PART ONE CONSTITUTIONAL BACKGROUND OF CIVIL RIGHTS CHAPTER I. THE SPIRIT OF OUR LAWS I confess that in America I saw more than America; I sought there the image of democracy itself. . . . —ALEXIS DE TOCQUEVILLE. ... The first question before the United States Commission on Civil Rights is: What are civil rights in the United States? They are, by definition, the rights of citizens, though under the Constitution many of them extend to all persons. A study of civil rights should center around the question: What does it mean to be a citizen of the United States? In the assignment of this Commission, Congress indicated that its first concern is with the right of citizens to vote and the right of all persons to equal protection of the laws. These rights are the very foundation of this Republic. They did not arise suddenly in current civil rights controversies or in the so-called Civil Rights Amendments added to the Constitution after 1865 or even in the Bill of Rights of 1791. They are implied in the original Constitution itself, in its very first words and in its provisions for representative government and the rule of law.* Therefore, the Commission, in order to understand the fundamental principles involved in securing these rights, had to review more than the opinions of the Supreme Court. The best commentary on the Constitution is the whole history of the Republic. The Declaration of 1776 recognized as the first principle of our independence that all men are created equal. EXCEPTION TO THE STATEMENT OF THE CONSTITUTIONAL BACKGROUND OF BY VICE CHAIRMAN STOREY AND COMMISSIONERS BATTLE AND CARLTON We take exception to this and all succeeding passages to the effect that a provision on the equal protection of the laws properly may be implied in the original Constitution itself. Such assertions ignore historical fact and disregard the development of Constitutional law pertinent to recognition of the human dignity of the individual in our democratic society. 1. The Declaration of Independence explicitly stated the principle "that all men are created equal" in justification for the revolutionary overthrow of the existing general government of the American colonies. 2. The first document of the new general government as independence was achieved was the Articles of Confederation of March 1, 1781. In the sole refer For our Founding Fathers the principles of the Declaration were established by "the Laws of Nature and of Nature's God." That all men are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that EXCEPTION TO THE STATEMENT OF THE CONSTITUTIONAL BACKGROUND OF ence to legal recognition of individual rights in this document, the fact of in- 3. At the time the Constitution was drafted, the discussion of development of the suffrage which appears elsewhere in this Report, and the compromise on slavery demonstrated that the principle of equality was not made part of our fundamental law. 4. There is no provision requiring "equal protection of the laws" anywhere in the original Constitution, nor in the first ten Amendments, which safeguard certain rights of the individual against encroachment by the Federal Government alone. 5. A proposed Amendment which used the word "equal," was refused by the Senate and never submitted for ratification by the States. It read: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State." (The Constitution of the United States of America, Senate Document No. 170, 82d Congress, Second Session, at p. 750.) 6. "Equal protection of the law" became part of our fundamental law in 1868 upon ratification of the Fourteenth Amendment. It is a limitation upon State action and, also unlike the rights guaranteed by the first ten Amendments, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." We are prompted to make this exception out of concern that the object-lesson to be gained from study of an accurate account not go unnoticed in a text which, in our opinion, so overemphasizes the statement of the principle of equality that actual practice is submerged. Parallel patterns teaching the same object lesson are noted: the development of the suffrage in America, discussed elsewhere in this Report; the fact that 82 years elapsed between enactment of the last civil rights legislation and the Act of 1957 by which this Commission was created. The object lesson is this: Declaration of the principle of the equality of all men under law was revolutionary, but its realization in practice and experience has been evolutionary. 7. Finally, an explanation of the terms "civil liberties" and "civil rights" may be helpful. While we recognize these expressions-"civil rights" and "civil liberties" are used interchangeably, there are historical and legal differences. "Civil liberties" are those rights derived from the United States Constitution which may be asserted by citizens against both the State and Federal governments. These include freedom of religion, press, speech, and assembly which are set out in the First Amendment and a part of the Bill of Rights. They are wholly free of government action. After the adoption of the Fourteenth Amendment in 1868, the other individual rights, protected against State action with supplementary enforcement powers granted to the Federal government, are "civil rights." The right of the ballot