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October 26, 2010

Nicholas Katzenbach’s Speech at Kirby Hall of Civil Rights Rededication

012 Former U.S. attorney general Nicholas Katzenbach spoke at the recent rededication of Kirby Hall of Civil Rights. His father, former attorney general of New Jersey Edward L. Katzenbach, spoke at the original dedication in 1930.

Below is the text of his speech:

When President Weiss first told me of the Kirby Hall of Civil Rights and that my father had been a speaker at its dedication in 1930, I was surprised. “Civil Rights” suggested a building devoted to promoting the rights of African Americans and women, and, while both my parents were liberal Democrats, I thought it unlikely that such purposes would be promoted with a large gift in 1930. I was right, of course. No mention of blacks or women, a good many words extolling the rights and privileges of white males and the legal system which protected and promoted those rights.

My equating civil rights with the struggles of blacks and women for equal treatment in our society was a reaction to the political developments of more recent years. I suspect many of you have made a similar connection. But civil rights are more complicated than simply who is included. There is also the difficult question of “What” – what are the rights and privileges we are talking about? And, thirdly, the “How” – how do we insure that those rights are realized? There is little to be gained from equal protection of the laws in a totalitarian state, as my father pointed out in 1930.

In calling attention to the What and the How of civil rights – subjects which were addressed at the dedication 80 years ago – I do not seek to minimize the importance of the “Who.” All three are important, although at various times controversy may revolve around one aspect more than others. Today, much of the Who concerns undocumented aliens or alleged terrorists, the What involves what rights, if any, such persons should have, and the How involves questions of the jurisdiction of state, federal, and military courts and how to deal fairly with classified evidence and national security concerns.

When some 30 years after the dedication of the civil rights hall, I joined Bobby Kennedy in the Justice Department, the public, and civil rights leaders, saw the controversy as largely in the Who category. The What assumed that the rights were those enjoyed by white males and the How was the responsibility of government, primarily the federal government. World War II had demonstrated the capacity of women to replace men in a variety of jobs theretofore reserved by custom for males. Despite segregated armed forces, blacks had fought bravely when called upon to do so, and it was not surprising, though controversial, when President Truman ordered the armed forces desegregated. Thurgood Marshall and the Legal Defense Fund had won key public education cases in the courts on aspects of unlawful segregation – unlawful not because it was separate but because it was unequal and enforced by state law. Then came Brown v. Board of Education, a direct challenge to segregation explicitly outlawing not inequality but racial school segregation itself as unconstitutional and implicitly declaring other forms of state laws segregating the races offensive to the Equal Protection and Due Process clauses of the Constitution. As a consequence, Dr. [Martin Luther] King and his followers were sitting in at restaurants and lunch counters, and massive arrests were taking place, often accompanied by brutal beatings of blacks by white supremacists ignored by southern police and even by the police themselves for alleged violations of state laws.

My purpose is not to dwell on the problems of the sixties which at long last led to the 1964 Civil Rights and the 1965 Voting Rights Acts, but to see them in a broader context. For example, what composed civil rights was not always as clear as its advocates appeared to think; state action requiring segregation was the necessary fact incorporated in equal protection or due process violations. To say this is not to question the justice of claims to equality of employment or the right to shop in stores or eat in restaurants without discrimination. It is merely to note that not all such rights were protected by law and many were simply taken for granted by whites, protected by choice, custom and economics or by white unions. Some acts of racial discrimination, of course, were required by unconstitutional state laws. Voting was conceded to be a right of African American citizens, but literacy tests, if fairly administered, were not clearly a violation of the Constitution nor were poll taxes. Discrimination in public accommodations was not always supported by laws requiring racial segregation. After Brown, school segregation of the races supported by state or local law was unconstitutional irrespective of claims of equality, but how the Supreme Court expected desegregation to be accomplished – even with “all deliberate speed” – was not too clear to those of us in the Justice Department at the time who had that enforcement responsibility. In the Justice Department, we faced some What problems and even more How difficulties.

Courts are used to having their orders voluntarily complied with or enforced by a marshal serving an appropriate court order, more symbolic than an exercise of real power. Enforcement was left essentially to voluntary compliance. But President Eisenhower had been forced in 1956 to use armed forces to enforce the court order desegregating public schools in Little Rock, and the idea of voluntary compliance with Brown obviously was not possible in the Deep South. Similarly, state law enforcement officers were beating and jailing citizens for exercising other rights clearly protected by the Constitution. State registrars were refusing, in wholesale fashion, to allow qualified blacks to register to vote. Civil Rights groups, understandably, were demanding the federal government protect both their rights and their personal safety from police interference and the vicious beatings by white supremacists. The How of civil rights was in shambles because state officials, including courts, simply refused to comply with the Constitution as interpreted by the Supreme Court. Enforcement appeared to depend on actual force – not on compliance with clear legal rules or even the symbolic service of an order – with the distinct possibility of confrontation of federal officials with state and local police absent overwhelming military force.

