Our Civil Rights Rest on Fundamental Arguments, Not Racial Ones

Celebrations of the Civil Rights Act at 50 remind us just how anachronistic the common understanding of civil rights has become. They are treated as the product of a momentary movement in the latter portion of the 20th century or as a work of legislative artistry by President Lyndon Johnson. Today it seemingly suffices to name President Johnson and Dr. Martin Luther King, Jr. to say all that is necessary about civil rights. Ironically, the observations most associated with each of these men undermine their claims to be advocates of civil rights constitutionally understood. In Johnson’s case, the observation was that “equal opportunity is essential, but not enough, not enough.”[1] In King’s case, the observation was the dream that one day his children would be judged “not by the color of their skin but by the content of their character.”[2]

Johnson’s words were spoken in the context of a strident demand for “affirmative action” and an “equality of results” that militates rather against than in favor of a genuine understanding of civil rights. King’s, which on the surface were an appeal to the best and broadest standards, nevertheless embed an empirical description of the lives of American blacks that suggests civil rights must be conditioned on changes in their circumstances. In tying civil rights to the question of race, each of these perspectives fails to convey those rights as they should be understood.

Civil rights are best defined as the rights to common or equal participation in civil society.[3] Natural law governs the terms of participation in civil society, comprehensively extending from conception to full maturity. Natural law, as it pertains to human action, is a standard of right conduct “not of humans’ own making” for beings whose self-directed motions are not determined by material circumstances. That such a rule lies at the bottom of what are termed “civil rights” is revealed by reviewing the development of our understanding of civil rights.

Their best articulation from the time of the Founding comes from James Wilson. Further, illustrative Supreme Court opinions defending civil rights show how far the decisions of the justices were regulated so as to tie advances in civil rights to advances in understanding natural law. Finally, Dr. King, in his seminal statement, which was his “Letter from a Birmingham Jail,” clearly expresses the fundamental ground of equality identified by James Wilson (and the Declaration of Independence) as essential to civil rights; it also invokes the entire sweep of Western reflection on the meaning of justice in such a way as to show the pursuit of civil rights as nothing less than perfecting civil relations in light of natural law.

Someone may object that the Declaration of Independence establishes a defense of political rights and therefore not, as such, civil rights (often treated either as independent of, or as dependent upon or derivative from, political rights). Let us clarify, then: When the Declaration asserts that “to secure” the unalienable rights of life, liberty, and the pursuit of happiness—

governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness . . .

–it most of all distinguishes the natural rights antecedent to every government and the resultant “civil rights” that restrain governments to observing and protecting those natural rights.

Such a reading is readily deducible from the elegant formulation of James Wilson, a member of the Constitutional Convention of the United States in 1787 and also a justice on the first Supreme Court. Wilson argued that citizens, regardless of identity or culture, are entitled to “natural” and “acquired” rights, the latter consisting of two rights: the right to “the honest administration of the government in general,” and “in particular, to the impartial administration of justice.”[4] Wilson was not alone in this assertion. He elaborated and confirmed strong suggestions made at the Constitutional Convention and, most notably, contained in the Federalist Papers. In the latter, it is specifically argued that “justice is the end of government,” that “security for civil rights must be the same as that for religious rights,”[5] and that civil rights concern the protections of all parties to the whole, minority or otherwise.[6]

Wilson’s definition of civil rights goes to the heart of the concept. He is most helpful, however, in articulating the foundations of that concept, which he accomplished in his law lectures on the topics of “natural rights,” “the general principles of law,” and “the law of nature.”

The discussion of natural rights begins from the universally accepted concept of a transition from a “state of nature” into a “state of civil society,” mediated by individuals surrendering some natural rights in order to attain civil security. However, Wilson insists—contradicting Edmund Burke and William Blackstone—that what is surrendered is minimal indeed because civil rights are founded on “the stable foundation of nature,” and not “the precarious and fluctuating basis of human institution.”[7]

The Lectures on Law discussed the general principles of law as progressing naturally and consistently from the law of God to man-made law. In that process, Wilson reasoned, man could place confidence in the project of protecting civil rights without surrendering a claim to justice. God’s law for man (apart from that communicated only in Revelation) “is communicated to us by reason and conscience.” Such law known purely by “reason and the moral sense” “has been called natural.” Furthermore, “human law,” which has “deficiencies,” “must rest its authority, ultimately, upon the authority of that law, which is divine.” Among the kinds of human law Wilson defines “that [law] which a political society makes for itself” as “municipal law.”[8]

Wilson’s “municipal” law is the primary focus of civil rights because of a second important argument: namely, civil rights originate in concerns for domestic economy or household management (or in other words, marriage, parentage, and character formation), since it is precisely in that environment that citizens are brought to full maturity, fit for the common or equal enjoyment of and responsibility for the order of civil society.

