Jeffery A. Jenkins and Justin Peck
Jeffery A. Jenkins and Justin Peck, Building Toward Major Policy Change: Congressional Action on Civil Rights, 1941-1950, 31 Law and History Review 139 (February, 2013)(280 Footnotes)
The mid-1960s witnessed a landmark change in the area of civil rights policy in the United States. After a series of tortuous internal battles, with Southern legislators using all available procedural tools to maintain their states' discriminatory Jim Crow legal systems, the United States Congress adopted two statutes--the Civil Rights Act of 1964 and the Voting Rights Act of 1965--which insured civil and political equality for all Americans. The Acts of 1964 and 1965 were the culmination of a decade-long struggle by black Americans to secure the citizenship rights that had been denied to them for more than a half century. Beginning with the Brown v. Board of Education (1954) Supreme Court decision, the civil rights movement built momentum, as formal organizations like the National Association for the Advancement of Colored People (NAACP) grew in strength and informal (grass roots) organizations spread throughout the South and the Nation. As national public opinion shifted increasingly toward providing new civil rights guarantees for blacks, Congress responded with new legislation: the Civil Rights Act of 1957 (the first civil rights law since 1875), the Civil Rights Act of 1960, and a legislative proposal to prohibit the poll tax in 1962 (which would be ratified by three-quarters of the states in 1964 and become the 24th Amendment to the United States Constitution).
It has been a common strategy for scholars working on the civil rights movement to start with the Brown decision and follow the course of political events through the Acts of 1964 and 1965 (and beyond). And this strategy has been reasonable, as obvious changes in the national political environment were occurring in the mid-1950s and building toward the end of the decade. However, like legal historians Risa Golubuff, Kenneth Mack, and others, we argue that establishing a baseline (or starting point) near 1954 obscures prior pertinent events that affected the types and trajectories of subsequent political actions. Whereas legal historians highlight the important work of civil rights advocates in the years preceding Brown, we concentrate on the important legislative battles that took place during the 1940s, which-presaged the legal victories of the late 1940s and early 1950s.
It is true that the events of the early 1950s reinvigorated the civil rights agenda and helped set the stage for the “classical” era of the 1960s, but concerns about race and black Americans' rights had not vanished entirely from the national agenda with the end of Reconstruction. The president and Congress were confronted with civil-rights-related issues at various points between 1891 and 1940, and a series of consequential decisions were made that affected not only the course of civil rights in the nation but also the way the parties lined up on the issue and how black voters responded to the parties' positions. Moreover, the following decade--the 1940s--was an especially crucial “bridge period” between the nascent civil rights era of the earlier half-century and the full-fledged civil rights movement of the 1950s and 1960s. Specifically, the 1940s represented a trial run for those who would continue to advocate for civil rights in subsequent decades.
In this article, we focus on two particularly important dynamics. First, we examine the process of partisan “sorting out” on civil rights issues that first began in the late 1930s. Here we contribute to an ongoing debate over the timing of the Democratic Party's embrace of what would become known as the “civil rights agenda.” Like those legal historians who have noted the importance of legal decisions preceding Brown, we suggest that the partisan racial realignment took place long before the passage of landmark civil rights legislation in the 1960s. Second, we argue that the record of legislative defeats during the 1940s helps to explain why, civil rights advocates came to see the courts and executive branch agencies as the venues most likely to ensure continued progress in the cause of racial equality. In this way, therefore, we set the scene for the “turn” to the courts by demonstrating that the legal strategy emerged as a consequence of multiple failed efforts to pursue legislative remedies.
To investigate how the civil rights issue evolved during the 1940s, we choose Congress as our level (or focus) of analysis. We do so for reasons of both tractability and substance. Clearly the president and the courts played an important role in the civil rights debate during this decade. For example, Franklin Delano Roosevelt unilaterally instituted fair employment practices in the national defense industry (Executive Order 8802) in 1941, the Supreme Court declared the white primary unconstitutional in 1944 (Smith v. Allwright), and Harry Truman desegregated the federal work force (Executive Order 9980) and the armed services (Executive Order 9981) in 1948. However, it is fair to say that the most lasting victories of the civil rights movement were statutory: the Acts of 1964 and 1965 (and their subsequent enforcements and extensions) swept Jim Crow style discrimination away once and for all. As such, charting the course to these victories is crucial for a full understanding of how the civil rights issue developed over time. Other actors, such as the president, enter the drama at various points--for example, on “fair employment,” which will be covered in detail--and we will describe their contributions when appropriate. But to study statutory evolution on civil rights requires a concentrated focus on Congress.