is the best illustration. to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed-these "truths" were, in Jefferson's earlier draft, declared to be "sacred and undeniable." Benjamin Franklin amended the draft to read simply "We hold these truths to be self-evident." Insofar as was deemed practicable, the Constitution embodied these truths in the first principle of our self-government, that We the People rule. But to achieve the more perfect union of 1787 the framers of the Constitution found it necessary to accept human slavery. For purposes of apportioning representation in Congress a slave was considered three-fifths of a person, and Congress was not to have the power to prohibit the importation of slaves until 1808. This contradiction between the sacred and self-evident truths of 1776 and the compromise of 1787 so shocked Virginia's delegate George Mason that he refused to sign the Constitution and, with Patrick Henry, led the fight in Virginia against its ratification. The gap between the great American promise of equal opportunity and equal justice under the law and its at times startingly inadequate fulfillment in practice has thus been a major-and probably a creative-factor in American history from the beginning of the nation. The conflict between those who would extend the republican principle to all men and those who would limit it to some men or who would delay its application has produced a tension in the minds and hearts of Americans and in American laws that is with us still. The grand design of the Constitution was to provide machinery through which such conflicts could be resolved by reflection and choice, with the consent of the governed. Because Madison, an opponent of slavery, decided that the Constitution provided adequate machinery to do this, he became one of its foremost champions in writing many of The Federalist papers. He urged the people of Virginia and other States to ratify the Constitution and to seek to perfect it through constitutional amendment. Many Americans, including Jefferson and Mason, were unhappy that no specific bill of rights had been included in the Constitution. But the framers were aware that eight of the thirteen States had already adopted bills of rights and that all of them had a republican form of government. Because the Federal Government was itself to be republican in form and limited in its powers and because its constituent parts were assumed to be republican, the majority of framers saw no necessity for an additional Federal bill of rights. This assumption of the republican nature of State constitutions and of the equal justice provided by the common law was to a large extent justified. As James Bryce reminds us, the framers of the Constitution were fitting a keystone in an almost completed structure, The federating States were not only little republics in themselves, but inside most of them were free cities and townships already operating on democratic lines. These principles were embodied in the covenant on the Mayflower in 1620, in other social contracts of the early colonists, and in the New England town meetings that gave birth on this continent to the idea of universal suffrage. The historical roots of our civil rights go even deeper. The town system of local selfgovernment, like most of our rights and liberties, stems from the evolution of Anglo-Saxon common law and from early English revolutions. With the American Revolution, says De Tocqueville, "the doctrine of the sovereignty of the people came out of the townships and took possession of the state." Recognition of the right to equal protection of the laws or equal justice under law is at least as old as the right to vote. In Magna Carta the cities, boroughs, and towns were not only promised their liberties, but King John promised that "to none will we sell, deny, or delay right or justice." The assumption that State and local governments would secure and protect the civil rights of citizens of the United States, including the right to vote and the right to equal justice, is reflected in a number of provisions of the Constitution. When the Founding Fathers provided that the Federal House of Representatives "shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," it was understood that each State had such an elected legislature and that, with certain property and other restrictions, the People were in each State the Electors. To make sure that all States would follow the principle of government by the consent of the governed, the Founding Fathers provided that "The United States shall guarantee to every State in this Union a Republican Form of Government. . . ." And as an additional safeguard they provided that: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. . . . ... This is not to suggest that the right to vote has ever been unqualified or that the Constitution intended to make popular suffrage in free elections the only principle of our government. On the contrary, the President was to be selected indirectly by an Electoral College, the Senate was selected by State legislatures, and the members of the Supreme Court were not to be elected at all but appointed by the President. It was understood then as now that States could establish reasonable restrictions on the right to vote. But the People, so de |