Wilson reiterates: Since government itself results from the natural law, every government that fails to secure and enlarge the exercise of natural rights “is not a government of the legitimate kind.” Natural law in that sense points to the obligations of humans as they stand “unrelated” to others, “related” to particular others, and “related” to others in general. Insofar as humans stand unrelated (“state of nature”), there is no role for government; insofar as they stand in either particular or general relations, government plays the role of securing their rights and responsibilities in those relationships. In general (“in his unrelated state”), man has a natural right to property, his character, liberty, and safety. In his “peculiar relations,” depending on whether he is a spouse, parent, or progeny, he has “peculiar rights” and “peculiar duties.” In his “general relations,” man has the rights “to be free from injury, and to receive the fulfillment of the engagements, which are made to him” and the duties “to do no injury, and to fulfill the engagements, which he has made.”[9]

The paramount universal duty of government is the duty to “preserve human life.” Reviewing the history of the exercise of unnatural powers over the “newly born,” Wilson recognizes the “consistency, beautiful and undeviating,” with which the “common law” “protects human life, from its commencement to its close.” This common law is the same discovered by Sir Edward Coke in Euripides (“the common law of Athens”) and thus appropriated by Wilson as a standard imperfectly attained until the most recent times.[10]

In other words, the rights attaching to man in “his unrelated state” (merely by virtue of his humanity) subsequently obligate government and, indeed, provide initial legitimacy to government. Next Wilson took up in sequence: marriage (“the true origin of society”), parentage (“the relation of parent and child”), and “the duty of parents to maintain their children decently; . . . to protect them, . . . and to educate them.” He also ruled out slavery as “unauthorized by the common law. Indeed, it is repugnant to the principles of natural law that such a state should subsist in any social system.”[11]

What this account means is that the best understanding of civil rights in practice derives from close attention to how citizens in any given country, indeed persons altogether, are treated in the course of the conduct of their lives in their ordinary relations. As Wilson put it, “publick law and publick government were not made for themselves,” but for “society” . . . “particularly domestick society.”[12]

It is therefore notable that many of the landmark decisions concerning civil rights in the United States touch upon precisely the monuments of domestic economy cited by James Wilson.

The Supreme Court has upheld individual rights of marriage not merely as a positive result of the prescriptions of the Constitution or statutes but as something “long recognized” as one of “the vital personal rights essential to the orderly pursuit of happiness by free men.” Moreover, marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.”[13] Similarly, the freedom of contract and the right to maintain a home for a family were affirmed on the grounds that the “rights to acquire, enjoy, own and dispose of property . . . [were] . . . an essential pre-condition to the realization of other basic civil rights and liberties.”[14] Finally, the rights of parents to educate their children not only have been held not to derive from positive law but have been deemed strong enough to resist even the demands of positive law. To quote the Court,

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.[15]

Arguments from “fundamental theory” are far more the reasons for those decisions than any compulsive operation of the laws. To that extent, they reflect the force of natural law thinking in lighting the path to civil rights.

If anything were to reveal the necessity to found civil rights on altogether “fundamental” and “unqualified” arguments, it would surely be the defense of civil rights penned by King in Birmingham City Jail. In his famous letter, he stated that “I am in Birmingham because injustice is here,” which means that he took a transcendent standard and not a transient promise as the basis of the claims he defended. He argued for the “interrelatedness of all communities and states,” which in turn led him to the famous formulation, “Injustice anywhere is a threat to justice everywhere.” In short, King believed, in Birmingham, that the defense of civil rights for black people in particular required the articulation of the rights of people anywhere and everywhere.

It was on the foundation of St. Augustine’s natural law theory,[16] then, that King discovered the grounds of civil disobedience: “A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of Harmony with the moral law.”

To defend civil rights for black people meant to prove that “segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful.” The moral error begins with the denial of a common or equal position in the civil society, and it ends with refusing to some “the honest administration of the government and the impartial administration of justice.” Thus, the examples King used covered the same two categories established by Justice Wilson.

First, King cited the “code that a numerical or power majority group compels a minority group to obey but does not make binding on itself.” This, he held, is “difference made legal,” where the term difference is synonymous with injustice. The rule of justice, he said, is “sameness made legal.” To attain that standard of governmental performance, however, requires common and equal participation in the civil society and in the government predicated upon that society. Thus, people should not be subject to laws which they “had no part in enacting or devising.”

The second category, the impartial administration of justice, provided the most dramatic defense of the theory King defended, for in mounting the argument against the “racial injustice [that] engulfs this community,” King had to bring his case home to the level of domestic economy that revealed precisely how far civil rights had been impaired. The reductio ad absurdum of lunch counter sit-ins to defend the right to enjoy public custom was not meant to show how trivial civil rights claims were, but rather to show how far injustice had penetrated. The civil rights problem of the 1960s was that American blacks could not conduct themselves under the guidance of natural law because of the obstruction of their opportunities to do so. That meant no families, properly speaking; no education, properly speaking; no self-government, literally speaking. Where there is no domestic economy there is no political community.

