To Secure These Rights

Explanation and Analysis of the Document

With Truman’s blessing, the committee decided not simply to focus on the most “flagrant outrages” against minorities but to look more “broadly” at civil rights generally. To aid its inquiry, the fifteen-person group devised four baseline questions, each of which warranted its own, individual section in the body’s final report. The questions were these: “What is the historic civil rights goal of the American people?” “In what ways does our present record fall short of the goal?” “What is government’s responsibility for the achievement of the goal?” “What further steps does the nation now need to take to reach this goal?”

Conceding that the term civil rights “has with great wisdom been used flexibly in American history,” the committee dedicated its first section to identifying which rights, precisely, needed to be secured. In so doing, it went a long way toward framing the civil rights debate for decades to come, drawing not simply from the Bill of Rights but also from the Declaration of Independence, President Roosevelt’s Four Freedoms, and its own conceptions of what the federal government should protect. Out of this democratic assortment of legal and nonlegal sources, the committee identified four primary rights: “the right to safety and security of the person,” “the right to citizenship and its privileges,” “the right to freedom of conscience and expression,” and, perhaps most notably, “the right to equality of opportunity.”

On the first, the committee noted that freedom was meaningless so long as citizens were subject to “bondage, lawless violence, and arbitrary arrest and punishment,” warranting the need for federal protection of the “due process of law” against any “threat of violence by private persons or mobs.” At least part of this “security” right rested on firm legal footing, particularly the due process rights of the Fifth and Fourteenth amendments as well as the procedural protections of the Fourth, Sixth, and Eighth amendments––though they had yet to be incorporated to the states. However, the committee’s concern for mob violence indicated a departure from written law, especially the Constitution’s focus on state actors. Even the Fourteenth Amendment, for example, did not protect citizens from abuses by “private persons” and “mobs,” a point made clear by the Supreme Court in United States v. Cruikshank in 1876. The committee’s rejection of this opinion would be one of several remarkable innovations in the conception of rights that it devised.

The second innovation that the committee devised emerged in tandem with its second right: the “right to citizenship and its privileges.” Clearly based on the Fourteenth Amendment, the right to citizenship adhered to “every mature and responsible person,” who in turn deserved “an equal voice in his government.” With an eye to disfranchisement in the South, the committee noted that participation in the political process could not be limited to individuals of a particular “race, color, creed, … or national origin.” Then, in a move that went decidedly off the Fourteenth Amendment, the committee included the right to military combat as a core civil right, noting that all citizens “must enjoy the right to serve the nation and the cause of freedom in time of war.” Those who did not enjoy such a right, noted the committee in an allusion to the Supreme Court’s infamous 1896 decision in Plessy v. Ferguson, suffered a “badge of inferiority.” Precisely because Plessy sanctioned racial segregation, not combat service, the committee’s invocation of a right to combat played fast and loose with legal doctrine, essentially creating a new civil right out of whole cloth. Even the most militia-friendly reading of the Second Amendment, which was arguably the only constitutional protection applicable to military service, did not indicate that citizens had the constitutional right to join a militia.

Third on the committee’s list of vital rights was the “right to freedom of conscience and expression,” perhaps the only right firmly grounded in legal doctrine. Paraphrasing the First Amendment, the committee denounced the suppression of private “arguments, viewpoints, or opinions” meanwhile recognizing Oliver Wendell Holmes’s “clear and present danger” qualification as articulated in Schenck v. United States (1919). “Complete religious liberty” also struck the committee as a central right, except when “pleaded as an excuse for criminal or clearly anti-social conduct.”

If the committee’s third right was the most doctrinaire, then its final right proved to be its most unmoored. Abandoning both written and unwritten law, the committee called for federal protection of “the right to equality of opportunity.” Observing that it was “not enough” that citizens were guaranteed political participation, the committee also judged the federal government responsible for providing citizens with the “right to enjoy the benefits of society.” This included the right to “obtain useful employment” as well as the right to “have access to services in the fields of education, housing, health, recreation and transportation” independent of “race, color, creed, and national origin.” While the eradication of racial and national animus anticipated the Supreme Court’s equal protection jurisprudence in the 1950s, the committee’s interest in equality of opportunity marked a relatively radical departure from anything mentioned in the Constitution or subsequent Supreme Court jurisprudence. Even Plessy v. Ferguson, which held that separate public accommodations like streetcars needed to be equal, did not provide any indication that such equality extended to opportunity. Nor did Thomas Jefferson’s invocation of the right to “life, liberty, and the pursuit of happiness” in the Declaration of Independence necessarily mean that the government was obligated to provide equal access to private employment. Here, the committee’s work truly forged new ground, setting the stage not only for the establishment of the Equal Employment Opportunity Commission in 1965 but also for the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990.

Prescient in scope, the committee also proved persuasive in fact, as illustrated in the second section of its report, titled “The Condition of Our Rights,” which built the case for unprecedented federal intervention in state affairs by recounting a parade of shocking abuses at the local level, many in the South. Included in the first part of this section were shocking depictions of lynchings coupled with the observation that “communities in which lynchings occur tend to condone the crime.” Also in this section are discussions of police brutality, “unwarranted arrests, unduly prolonged detention[s] before arraignment, and abuse[s] of the search and seizure power,” all recognizable targets of the Warren Court over a decade later. Recognizing the close ties between police and local majorities, the committee identified one of the core issues that would come to plague police departments for the next half century, namely the plight of “unpopular racial or religious minorities” in the face of “prejudices of the region or of dominant local groups.”

