefiting "public utility" or the "general interest." A protogovernment merely tells people to do as they are told, or else! "Hypocrisy," it has been said, "is the worship that vice pays to virtue." And a claim to be furthering the "general interest," whether it is true or merely hypocritical, would be neither conceivable nor necessary before people began to gain an understanding of the concept of such a general interest as something that a government might and should promote.
When we examine the works of the leading political philosophers from Plato to the drafting of the Constitution of the United States of America in 1787, we find an amazing consensus about the nature of good government. But we only find it if we look for the essence of their arguments, which is usually submerged in a sea of particulars which express infinite variety rather than agreement.
Early on, Plato and Aristotle expounded the idea that there are six basic kinds of government, three good kinds and three corresponding bad kinds. According to them, governing power may be in the hands of one person, or of a few people, or of many people. Monarchy is good government by one person, aristocracy is good government by a few people, and polity is good government by many people. The related bad forms are, respectively, tyranny, oligarchy, and . . . democracy! (But we must remember that the word "democracy," to Aristotle at least, smacked of "mob rule.") The interesting point here is the basis for distinguishing the three good forms from the three bad forms of government. Good government rules, not in the interest of those who rule, but in the general interest. In bad governments, by contrast, the ruler or rulers govern merely in their own interest, not in the general interest.
It is notable here that the bad forms of government sound precisely like the original protection rackets, or protogovernments, which were formed merely to enable the racketeers to live well without having to work.
St. Augustine, another influential political philosopher, once commented that "Justice being taken away, then, what are kingdoms but great robberies?" (Footnote 4) Augustine thus contrasts legitimate governments, those which do justice, those which govern in the general interest, from pure protection rackets which are indistinguishable from "great robberies" conducted for the exclusive benefit of the robbers.
St. Thomas Aquinas in his turn defined as "law" measures whose purpose was to promote the general welfare. Rules which fell short of this definition were not to be considered law at all and had little or no claim to obedience.
John Locke and Jean Jacques Rousseau, likewise, were very careful to require that law serve the general interest of the community. And they added a requirement that law be the same for all people in the community, perhaps perceiving that rules applying to all are less likely to be oppressive than rules which exempt the rulemakers or other favored elements of the society from their prohibitions. Rousseau threw in the additional requirement that the laws not only be general in their application but also that they be general in their "origin." His laws, defined as expressions of a two-dimensional "general will", thus not only prohibited what we are calling pseudolaws but also required that political systems be democratic.
As we progress from Plato to modern philosophers, their increasing precision in defining law was aimed at making it more likely that government will be good as Plato and Aristotle conceived it: conducted for the benefit of everybody, not just for the benefit of the governing officials.
Finally, in the Federalist Papers [Number 51] published originally in the New York newspapers to urge ratification of the new Constitution of 1787, we find the following key words:
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on government; but experience has taught mankind the necessity of auxiliary precautions."
This interesting passage shows a sophisticated understanding of the same concerns reflected by leading philosophers all the way back to Plato---how to avoid an abusive, exploitative government. Even democracy ("dependence on the people") is not an adequate guarantee, since the majority who speak for "the" people may govern in its own interests rather than that of all the people, just as Plato and Aristotle feared. The rule of law and the movement to exterminate pseudolaws would be an important example of the "auxiliary precautions" which the Federalist thought were necessary in addition to democracy.
The whole trend in mainstream western political philosophy was thus towards non-arbitrary, inclusive government, with a broadening definition of inclusiveness and a sharpening realization that the rule of law is a necessary means to securing rule on behalf of the general interest.
At the beginning of the 1960's the civil rights movement appeared to be well on its way to a complete political and moral victory. Its main goal was an excellent one, firmly grounded in two thousand years of mainstream western political philosophy: an inclusive society, democracy, rule by law rather than by pseudolaw. Everything that the movement stood for was compatible with the requirements of continued forward movement along the historical main road to political progress. The movement had captured the moral high ground, an excellent location from which to fight.
Better yet: the civil rights movement had considerable political assets. The anti-racist posture of the United States against Nazi Germany in World War II and the need to maintain good relations with "non-white" countries in the Third World during the Cold War gave domestic racial reforms an urgency that could be and was put to good use by the movement. Development of television brought the especially terrible position of black people in the south to the national attention in a way that was hard to ignore.
Finally, the courts were beginning to realize the opportunity they had to deliver black people from oppressive pseudolaws by using their power of judicial review. With the Fourteenth Amendment equal protection clause as the major premise, and judicial review of federal and state rules as the minor premise, the days of racially-based pseudolaws were clearly numbered. The racist jig was up, or soon would be! Best of all, by striking down racially-based pseudolaws the courts would have benefited everybody, not just the black people, by continuing our travel forward along the main road to political progress, the road from pseudolaws to law, from protection racket to protection, from organized crime to a fully legitimate government, from exclusion to inclusion.
The race relations millenium, thus, appeared in 1960 to be merely a matter of time, and not very much time at that. The necessary corner had been turned with the decision of Brown v. Board of Education in 1954, and once the inevitable foot-dragging by conservatives and institutional inertia had been overcome, the movement's triumph was--so it seemed--assured.
Unfortunately, things did not work out exactly as it appeared that they would when the civil rights movement surveyed the country in 1960. Within a few years, the movement had lost its way. With the help of the civil rights movement, the United States was about to make a major wrong turn.
__________________________________
1 Letter From Birmingham City Jail (1963).
2 Marx and Engels unwittingly contradict themselves in the Communist Manifesto (1848). At the end of their essay they proclaim that "The proletarians have nothing to lose but their chains." But at the beginning of the same work they note that in fights between classes the result is either "a revolutionary reconstitution of society at large or ... the common ruin of the contending classses."
3 P.J. Proudhon, General Idea of the Revolution in the Nineteenth Century.
4 City of God, Bk. IV.