The tragedy of civil rights.

In the summer of 1964, despite the intense controversy surrounding the civil rights bill, Congress approved the measure by an overwhelming majority. By passing this legislation, a broad bipartisan and transideological coalition of Democrats and Republicans, liberals and conservatives forged a consensus on the meaning of justice and equality in American life. The consensus was based on the principle of nondiscrimination for all individuals regardless of race, religion, ethnicity, and sex. After the passage of this landmark legislation, the meaning of civil rights was transformed from equal opportunity and nondiscrimination for individuals into numerical equality of result or proportional representation for racial, gender, and ethnic groups. This transformation was implemented not by the democratic elected representatives of the people in the U.S. Congress but by the courts and the administrative bureaucracy. This essay will examine that transformation, analyze its implications for justice and equality, and suggest that it is time to restore the moral ideals of the civil fights coalition of 1964.

A History of the 1964 Civil Rights Act

On June 11, 1963, President John F. Kennedy announced on a nationwide television and radio broadcast that he would submit to Congress a comprehensive civil rights bill that would end racial segregation in public schools and public accommodations and ensure voting rights for African Americans. Throughout the summer of 1963, House Judiciary Subcommittee No. 5 held hearings on the administration bill. Under the chairmanship of Immanuel Celler (D-N.Y.), an urban liberal, the subcommittee reported out a civil rights ball that gave more authority to the federal government than the administration had requested. Worried about losing support for the legislation, Attorney General Robert Kennedy appeared before the full Judiciary Committee on October 15 and October 16, 1963, and requested modifications in the bill.

In late October, Kennedy administration officials, Democratic congressmen, and Republican spokesmen, led by the House minority leader, Charles Halleck (R-Ind.), and the ranking minority member on the Judiciary Committee, William McCulloch (R-Ohio), negotiated a compromise agreement. This compromise measure was closer to the original Kennedy version and more in line with what most members of Congress wanted. For example, the original Celler subcommittee bill provided for administrative rather than regular court enforcement of Title VII (the employment section) of the legislation. The compromise version changed this by eliminating the administrative enforcement provisions from Title VII.

On October 29, 1963, the compromise bill passed the Judiciary Committee. From January 31, 1964, to February 10, 1964, the full House of Representatives debated the civil rights bill. During those hectic eleven days, the bipartisan coalition operated smoothly and effectively. The Judiciary Committee chairman, Immanuel Celler, was the floor manager for the civil rights bill. Other Democratic congressmen, such as James Corman (D-Calif.), Byron Rodgers (D-Colo.), Peter Rodino (D-N.J.), and James Roosevelt (D-Calif.), were major actors in the legislative drama.

On the Republican side, William McCulloch led the pro-civil rights forces. In addition, Clark MacGregor (R-Minn.), Charles Goodell (R-N.Y.), John Lindsay (R-N.Y.), Charles Mathias (R-Md.), Robert Griffin (R-Mich.), and Robert Taft, Jr. (R-Ohio) emerged as major spokesmen for the bipartisan coalition. Celler, McCulloch, and Lindsay were in frequent contact with each other and with Justice Department officials as they guided the bill through a minefield of crippling amendments offered by the opposition. Between February 2 and February 8, 1964, the bipartisan coalition thwarted most of the opposition's attempts to alter the bill, and on February 10, the House passed the measure 290 to 130 - or by more than a two-thirds majority.

In the Senate the civil rights proponents faced a Southern filibuster. In order to evoke cloture and break the filibuster, the bill's supporters needed help from conservative Republicans and small- and border-state Democrats. While President Lyndon B. Johnson wielded his considerable persuasive powers to persuade Western and border-state Democrats to vote for cloture, Senate Democratic leaders began courting Everett McKinley Dirksen (R-Ill.), the minority leader, whose support was crucial to obtaining enough conservative and moderate Republican votes to break the filibuster. At first Dirksen thought the House bill gave too much power to the federal government. But, after intense negotiations with leading Senate liberals and Justice Department officials, the Illinois Republican agreed to support a substitute bill. This Senate compromise measure gave more authority to state agencies than did the House-passed bill; however, it left crucial provisions of the legislation intact. Once committed, Dirksen became an energetic leader of the bipartisan coalition.