To change the culture, one must teach the society how to make judgments of character. According to King, however, American blacks could not take on that task themselves, for they lived under the spell of “color shock.”

If it is warrantable to insist that all human beings should live in accord with the law of nature, then it is an absolute requirement that all be secured the civil opportunity to do so. For that reason, civil rights can be meaningfully defined only as the common or equal participation in civil society. That raises the issue of whether the turn taken from the Civil Rights Act of 1964 did not lead us away from, rather than toward, civil rights.

“The Dilemma of Negro Americans”

Martin Luther King was incontestably the foremost public figure in the United States at the time he broached the most important question confronting the nation. This question formed the subtitle of his final book, Where Do We Go from Here: Chaos or Community? (1967) He promised to deliver what the nation most needed at that moment. The question was rhetorical in form, conveying clearly King’s judgment that community was the appropriate answer. If we seem rather to have inherited chaos than community, we must seek the reason for that in some relation to the answer given by King, and the nation’s reaction to it.

King looked for moral strength in a mystical and mythical “capacity for hardships” in American blacks. “It is on this strength that society must now begin to build,” he wrote. Thus in Where Do We Go from Here he jettisoned dependence upon freedom and self-government as sufficient to justify wholesale inclusion in American society. (“This is no time for romantic illusions and empty philosophical debates about freedom. This is a time for action.”) The reason for this result is that the difficulties American blacks faced in 1967 were cultural and inherited, and only liberation from the weight of that inherited tradition could supply the measure of opportunity required to change the life chances of American blacks.

The discovery of a cultural basis for black disadvantages provided for King the “most optimistic” part of the story for, he reasoned, culture could be turned from the work of destruction to the work of reconstruction:

Any review of the Negro family’s experience is that the causes for its present crisis are culturally and socially induced. What man has torn down, he can rebuild. At the root of the difficulty in Negro life today is pervasive and persistent economic want. To grow from within, the Negro family—and especially the Negro man—needs only fair opportunity for jobs, education, housing and access to culture. To be strengthened from the outside requires protection from the grim exploitation that has haunted the Negro for three hundred years.[17]

This “optimistic” conclusion comes eight pages into an analysis that opened with the observation that the “dilemma of white America is the source and cause of the dilemma of Negro America.” King’s two Americas, setting the tone for the 1968 Kerner Commission report, relate to one another only as “oppressor” and “oppressed” are related to one another. The reality he found in America was no community.

“Being a Negro in America means being scarred by a history of slavery and family disorganization,” King wrote, weaving the reality of 300 years into an accumulated burden of 1967 and presenting an account of the abstract “Negro family” as if it were an autobiography. In these early pages, the reader cannot escape the obvious implication that, respecting “Negroes,” the “content of their character” is a product of suffering, impotence, and impoverishment. In recounting the tales of woe and the magical survival of American blacks, King barely so much as adverts to any intrinsic human capacities or strengths, either in explanation of past achievements or in projecting future achievements. Culture, it seems, is a force independent of humanity.

Since for King the strophe of cultures in America is color, one might anticipate that the antistrophe would be character, as in the expression that people are to be judged “not by the color of their skin, but by the content of their character.” That would mean that the cultural change one seeks is not so much color-blindness (which would be merely a consequence of paying primary attention to character), but rather that sensitivity to character which would merge two cultures into one. To change the culture, one must teach the society how to make judgments of character. According to King, however, American blacks could not take on that task themselves, for they lived under the spell of “color shock”:

It constitutes a major emotional crisis. It is accompanied by a sort of fatiguing, wearisome hopelessness. If one is rejected because he is uneducated, he can at least be consoled by the fact that it may be possible for him to get an education. If one is rejected because he is low on the economic ladder, he can at least dream of the day that he will rise from his dungeon of economic deprivation. If one is rejected because he speaks with an accent, he can at least, if he desires, work to bring his speech in line with the dominant group. If, however, one is rejected because of his color, he must face the anguishing fact that he is being rejected because of something in himself that cannot be changed.[18]

Famously, each of King’s hypotheticals had served in the earlier part of the 20th century as the catechism black families carefully rehearsed in their children (including, I dare say, the family of the elder King who instructed King, Jr.). The conclusion, however, that the aspects of character which one might change have been subordinated to the overriding power and importance of “color shock” served to relegate the earlier catechism to a second-order necessity. We have a paradox here: For King, as well as for President Johnson and others, the evidence of “color shock” became poor education, poverty, and social disadvantage. Thus, the “wearisome hopelessness” was justified by the impossibility of attempting any form of cultural improvement prior to reversing the effects of oppressive victimization.

