To Secure These Rights: Congress, Courts and the 1964 Civil Rights Act

My essay celebrates the 40th anniversary of the 1964 Civil Rights Act and critiques the fact that most legal scholars have overlooked that anniversary. I argue that the statute represents a crucial effort of the majoritarian Congress to protect minority rights. I contrast this oversight to the virtually universal celebration of the 50th anniversary of Brown v. Board of Education, which reflects the more conventional view of federal courts as the protector of minority rights. The 1964 Act provides an excellent example of congressional construction of constitutional norms, and it is a landmark statute that effected constitutional change. The focus of this essay is what Denise Morgan and I call Rights of Belonging, rights that promote an inclusive vision of who belongs to the national community and that facilitate equal membership in that community. Coming on the heels of Brown, the 1964 Act provides a good opportunity to compare the institutional strengths and weaknesses of federal courts and Congress as protectors of those rights. Legal academia's lack of attention to the 1964 Civil Rights Act is particularly surprising given the recent interest in popular constitutionalism. This Act is an excellent example of congressional construction of constitutional norms. When Congress enacted the 1964 Act, members of Congress implemented the constitutional mandate against segregation and in favor of making Blacks full class citizens. During the debate over the Act, members of Congress engaged in an intense discussion of fundamental constitutional principles lasting longer than any other congressional statutory debate in American history. Members of Congress debated the extent of the rights of federal citizenship, the proper allocation of power between the state and federal governments, and the meaning of individual rights such as the right to equal protection of the laws and the extent to which that right conflicted with private property rights. Once the bill was enacted, it created constitutional change, establishing a firm federal commitment to equality rights and a strong congressional commitment to combating private discrimination. I use the story of the 1964 Civil Rights Act as an opportunity to compare the institutional strengths and weaknesses of courts and political actors as protectors of minority rights. While acknowledging the importance of courts as protectors of minority rights, I argue that there are a number of institutional reasons why Congress has been effective at protecting minority rights. Institutional strengths of Congress include the legitimacy of majoritarian rule and the transparency of constitutional debate, make it particularly well suited to addressing minority rights. I point out that focusing solely on courts, and not political bodies, as protectors of minority rights denies the agency of the thousands of civil rights activists whose fight was directed primarily at the political bodies, not the courts. Finally, studying the dynamics of congressional protection of individual rights allows an opportunity to revisit a crucial issue in moral and legal philosophy - the relationship between community, rights and moral values in our society.