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Change and Continuity in the Concept of Civil Rights: Thurgood Marshall and Affirmative Action*

  • Mark Tushnet (a1)

In analyzing the development of the concept of civil rights since the adoption of the Fourteenth Amendment, two historical accounts seem available. According to the first account, the concept initially encompassed a relatively limited set of rights, associated with the ability of all citizens to engage in the productive activities of the economy and avail themselves of the protection of the legal system. Then the concept gradually expanded to include what had initially been thought of as political rights, such as the right to vote, and then to identify the entire set of rights to equal treatment in all domains of life outside a relatively narrowly-defined private sphere. According to the second account, the concept of civil rights was fuzzy from the outset; although political actors spoke as if they had a clear understanding of distinctions among civil, political, and social rights, close examination of their language shows that the distinctions tended to collapse under slight pressure.

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1 A good statement of this position is Berger RaoulGovernment By Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977).

2 See Tushnet , ”The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston,” The Constitution and American Life, ed. David Thelen, p. 224 (Ithaca: Cornell University Press, 1988).

3 See, e.g., Reynolds William Bradford, ”Individualism vs. Group Rights: The Legacy of BrownYale Law Journal, vol. 93 (1984), pp. 995, 998.

4 The affiliation with the Progressive Party is stated in the opinion of the Court in Hughes v. Superior Court, 339 U.S. 460 (1950); on the affiliation with the NAACP, see letter from Thurgood Marshall to C. Brown, October 25, 1949, National Association for the Advancement of Colored People Papers, Library of Congress, Box II-B-87, file: Labor, California, Hughes v. Superior Court, 1947–50 (hereafter cited as NAACP Papers).

5 Hughes v. Superior Court, 32 Cal. 2d 850, 198 P.2d 885 (1948).

6 For discussions within the NAACP of the domination of the branch by members of the Communist Party, see letter from Noah Griffin to Walter White, November 8, 1946, NAACP Papers, box II-A-201, file: Communism, General, 1940-April 1947; letter from White to Committee on Administration, November 11, 1946, ibid.

7 Letter from Noah Griffin to Marshall, June 3, 1947, NAACP Papers, box II-B-87, file: Labor, California, Hughes v. Superior Court, 1947–50; letter from Marshall to Griffin, June 13, 1947, ibid.

8 Perry to Clarence Mitchell, Feb. 18, 1948, NAACP Papers, Box II-B-87, file: Labor, California, Hughes v. Superior Court, 1947–50; Poole to Marshall, January 10, 1949, ibid.; Loren Miller to Marshall, October 27, 1949, ibid. Jack Greenberg of the national legal staff suggested that to diffuse the controversy, the NAACP should present the case by interpreting the proportional hiring demand as a simple antidiscrimination claim. Greenberg to Legal Department, November 3, 1949, ibid.

9 Thornhill v. Alabama, 310 U.S. 88 (1940); Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949).

10 James v. Marinship Corp., 25 Cal. 2d 721, 155 P.2d 329 (1944).

11 Hughes v. Superior Court, 198 P.2d at 889.

12 198 P.2d, pp. 894–95.

13 198 P.2d, pp. 895–96.

14 339 U.S., pp. 464, 466–67.

15 One of Justice Tom Clark's law clerks noted that Frankfurter “seems to be saying that he agrees with the California policy, which is of course not the issue.” Larry [Tolan] to Clark, April 13, 1950, Tom Clark Papers, Tarlton Law Library, University of Texas, box A3, folder 1. No Justice suggested to Frankfurter that he modify any of this language, and although three Justices concurred in the result, their disagreements with Frankfurter stemmed from his more general statements about picketing as free speech. Ibid., p. 469 (Black and Minton, JJ., concurring in the judgment, and Reed, J., concurring). Clark prepared a dissenting opinion, which he did not publish, in which he suggested that the state Supreme Court's decision could be affirmed only if the United States Supreme Court treated as “establishing an F.E.P.C. [Fair Employment Practices Commission] under the aegis of the judiciary,” in which case he “doubt[ed] that the N.A.A.C.P. would urge reversal.” Draft dissent, Clark Papers, box A3, folder 1.

16 Ibid., p. 468.

17 347 U.S. 483 (1954).

18 Leon Friedman, ed., Argument: The Complete Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka (New York: Chelsea House, 1969), pp. 365–69.

19 Ibid., p. 390 (Spottswood Robinson, in response to question from Justice Stanley Reed).

20 Ibid., p. 400.

21 Ibid., p. 402.

22 Ibid., p. 402, 436.

23 Taper Bernard, “A Meeting in Atlanta,” The New Yorker, March 17, 1956, pp. 9495.

24 Ibid., pp. 436, 531.

25 349 U.S. 301 (1955); Kluger Richard, Simple Justice (New York: Vintage, 1976), p. 745.