While King wrote little of questions of character in American blacks, save to exculpate acts such as crimes with reference to the “environment” and “victimization,” he did not entirely neglect the matter. When enumerating five recommended responses to “the Negro’s dilemma,”[19] he began with his nearest reference to character, “a rugged sense of somebodyness.” To overcome a “feeling of being less than human, the Negro must assert for all to hear and see a majestic sense of his worth.” Naturally, mere self-assertion is not a substitute for solid accomplishment. The other recommended responses to “the Negro’s dilemma” were “group unity,” a “constructive use of the [limited] freedom we already possess,” union “around powerful action programs,” and “enlarging the whole society, and giving it a new sense of values.”

These prescriptions for “social change” merged in a single consideration that was enunciated in the book’s final chapter, “The World House.” He there evoked for his reader the emergence of a coherent political movement transcending the United States and animating a global movement toward social democracy. That ultimate political movement was the analogue to the indigenous political movement on which he relied in the United States to nurture his five-point program. (“More and more, the civil rights movement will have to engage in the task of organizing people into permanent groups to protect their own interests.”)

The movement, as he described it, consisted of blacks (as a group, though needing to be mindful of not being taken for granted), northern liberal Democrats, members of labor unions, and an ever-widening circle of oppressed peoples. This general account gave full credit to King’s candid assessment that “there is a need for a radical restructuring of the architecture of American society,” in which the emphasis is placed on the word “architecture,” meaning design, and conjuring up fundamental principles rather than incidental or corollary circumstances.

Martin Luther King answered his rhetorical question—chaos or community?—by dreaming of founding a new community. The unjust treatment he accorded George Washington, depreciating Washington’s moral anguish about slavery and constructively denying the important fact that Washington liberated his slaves in his will, may be accounted for by the immensity of King’s ambition to rival Washington as a founder. King, however, failed where Washington succeeded.

[1] President Johnson’s commencement address at Howard University, Washington, D.C., June 4, 1965.

[2] Martin Luther King, Jr., “I Have a Dream” speech, Washington, D.C., August 28, 1963.

[3] Here and in what follows the argument is an abridgment of that presented in W. B. Allen, “American Civil Rights Movements,” an essay published on the Natural Law, Natural Rights, and American Constitutionalism site. Source URL:http://www.nlnrac.org/american/american-civil-rights-movements

[4] James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, Inc. 2007), Vol. II., Part 3, “Lectures on Law,” Chapter VII, “Of Crimes Against the Rights of Individuals Acquired Under Civil Government,” p. 1160.

[5] Alexander Hamilton, James Madison, John Jay, The Federalist Papers, edited by Jacob E. Cooke (Wesleyan University Press, 1961), Essay #51, p. 351.

[6] For the details of these arguments, see The Federalist Papers, #8, p. 45; #10, p. 57-62; #28, p. 178; #43, p. 298; #84, p. 578.

[7] Wilson, Vol. II, Chapter XII, “Of the Natural Rights of Individuals,” p. 1056.

[8] Ibid., Vol. I, Chapter II, “Of the General Principles of Law,” p. 498.

[9] Ibid., Vol. II, Chapter XII, “Of the Natural Rights of Individual,” p. 1062.

[10] Ibid., p. 1068.

[11] Ibid., 1066-1078.

[12] Ibid., p. 1081.

[13] Loving v. Virginia. 388 U.S. 1; 87 S. Ct. 1817; 18 L. Ed. 2d 1010; 1967 U.S. LEXIS 1082. June 12, 1967, at 190.

[14] Shelley v Kraemer. 334 U.S. 1; 68 S. Ct. 836; 92 L. Ed. 1161; 1948 U.S. LEXIS 2764; 3 A.L.R.2d 441. May 3, 1948, at 841.

[15] Pierce v. Society of Sisters. 268 U.S. 510; 45 S. Ct. 571; 69 L. Ed. 1070; 1925 U.S. LEXIS 589; 39 A.L.R. 468. June 1, 1925, at 535

[16] Martin Luther King, Jr., “Letter from a Birmingham Jail,” April 16, 1963, www.stanford.edu/group/King/popular_requests/frequentdocs/birmingham.pdf

[17] Martin Luther King, Jr., Where Do We Go from Here: Chaos or Community? (Beacon Press, 2010), p. 116.

[18] Ibid., p. 117.

[19] “The Negro is called upon to be as resourceful as those who have not known such oppression and exploitation. This is the Negro’s dilemma. He who starts behind in a race must forever remain behind or run faster than the man in front. What a dilemma! It is a call to do the impossible. It is enough to cause the Negro to give up in despair.” King, Where Do We Go from Here: Chaos or Community?, p. 128.