I want to emphasize the How simply to point out that every legal right and privilege we have in our society depends to a huge extent on our acceptance of the legitimacy of duly enacted laws or Constitutional mandates and voluntary compliance. Put differently, underlying all our civil rights in our democratic society is what we call the rule of law. In theory all law is ultimately enforced by the use of force but actual force is in reality far more often the exception than the rule. The rule of law means simply that people, including government officials at all levels will attempt in good faith to obey the laws in our society. Obviously not everyone does; crimes are committed and criminals forcefully arrested. Further, the scope of a law is sometimes disputed and must be adjudicated before compliance is required or non-compliance punished. There can be good faith disagreement as to what a rule requires, although most laws are quite clear. Where, however, there is dispute – whether or not in good faith – as to the facts or the reach of the law, we rely on courts to make the most reasonable choices. That can be a painfully slow process to those who want their rights enforced now.

To say this does not mean that all laws are seen as fair and just by all segments of society or that it is the role of courts to make them so. That is the job of the legislature. In our democracy, we seek to make change possible by peaceful means through the legislative process; all citizens can vote, free speech, a free press and separation of church and state are all intended to encourage rational policies and the Constitution is intended to guarantee political freedoms essential to a free and peaceful society hopefully capable of governing itself. Our political system, developed over two centuries, is simple in concept but hugely complex in reality. Most importantly, it is the justification for the rule of law and must be made to work to be accepted by the public.

Southern state courts and officials never accepted the legitimacy of the Brown decision. For decades before Brown, segregation had been held by the Supreme Court to be constitutional so long as it was also “equal”, and the south accepted this “separate but equal” concept although equality was almost never a fact. Desegregating all the thousands of public schools, even with “all deliberate speed” (whatever that meant), ordered by nine men in Washington, was simply such a fundamental social and political change they refused to accept it. The How problem was very real. Using force on a massive scale to enforce the law was unavoidably destructive of the fundamental values of a democratic society.

The significance of the 1964 Civil Rights Act lay in the fact that both political parties in congress came together to support the claims of blacks and women to equal opportunity in our society. Thanks to television and a free press, the general public saw in their own living rooms what was occurring in the Deep South and sought an end to unjustified violence. For the first time a filibuster aimed at defeating civil rights legislation was itself defeated by the votes of over seventy senators of both parties. It did not put an end to bias and prejudice, but it refused to condone lawlessness.

What was important was that this process solved most of the How problem. There were many white citizens in the south who saw that violent resistance was destroying other values and that there was really no viable alternative to complying with the law voluntarily whether they liked it or not. Nothing in the 1964 act solved the How problem by giving the federal government extensive new powers of enforcement. Enforcement continued to depend largely on voluntary acceptance of the democratic process – a process reinforced by the Voting Rights Act of 1965.

I do not want to suggest that the Civil Rights legislation secured instantaneous equal rights of either blacks or women. Almost a half century later, problems of discrimination exist and there is far too much bias and far too little understanding of race or the rights of women in our society. In addition, rights and practices designed to promote equality have been chipped away by both legislation and judicial decisions. Still, we are very long way from the violent resistance of the ‘60’s.

I do want to emphasize the importance of accepting the democratic process even when we don’t like a particular result. In my view, it was important that both political parties supported the civil rights legislation. Given a need to act responsibly, Congress did. Not all Republicans supported it, and most of the opposition came from southern Democrats. But there was no invective, no accusations, no abuse of the institution, no spreading mistrust of members because of their views.

The low regard in which government, particularly the legislative branch, is held today is a danger signal we should not ignore. The two parties find it difficult to work together; far worse are the unfounded accusations made by party leaders in and out of Congress about the other, the extent to which the parties themselves have been captured by their extremes, and the extent to which the need for money to finance elections is influencing policy. The political parties are dividing our country, not uniting it. I doubt this country can be governed from the extreme right or the extreme left, and I think a united party vote is almost always a cause for concern. If a lack of respect for congress translates into a lack of respect for what it does or what it fails to do, we will inadvertently destroy that respect for law which is the cornerstone of our democracy and the freedoms we enjoy.

As I said at the outset added to the continuing problems of racial bias and male prejudice, we have some important new ones with respect to immigrants, with respect to challenges to our justice system from our fear of terrorism, from our military ventures abroad, from efforts of some to incorporate religious doctrine into government policy, and from problems of government secrecy. We look for quick and easy solutions to problems which have no quick or easy solutions. Too often we reject science and reason simply because they suggest that difficult problems cannot be solved instantly or painlessly. Surely Dr. King demonstrated that dreams are not realized overnight or without sacrifice. It is crucial that we emphasize how many fundamental values unite us, and seek understanding of those which divide us. Understanding and rational solutions take time and effort and are not promoted by invective, arrogance, or certainty that one knows the answer.

I say all this on the eightieth anniversary of the [Kirby Hall of Civil Rights] with the certainty that we will have civil rights problems to resolve as long as we have a democracy which permits their peaceful resolution. As they did eighty years ago, I believe that eighty years from now, those rights hopefully will continue to rest on a system which makes all such rights possible because we accept a political process which permits, within the Constitution, change in the Who, the What, and the How while preserving a legal process on which such rights ultimately must rest. There is, I hope and pray little possibility that the civil rights hall will not be the active center on this campus promoting the values of our society by analyzing various problems and the need to resolve them, while protecting a free political system under law.

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