Legislating Freedom

John Oliver lit up the Internet this weekend with a powerful segment arguing that it is the mandate of the federal government, not the states, to enforce civil rights. A friend of mine slightly dissented, wondering if people do not self-correct their morals over time, thus rendering the need for government action unnecessary.

I disagree: Legislation and judicial rulings in favor of civil rights have been necessary historically because significant portions of the population have always opposed the “next wave” of constitutional extensions.

For instance:

  • James Madison pushed for Congress to stay out of religion, when a number of politicians (e.g., Patrick Henry) wanted there to be a national Christian church. See David Sehat’s great legal history, The Myth of American Religious Freedom, for more information on this topic.
  • In 1867-68, the Congressional Radical Republicans passed the 14th and 15th Amendments and the Reconstruction Acts to ensure black political rights, because of ex-Confederate opposition to black political engagement.
  • Suffragettes fought for the right to vote when the entire white political establishment, including President Woodrow Wilson, wanted to ignore them.
  • Black lawyers and their white allies lobbied for desegregation through politics and court cases.
    • Two side-notes: Would the white Topeka Board of Ed have let black children attend school if the Supreme Court hadn’t forced them to do so? Would the army have desegregated if Truman hadn’t ordered it to do so?
  • Black and white civil rights activists pressured white politicians in Congress and LBJ’s White House to pass the Civil Rights and Voting Rights Acts, in the face of enormous racist opposition within Congress.
  • In the last three years, the Supreme Court issued multiple rulings saying that gay Americans cannot be deprived of civil rights that straight Americans enjoy, in the face of many states that don’t have anti-LGBT discrimination statutes on the books.

People can self-correct their prejudices, and individual people always initiate civil rights battles, but the struggle for freedom would stall if it was never coupled with legal and political mechanisms. Generally speaking, only the federal government has the tools and geographic reach at its disposal to enforce these changes everywhere. Once on the books, laws prohibit discriminatory behavior, establishing a basic status quo of civil decency and forcing prejudicial individuals to keep their views to themselves. In such a legislation-supported environment, people will *hopefully* grow more tolerant. But civil rights evolution is never a straight line. Even today, in a country where racism is officially beyond the pale, we still hear repeated instances in the news of racial, gender, sexual, economic, and religious prejudice. This is why we still have civil rights divisions in the Dept. of Justice and civil rights attorneys. The work never ends.

In short, the people alone are not enough to create equality. Government must play a key role in defining and protecting freedom.

Cover Photo: From the 1963 March on Washington.
Source: http://bit.ly/1MKNRYx.

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