For a decade after the Civil War, the federal government sought to make good its promises and protect the rights of the liberated as American citizens. Most critically, in the Civil Rights Act of 1866, Congress created U.S. Citizenship and, in the Civil Rights Act of 1875, Congress guaranteed all American Citizens access to all public accommodations. Then, stretching from 1877 to the end of the century following the close of the Civil War, the federal government did nothing to assure that those rights were respected. Eventually, in Brown v. Board of Education, the Supreme Court started to admit that this was a problem, a clear failure to abide by our Constitution. But the Supreme Court (in Brown II) also made clear that it wouldn’t do anything about it. So things stood, until a bad man in high office made it his business to get the federal government again on the side of right, equality, and law. That man was Lyndon Baines Johnson. And while this story could be told in fascinating, exhaustive detail, these are its broad outlines. This piece originally ran as part of a Constituting America program on American history.
You can count on one hand the number of Supreme Court decisions that normal people can identify by name and subject. Brown is one of them (and, arguably, both the widest and most accurately known). And it’s place in the public mind is well-deserved, even if it should be adjusted to reflect more accurately its place in modern American history. This piece originally ran as part of a Constituting America program on American history.
March 2, 1877: The President Rutherford B. Hayes Electoral Compromise and End of Southern Reconstruction
Usually, breaking down history into chapters requires imposing arbitrary separations. Every once in a while, though, the divisions are clear and real, providing a hard-stop in the action that only makes sense against the backdrop of what it concludes, even if it explains what follows. For reasons having next-to-nothing to do with the actual candidates, the Presidential election of 1876 provided that kind of page-break in American history. It came on the heels of the Grant Presidency, during which the victor of Vicksburg and Appomattox sought to fulfill the Union’s commitments from the war (including those embodied in the post-war Constitutional Amendments) and encountered unprecedented resistance. It saw that resistance taken to a whole new level, which threw the election results into chaos and created a Constitutional crisis. And by the time Congress had extricated itself from that, they had fixed the immediate mess only by creating a much larger, much more costly, much longer lasting one. This piece originally ran as part of a Constituting America program on American history.
When Missing the Point is the Point: The U.S. Civil Rights Commission Demonstrates Why We Have Recusal Norms
In 2013, after the Obama Administration's Department of Education issued the first of three "guidance" letters related to the application of Title IX of the Education Amendments of 1972 to allegations of sexual harassment or sexual violence on college campuses, the United States Civil Rights Commission (America’s statutory guardian of civil rights since 1957) decided to undertake a narrow investigation into the conflict between the First Amendment and free expression, on the one hand, and sexual harassment law as applied on campus, on the other. But a funny thing happened between that decision and the Commission’s release, in January of 2020, of its related report seven years later. Catherine Lhamon, the Assistant Secretary of Education for Civil Rights who oversaw the preparation of at the last two of those rounds of “guidance[,]” became the Chairman of the Commission. And Chairman Lhamon had no interest in recusing herself from “grading” Assistant Secretary Lhamon’s previous work. No, instead, she oversaw the production of the Commission’s final report, published over her signature, with the odd title of “Free to Learn: Speech and Sexual Harassment on Campus[.]” Chairman Lhamon, sitting in judgment of Assistant Secretary Lhamon, assured that the Commission would laud her efforts and endorse the policies she implemented in her previous role. Missing the point that those policies reduced the civil rights of Americans (both those accused and those too afraid to speak lest they be accused of harassment) was the point. And the fact that, under Ms. Lhamon’s guidance, the Commission would take that stance demonstrates exactly why it is that America has norms requiring parties not to be their own judges, even where, as here, no law expressly forbids it.