Perhaps even more problematic were lapses in the administration of justice. Again focusing on the South, the committee found shocking evidence of confessions resulting from torture; incompetent, even nonexistent counsel; and use of the “fee system” by which judges were paid based on the number of “fines levied.” Exacerbating such travesties were even more alarming cases of forced labor, both against employees who owed debts and prisoners who endured false convictions only to be hired out by sheriffs to “local entrepreneurs.”

As the committee unearthed clear infringements on the “right to security,” so too did it uncover alarming violations of the right to citizenship, many leveled at Asian immigrants on the West Coast and African Americans in the South. In states like California, for example, natives of Japan and Korea were “forbidden an opportunity to attain citizenship status” and also barred from owning land. Meanwhile, blacks in the American South confronted myriad “qualifications” standards, among them requests to read and interpret the Constitution, pay exorbitant poll taxes, and even endure outright physical violence.

Convinced that combat duty was also a right of citizenship, the committee exposed numerous discrepancies in the treatment of white and black soldiers. Enrollment in officer candidate schools for all four branches was generally restricted to whites; meanwhile, “cooks, stewards, and steward’s mates,” tended overwhelmingly to be black. Further, the armed forces enjoyed relatively little success in eliminating discrimination from admission to the military academies, further ensuring that blacks did not occupy positions of rank in the armed forces.

As for the right to freedom of conscience and expression, the committee did not focus on race so much as political affiliation, particularly individuals suspected of being Communists. Conceding that Communists were “hostile to the American heritage of freedom and equality,” the committee still opposed “any attempt to impose special limitations on the rights of these people to speak and assemble.” Predicting the national backlash against Senator Joseph McCarthy (who led a Senate investigation of supposed Communist infiltration of government) almost a decade later, the committee observed that “public excitement about ‘Communists’” exceeded both “good judgment” and “calmness.”

Finally, the committee considered the right to equal opportunity in employment, schools, housing, and health care. Noting that World War II had actually triggered a “marked advance both in hiring policies and in the removal of on-the-job discriminatory practices,” the committee still recognized that discrepancies remained. Particularly vulnerable were “minority group members,” including African Americans, Mexicans, and Jews. To illustrate, the committee cited a 1946 survey of private employment agencies in over one hundred major cities, concluding that “89 percent” of the agencies polled “included questions covering religion on their registration forms.” In Chicago alone, “60 percent of the executive jobs” and “50 percent of the sales executive jobs” were closed to Jews.

African Americans also tended to suffer considerable employment discrimination. A poll of government employees indicated that while whites tended to enjoy a promotion once every two years, African Americans could expect to be promoted once every fourteen years. Even greater obstacles existed to union membership as organized labor proved less willing to end discrimination than “private industry.” Despite such disparities, however, only six states boasted “laws directed against discrimination in private employment.”

Perhaps surprisingly, discrimination in schools occupied a relatively small portion of the committee’s findings, even though it did focus those findings on the South. Stating that the South boasted only “one-fifth of the taxpaying wealth of the nation,” the committee framed the region’s decision to “maintain two sets of public schools, one for whites and one for Negroes,” economic folly. Exacerbating this folly was the unconscionable “difference in quality” between schools for whites and schools for blacks, black schools suffering significantly lower rates of “expenditure per pupil, teachers’ salaries, the number of pupils per teacher, transportation of students, adequacy of school buildings and educational equipment, length of school term,” and “extent of curriculum.” Yet, despite the region’s “considerable progress in the last decade in narrowing the gap” between white and black schools, the committee doubted that the South could ever achieve true parity without “federal financial assistance.”

Although the committee was dubious of southern commitment to funding black schools, it did not make the argument that the National Association for the Advancement of Colored People would eventually make in Brown v. Board of Education, namely, that segregated schools were inherently discriminatory because they negatively affected the psychological development of African American children. The absence of such a critique indicates that even as late as 1947 school integration was not viewed in quite the same way as it was in 1954 and may, in fact, have been less important than the problem of disparate funding.

By contrast, the committee successfully foreshadowed Supreme Court jurisprudence in the realm of housing, targeting the restrictive covenant as an impermissible means of discrimination against minorities, including “Armenians, Jews, Negroes, Mexicans, Syrians, Japanese, Chinese and Indians.” Noting that such covenants were essentially private, the committee nevertheless documented their remarkable affect on America’s urban landscape, noting that the “amount of land covered by racial restrictions in Chicago has been estimated at 80 percent.” Identifying covenants as a handmaiden of the ghetto, the committee advanced what was at that point a relatively novel interpretation of state action, remarking that deed restrictions could be enforced only by “obtaining court orders,” thereby making covenants a kind of state action precisely because they placed “the power of the state behind the enforcement of the private agreement.” Knowing full well that recasting legally enforceable private agreements––essentially contracts––as state action boasted little precedent in American law, the committee cited a Canadian court ruling to defend its position, marking yet another innovative act of rights creation.

Perhaps the most stunning act of rights creation engaged in by the committee emerged in the realm of health care, where the committee identified a “right to health service.” Well aware that no doctrinal support existed for such a right, the committee simply cited data indicating “discrepancies between the health of the majority and the minorities,” caused by factors such as “crowded, dirty” living conditions; segregated health facilities; and a lack of minority health care professionals. “In 1937” alone, said the committee, “only 35 percent of southern Negro babies were delivered by doctors, as compared to 90 percent of northern babies of both races.” Further, black life expectancies were considerably lower than those for whites, with black males and females expecting to live fifty-two and fifty-five years, respectively, while their white counterparts expected to live at least a decade longer. Part of the explanation for these disparities, continued the committee, was “the discriminatory policy of our medical schools in admitting minority students” as well as the “refusal of some medical societies to admit Negro physicians.”