As in the House of Representatives, the civil rights coalition in the Senate possessed two salient characteristics: (1) It was extremely well organized and coordinated, and (2) it transcended partisan and ideological lines. Sen. Hubert Humphrey (D-Minn.), the Democratic majority whip, served as floor manager for the bipartisan coalition. His chief lieutenant was the Republican minority whip Thomas Kuchel (R-Calif.). All important titles of the legislation were directed on the Senate floor by two bipartisan captains assigned to a particular section of the bill. Thus, for example, Sen. Philip Hart (D-Mich.) and Sen. Kenneth Keating (R-N.Y.) operated as captains for Title I (voting rights). The captains of the majority coalition ranged ideologically from conservative Roman Hruska (R-Neb.) to liberal Paul Douglas (D-Ill.).

During the legislative straggle over civil fights, the bipartisan floor captains, their staffs, and Justice Department lawyers met daily to map strategy. For months Humphrey and Kuchel issued a daily "Bipartisan Civil Rights Newsletter" to the bill's supporters that kept them informed on all important matters affecting the legislation. Finally, on June 10, 1964, the majority coalition evoked cloture and broke the filibuster by a vote of 71 to 29. Nine days later, the Senate passed the civil fights bill 73 to 27. Although a majority of members in both parties supported the bill, Republicans were more likely than Democrats to have voted in favor of it. GOP members approved the bill by a 27 to 6 margin (82 percent to 18 percent). Democrats approved it by a margin of 46 to 21 (69 percent to 31 percent). Because the measure had been amended, it had to return to the House for final approval. On July 2, the House of Representatives voted to accept the Senate changes and passed the final version of the civil fights bill 289 to 126. Again, Republicans were more likely than Democrats to support the bill. The GOP voted 136 to 35 in favor (80 percent to 20 percent) and Democrats voted 153 to 91 in favor (63 percent to 37 percent). That evening, President Johnson signed the measure in a ceremony broadcast on national television.

What It Did

The Civil Rights Act of 1964 contained the following key provisions:

* Voting Rights (Title I): Strengthened the Civil Rights Act of 1957. This section: (1) outlawed arbitrary enforcement of voting registration requirements (e.g., literacy tests for some citizens and not for others), (2) required that literacy tests be administered in writing, and (3) prohibited the denial of the right to vote to anyone because that person made an "immaterial" mistake on his or her voting application.

* Public Accommodations (Title II): Banned discrimination on the grounds of race, color, religion, or national origin in public accommodations (restaurants, hotels, theaters) serving interstate commerce.

* Public Facilities (Title III): Outlawed segregation in public facilities such as state, county, and city-run parks and museums.

* Education (Title IV): Gave the attorney general the right to file suit to desegregate public schools and colleges.

* Federal Programs (Title VI): Prohibited discrimination in federally assisted programs against any person because of his race, color, or national origin.

* Employment (Title VII): Outlawed discrimination in employment on the grounds of race, color, religion, sex, or national origin and created the Equal Employment Opportunity Commission (EEOC) to investigate discriminatory acts.

The Civil Rights Act of 1964 provided important legal safeguards for those accused of violating the statute:

* Defendants were entitled to jury trials on demand except in voting rights cases; if a voting rights case was not tried before a jury, sentences and fines were limited to forty-five days in jail and a $300 fine. (If convicted by a jury, a voting rights defendant could be jailed for six months and fined $1,000.)

* No one could be convicted for criminal contempt unless the "intent" to discriminate was proven.

* No one was to be subjected to both criminal prosecution and criminal contempt proceedings for the same violation of the act.

* The EEOC was authorized to seek voluntary compliance with the law before the government could file a discrimination suit.

* In …