PRESIDENTIAL POLICY BRIEFING: CIVIL RIGHTS IN THE U.S.

Caroline Shanley, Purdue University Department of Political Science

Ever since the inception of the 14th amendment in 1868, civil rights have become a predominant

part of American political life, from the highest Court in the land down to the grassroots movements

advocating for them. The history of civil rights in the context of the executive is best understood by

examining the dichotomy between President Johnson and President Reagan, who pushed for an

expansionary and a contractionary period in civil rights respectively. In considering the role of a strong

federal government and an active judiciary in ensuring civil rights, versus one reliant upon individual

states and deference, a framework can be established for setting up the future of civil rights, particularly

those of LGBTQ+ citizens.

Civil Rights Before Johnson

The passage of the 13th, 14th, and 15th amendments were revolutionary for their time, and

provided new liberties to former slaves by outlawing slavery, guaranteeing citizenship, and giving black

men the franchise. However, this still left many disaffected at the margins, and the continued passage of

southern Jim Crow laws that emboldened public accommodations to refuse service to black Americans

rendered them, essentially, second-class citizens. The 14th Amendment equal protection clause, and even

the due process clause, were left relatively untouched by Court challenges in antebellum America. At the

time, the Court ruled primarily on the Privileges and Immunities Clause, noting that the creation of that

clause enumerated national privileges and immunities, but exerted no power over states to grant “extra”

privileges. Although a Civil Rights Act was passed in 1875 to attempt a ban on informal racial

segregation, it was overturned by The Civil Rights Cases (1883), with the rationale that the 14th

amendment cannot prevent private owners from discriminating; it only prevents the state from doing so.

Most notably, the Plessy v. Ferguson (1896) decision upheld the legality of such Jim Crow policies.

The 20th century saw a new level of activism from frustrated black Americans. After many young

black men were conscripted to serve in both World Wars and Korea, they felt as though they should be

truly integrated into the country they were risking their lives defending. The mandated segregation –
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reinforced by southern Black Codes – were being actively challenged by figures such as Rosa Parks, who

refused to move to the colored section on a segregated bus. Finally, the issue was brought to the Supreme

Court in the case of Brown v. Board of Education (1954), which handed down the decision that separate

educational facilities could never be truly equal (a direct rebuke to Plessy.) Despite the symbolic weight

of this case and the lukewarm plea to move with “all deliberate speed,” a SCOTUS ruling was not issuing

the tangible, restorative justice that black Americans wanted to see; the promise of civil rights was not yet

fulfilled.

Civil Rights Under Johnson

President Lyndon B. Johnson was known as a dealmaker in Congress, especially in the White

House, and used his legislative flair to pass many pieces of landmark legislation through Congress,

always tending to pieces of legislation “from the cradle to the grave1.” Noting that no civil rights

legislation had passed since the previous decade and upon the sudden death of President Kennedy,

Johnson saw the opportune time to push specifically for the Civil Rights Act. “We have talked long

enough in this country about equal rights2,” stated Johnson in his first Presidential address, emphasizing a

need to act.

President Johnson was sympathetic to the cause of civil rights, particularly because he had spent a

considerable time working for a poor border school with Latino students and had been a diligent legislator

for President Roosevelt’s New Deal. However, he was also keenly aware of the political cost for the

Democrats if the Civil Rights Act was not passed in its entirety. Not only did Johnson face institutional

challenges in the Senate, the other force acting on his decision was external: grassroots protests and

demonstrations. The activism displayed by the black community placed immense pressure on the

President. Even with Johnson working directly with black leaders such as Martin Luther King Jr., he

knew that this movement was making waves, and thus remained steadfast in his commitment to keep the

bill as is. The black populous was understandably split between supporting a President who represented

1
Bruce J. Schulman, Lyndon B. Johnson and American Liberalism (Boston: Bedford St. Martin’s, 2007.)
2
Ibid. 70.
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the very white, patriarchal structure they sought to abolish, and getting the very lawmaking institution

they needed for legitimation on their side. Finally, Johnson was able to convince Senator Dirksen to

throw the “Republicans behind cloture3,” and pass the Civil Rights Act of 1964.

The Act eliminated discrimination based on race, color, religion, or national origin in public

accommodations, facilities, programs receiving federal funding and public schools. Additionally, Title

VII specifically enumerated protections against employment discrimination and established an Equal

Employment Opportunity Commission to evaluate claims. Even with these monumental achievements,

social unrest continued. The 1965 Watts Riots in LA, for example, exemplified the many problems that

still remained after the passage of the Act. With an instance of a young black man being pulled over, the

disillusioned black community of southern LA rallied, engaging in a three-day riot to demand justice.

Johnson specifically saw this riot as “a personal blow4,” not understanding how his effective

policymaking had not been enough to secure their trust. Legal protections legislated in D.C. did not

necessarily translate to a shift in national cultural attitudes, and more comprehensive legislation was

necessary in order to address the nuanced racial issues contained in police brutality and even poverty.