26 438 U.S. 265 (1978). Marshall also joined a joint opinion signed by Justices Brennan, Blackmun, and White. For his contributions to the decisional process in Bakke, see Schwartz Bernard, Behind Bakke: Affirmative Action and the Supreme Court (New York: New York University Press, 1988), pp. 127–29.

27 438 US., p. 387.

28 Ibid., pp. 387–96.

29 The Fourteenth Amendment, adopted in 1868, provides, in relevant part, “No State shall… deny to any person within its jurisdiction the equal protection o f the laws.”

30 The Freedman's Bureau was a federal agency that provided assistance in relocating, acquiring land on which to farm, and supervising the terms of labor contracts to the newly freed slaves. See Randall James & Donald David, The Civil War and Reconstruction (2d ed.; Boston: D.C. Heath & Co., 1961), p. 576.

31 Ibid., pp. 396–400.

32 Ibid., pp. 400–402.

33 476 U.S. 267 (1986).

34 The latter point was the burden of Justice O'Connor's opinion concurring only in the result on this question. Ibid., p. 294.

35 Ibid., p. 296.

36 Ibid., pp. 309, 311.

37 Ibid., p. 312.

38 488 U.S. 469, 109 S.Ct. 706 (1989).

39 448 U.S. 448 (1980).

40 Ibid., pp. 520, 522.

41 The Supreme Court has developed a complex analysis of the constitutionality1 of classifications that statutes use. At one extreme, it gives what it calls “strict scrutiny” to “suspect” classifications, of which racial classifications are the best example. At this extreme, the classification may be used if it is essential to the achievement of extremely important government policies, which cannot be advanced in any other way; statutes placed under strict scrutiny rarely satisfy these requirements. At the other extreme, a statute dealing only with social or economic matters can use any classifications the legislature chooses so long as using those classifications is a reasonable way of accomplishing goals the government is allowed to accomplish. Occasionally the Court has used other approaches. Sometimes it has invoked “intermediate” scrutiny for statutes that use classifications that are normarively a bit troubling, but not so troubling as racial classifications; gender-based statutes are the best example. Sometimes the Court has seemed to balance all the competing considerations without taking seriously the “level of scrutiny” it says it is invoking. One issue in affirmative action cases is whether affirmative action programs should receive strict scrutiny because they do use racial classifications, or whether they should receive intermediate or rational-basis scrutiny because strict scrutiny should be reserved for statutes that use racial classifications to disadvantage minorities.

42 109 S.Ct., p. 722.

43 Ibid., p. 727.

44 Ibid., p. 740.

45 Ibid., p. 749.

46 Ibid., p. 744.

47 Justice O'Connor's opinion argued that Fullilove was inapposite because the Court there found the statute constitutional as an exercise of a particularly important power given to Congress to enforce the antidiscrimination provisions of the Fourteenth Amendment. States, she argued, did not have that particularly important power given to them by the national Constitution, and indeed were the targets of the Fourteenth Amendment. 109 S.Ct., p. 719. Marshall argued in response that it was bizarre to interpret the Fourteenth Amendment as depriving states of a power, derived ultimately from the inherent rights of sovereignty, to take exactly the same action that Congress could under the Fourteenth Amendment. 109 S.Ct., p. 755.

48 Ibid., p. 753.

49 See, e.g., Dandridge v. William, 397 U.S. 471 (1970).

50 Most of Marshall's colleagues have rejected his approach on the ground that its focus on outcomes implies that, once a plaintiff links some government action to a state of affairs to which the plaintiff objects, the courts must determine whether that state of affairs is constitutionally acceptable. For Marshall's colleagues, this approach gives the courts too large a role in government. See Washington v. Davis, 42 6 U.S. 229 (1976). Marshall's response has been, in general, that many important cases, which the other justices believe to have been correctly decided, cannot be explained in any way other than by Marshall's approach. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 70 (1973) (Marshall, J., dissenting). (A full elaboration of this footnote will be included in the book from which this article is drawn.)

51 See, e.g., City of Cleburne v. Cleburne Living Center, 455 U.S. 432, 455 (1985) (Marshall, J., concurring).

* This article is drawn from a chapter of a forthcoming biography of Justice Thurgood Marshall, and is published here with the permission of that book's publisher, Basic Books. I would like to thank Ellen Frankel Paul and the participants at the conference at which the article was presented for their comments.

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