This work builds on our earlier research, which examined the 1891--1940 era in detail. As we documented, the last decade of the nineteenth century and the first two decades of the twentieth century saw little attention paid to civil rights, as black citizens were not in a position to be electorally pivotal and therefore were largely ignored by national politicians. In the 1920s and 1930s, following the first great migration, the growing black population in the North, led by emerging civil rights groups such as the NAACP, forced civil rights gradually back onto the national agenda. The focus during these decades was antilynching legislation. In the 1920s, the Republicans promoted the issue, but by the 1930s, the Democrats had become the chief sponsors. In each case, antilynching legislation was passed in the House (in 1922 under the Republicans; in 1937 and 1940 under the Democrats), only to run into a filibuster in the Senate led by Southern Democrats. Other interesting variation included: (1) a bare majority of Northern Democrats in the House supporting antilynching legislation as early as 1922, and (2) a significant majority of Republican senators twice opposing a cloture motion that would have forced the Senate to consider the House-passed antilynching legislation in 1938.
Therefore, as the decade of the 1940s dawned, some political uncertainty existed in Congress. A partisan realignment on civil rights was well underway by the late 1930s, as Northern Democrats had become the champion of black interests, even as the Parry's Southern wing actively opposed such reform efforts. Republicans continued to mostly support civil rights initiatives through the 1930s, but solid support from the “Party of Lincoln” could no longer be taken for granted, as the cloture votes in 1938 indicated. This was important, as Republicans would often find themselves as the pivotal coalition in congressional voting on civil rights during the 1940s. With Northern and Southern Democrats lined up on opposite ends of the issue, Republicans were in a position to behave strategically--supporting or opposing civil rights legislation depending upon the electoral benefits/costs involved.
For a time, civil rights advocates hoped for the best from the Republican Party, and devised a legislative strategy around winning support from Republicans and Northern Democrats. With the continued emergence of a ““conservative coalition” of Republicans and Southern Democrats, however, it became clear to civil rights advocates that a more diversified approach was needed. As a result, they increasingly pursued their goals through the courts and the administrative state.
Our analysis focuses on the five Congresses that convened during the 1940s: the 77th (1941-1942), 78th (1943-1944), 79th (1945-1946), 80th (1947-1948), and 81st Whereas antilynching was the only meaningful civil rights issue on the congressional agenda in the 1920s and 1930s, a broader set of issues emerged in the 1940s. We look at the four sets of civil rights initiatives that were both debated on the floor and generated roll-call votes: (1) efforts to eliminate the poll tax in Southern elections; (2) attempts to federalize soldier voting during World War II, thereby threatening state-level electoral institutions; (3) attempts to institute fair employment practices (prohibit discrimination) among private sector employers, labor unions, and agencies of the federal government; and (4) efforts to eliminate discrimination in public education, through conditional federal assistance for state-level school lunch programs. These civil rights initiatives fell into two distinct categories: political equality (anti-poll tax and soldier voting) and economic equality (fair employment and school lunches). In this way, the legislative battles of the 1940s mirrored the legal battles that would emerge as the decade wound to a close.
In the following sections, we provide in-depth case studies of each of these four civil rights issues and discuss the congressional proceedings, individual roll-call votes, and eventual legislative outcomes. We focus first on the anti-poll tax, which was perhaps the major civil rights issue of the 1940s; it was regularly on the congressional agenda throughout the decade and it would continue to highlight (as did the antilynching bills of the prior two decades) the stark differences between the majoritarian House, which consistently supported such legislation, and the super-majoritarian Senate, led by Southerners, which consistently opposed such legislation. We then turn to soldier voting, which was a more focused (and contextual) attempt to limit black voting rights, but also dealt with the larger issue of federal power versus states' rights; the battle over soldier voting also involved the poll tax as applied to servicemen, which makes it a natural follow-up to the anti-poll tax case. In the third and fourth case studies, we focus on civil rights legislation that extended beyond voting rights. We begin with the legislative effort to end employment discrimination, via the creation of a Fair Employment Practices Commission, which was designed to promote both racial and economic equality for black workers. We then take up the school lunch program, which represented a more targeted attempt to end discriminatory practices aimed at school-age children.
To summarize our results, we find that voting on anti-poll tax and school lunch legislation contrasts with voting on a federal soldier ballot and fair employment legislation. In the former cases, Republicans consistently lined up with Northern Democrats against Southern Democrats. In the latter cases, Republicans sometimes joined with Southern Democrats in a conservative coalition against Northern Democrats. Thus, civil rights outcomes did not follow strictly from the political/economic basis of the legislation; rather, they were conditioned on the perceived case-by-case electoral advantage of the pivotal Republican bloc in Congress.
. Jeffery A. Jenkins is an Associate Professor and Director of Graduate Studies in the Department of Politics and a Faculty Associate in the Miller Center of Public Affairs at the University of Virginia <jajenkins @virginia.edu>. \
Justin Peck is a Ph.D. student in the Department of Politics at the University of Virginia <firstname.lastname@example.org>;