Civil Rights Under Reagan

In contrast to Johnson, President Reagan was concerned with limiting what he considered an

overzealous federal government machine, endorsing states’ rights above all, particularly in the area of

civil rights. Additionally, Reagan tacitly capitalized upon the unrest many felt in urban areas by pointing

to demonstrations as “undermining law and order5.” Reagan’s brand of conservatism was marked by a

return to “traditional” American values: dignity, hard work, and most importantly, family. In this way, he

shifted the legislative priorities away from social programs and towards defense and economic incentives.

Although Reagan did not directly repeal the Civil Rights Act of 1964, his reliance upon the

states’ rights argument was a silent endorsement of a return to less structured civil rights legislation,

3
Ibid. 78.
4
Ibid. 119.
5
Meg Jacobs and Julian E. Zelizer, Conservatives in Power: The Reagan Years, 1981-1989, (Boston: Bedford St.
Martin’s, 2011.)
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especially when he gave a speech endorsing the topic in the same town where white supremacists

murdered several civil rights workers in 19646. There were key ways in which Reagan pushed back on the

civil rights expansion of the Johnson era. One example of this was Reagan’s leadership within the

administrative bureaucracy, and particularly on the Equal Employment Opportunity Commission.

Whereas the Johnson administration built up a commission committed to “not only equality of

opportunity but to greater equality of condition7” by expanding its statutory authority, Reagan did the

opposite beginning with the appointment of Clarence Thomas. Thomas served as the chairman from

1982-1990. He delayed issuing decisions on class-action lawsuits regarding racially discriminatory hiring

schemes. Even Reagan’s appointment of Attorney General Edwin Meese stalled the rate and fervor with

which the Justice Department handled voting rights cases8.

A unique dimension of civil rights faced by the Reagan Administration was the push by second-

wave feminists to ratify the Equal Rights Amendment, which would add “sex” as a named, protected

category against discrimination. In the wake of the Roe v. Wade (1971), the conservative faction was

energized to return to the traditional values Reagan promulgated. One voice in particular, Phyllis Schlafly

or the “Sweetheart of the Silent Majority,” made the case against the ERA for conservative women. “We

have the immense good fortune to live in a civilization which respects the family as the basic unit of

society,” she declared in one of her writing about the ERA. She goes on to argue that women hold “the

most privileged” place in American society by being the child-bearers and homemakers9. Ultimately, the

ERA ended up not passing muster in enough states, and much of this can be attributed by Reagan’s

support by individuals like Schlafly, and his continued emphasis on states as the primary lawmakers.

Overall, Reagan’s presidency in terms of civil rights saw immense pushback on all that Johnson

expanded. With Reagan’s rhetorical emphasis on states, the lack of civility of demonstrators, and the evils

lurking in welfare and drugs, contributed to an vastly contractionary period, that reoriented civil rights.

6
Ibid. 18.
7
Ibid. Schulman, 127.
8
Ibid. Jacobs and Zelizer, 38.
9
Phyllis Schlafly, A Voice Not an Echo, 1964.
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What’s Next For Civil Rights?

The forthcoming civil rights issue of this generation is unquestionably the rights of LGBTQ+

citizens. Although Obergefell v. Hodges (2014) was a landmark decision with national implications, the

nuances of handling queer citizens’ rights to adoption, public services, and more still exist in a policy

quagmire. Just like the gains made under Johnson, much of civil rights legislation starts at a state level.

Obergefell even exemplifies this principle, as many states had already passed their own marriage equality

or domestic partnership laws long before the case got its writ of cert. The executive today faces many of

the external and internal issues both President Johnson and President Reagan experienced. Gridlock

among partisan and regional lines in Congress make institutional action difficult without strong

coalitional support and deal-making. Externally, people are demanding action. From Black Lives Matter

protests to the millions who attended the Women’s March, the demand for inclusion for all queer citizens

is apparent. Thus, the President must understand how weighing both the public as well as legislators is

essential. Additionally, the Court’s role in solidifying, expanding, or sometimes contracting civil rights is

not to be ignored. The politics of judicial activism aside, the Court’s decisive interpretation of the

Constitution carries a significant deal of weight, so the President needs the legal and constitutional

understanding in order to craft successful legislation. The recent Masterpiece Cakeshop v. Colorado Civil

Rights Commission (2017) epitomizes the challenges yet to come. Despite the victory achieved,

symbolically and legally, through the marriage equality case, the issues of public accommodation and

federal funding (especially when it comes to the medical needs of trans* individuals) are still unsolved.

The Equal Rights Amendment fight during the Reagan Administration may possibly return, and with it,

the inclusion of gender identity and expression as protected classes. To conclude, civil rights are nuanced

because they are influenced by the public, but can be limited to an extent by the legislative and judicial

branches. The President, as evidenced by the presidencies of Johnson and Reagan, exert a great deal of

indirect control on the direction of civil rights, and thus it is up to the executive branch to work closely

with both internal and external forces in order to pass legislation and effectuate change.