The civil-rights movement ended in success a generation ago, much as the anti-slavery movement, a century earlier, concluded with emancipation. We have been reluctant to let it go.
The most contested racial issues of today, involving interest-group politics among racially identifiable groups, are commonly dressed in the mantle of "civil rights." This is not because there is anything dishonorable about interest-group politics, but because "civil rights" makes a more attractive banner than, say, "proportional representation."
"The struggle continues," declared Jesse Jackson not long ago to 700 demonstrators in Augusta, Georgia. (The occasion was a rally in support of Georgia's policy of drawing congressional districts to facilitate the election of black candidates.) "We must never say 'the civil rights movement' in the past tense."
The refusal to distinguish yesterday's causes from today's may be rhetorically attractive, but it deprives us of needed perspective. Like the abolition of slavery, the realization of civil rights for black Americans was a monumental and irrevocable political achievement that revealed, at the very moment of success, a road ahead as arduous as the one that had just been traveled. Civil rights, "equality before the law," no more assured "equality in fact" than did emancipation. And this realization has been long and unwelcome.
The lingering expectation that lawyers and judges should be at the heart of the movement for racial justice reflects the experience of a century in which black Americans were denied even the strictly legal equality that the Constitution (with the addition of the Fourteenth and Fifteenth Amendments) appeared to guarantee. The evident contradiction invited a resolution by litigation.
Southern states (as well as Congress, in its government of the District of Columbia) provided public education in separate, unequal facilities. A combination of law and custom imposed segregated transportation. (The Interstate Commerce Commission appeared before the Supreme Court in 1950 to defend segregated train travel.) Hospitals, recreational facilities and prisons remained segregated; President Truman's orders desegregating the military and the federal civil service were issued only in 1948. Much of the Deep South, ignoring the Fifteenth Amendment, prevented black citizens from registering to vote.
This was the heroic period in American civil-rights law. For "civil-rights law" inevitably changed once civil rights were attained.
By the end of the 1960s, the NAACP Legal Defense Fund was pressing new demands -- for an "equality of results," measured by proportional outcomes -- that were inconsistent, in important respects, with its traditional arguments based on the principle of non-discrimination. The new course, set a generation ago, has led to an ever-widening divergence between the claims advanced in the name of "civil rights" and the older civil-rights ideal.
School desegregation cases after the mid-1960s, when the federal government finally moved against Southern intransigence, became the entering wedge of "race-conscious remedies." In 1954, Brown v. Board of Education had simply prohibited the assignment of school pupils by race. But In 1968 the Supreme Court interpreted Brown to require racial balance in formerly segregated school districts. A new meaning was given to the word "desegregation."
Similarly, in the area of employment discrimination, the federal courts effectively revoked the political compromises that had secured passage of Title VII in 1964, substituting for the congressional command of nondiscrimination a far more interventionist statute favoring the hiring and the advancement of women and minority workers.
It seems unlikely that significant progress toward racial equality will henceforth be the work of the courts. The reason is not that judges' politics have changed, but that the problems we now confront lie outside the judges' reach. Especially when they are enforcing constitutional rules, it is far easier for courts to prohibit action than to require it. It is easier, moreover, for a court to direct the reallocation of existing resources than to command the assembly and expenditure of new ones. Such tools were adequate when the problem in view was unequal treatment at the hands of government. They are of little use against social inequalities not attributable to present-day discrimination. So long as the problem of race was still the problem of civil rights, the political agenda was clear; but we cannot expect solutions of judges when we remain, ourselves, at a loss for what to do.
Seen from our present perspective, the most striking feature of the civil-rights arguments of 40 years ago was the reason most prominently advanced for the unconstitutionality of segregation -- the forceful contention that laws making a racial classification were constitutionally impermissible. In short, that the Constitution was color-blind.
The LDF's consolidated brief on the re-argument of the school-segregation cases, submitted in late 1953, announced as its first contention that "distinctions drawn by state authorities on the basis of color or race violate the Fourteenth Amendment." The argument was pursued: The Fourteenth Amendment "prohibits a state from making racial distinctions in the exercise of governmental power," reflecting "abhorrence of race as a premise for governmental action." Thurgood Marshall, Jack Greenberg and their colleagues urged the court to decide the school cases on the basis of "this court's basic premise that, as a matter law, race is not an allowable basis of differentiation in governmental action. . . . That the Constitution is color-blind is our dedicated belief."
Quotations in this vein might easily be multiplied. Jesse Jackson's version of the continuing struggle suffers by comparison with Martin Luther King Jr.'s. The beauty of civil rights as a political program was that it asked for nothing that it did not claim for everyone. In reorienting its political objectives from nondiscrimination to entitlements, the liberal position in racial politics surrendered the universality that was an attractive part of its moral claim.
Jack Greenberg remained the director of the Legal Defense Fund long enough to find himself picketed by the "Third World Coalition" at Harvard Law School in 1982, when he taught a course on "Racial Discrimination and Civil Rights." The objection was that he was not "a Third World professor." (The Harvard Black Law Students association found him "especially inappropriate" as an instructor because of "his adamant refusal to relinquish directorship of the NAACP Legal Defense Fund to a black attorney.")
Mr. Greenberg writes in his new book, "Crusaders in the Courts," that he "scorned" the boycott leaders for their "racist enterprise." He bristles when he recounts that the New York Times, reporting his appointment as LDF director in 1961, headlined the fact of his race, "the least relevant aspect of my persona."
The phrase is an uncanny echo of the way we used to talk. And yet, when Mr. Greenberg resigned in 1984, it was surely inconceivable that a white lawyer would succeed him as director of the LDF. Courses in race-relations law are regularly offered at Harvard Law School, but no white professor has taught them since Mr. Greenberg. Either the Third World coalition was slightly ahead of its time in 1982, or Harvard was slightly behind.
Something was gained, then, and something lost, in the change of attitude. The political and intellectual transformation reflected nothing less than a redefinition of the baseline of racial justice. Present-day demands for proportional entitlements are offered as merely the new phase of a continuing struggle for civil rights. But to equate the two causes is to ignore everything that has been gained, and everything that has been given up.
Andrew Kull is the author of "The Color-Blind Constitution." This article first appeared, in longer form, in The New Republic.