America's Struggle to Secure Civil Rights

TWO recent books are utterly different reading experiences, but they have a common theme: the struggle of Americans to make their democracy inclusive of all citizens, regardless of race.

Danny Lyon traces three pivotal years - 1962 to 1964 - in the student-led civil-rights campaign that helped demolish legal segregation in the Deep South. Andrew Kull traces a century and a half of legal reasoning that led, via a curiously twisted route, to the courts' dismantling of the legislative superstructure of racial discrimination throughout the United States.

Danny Lyon was staff photographer for the Student Nonviolent Coordinating Committee (SNCC) during the early 1960s. His book, Memories of the Southern Civil Rights Movement (University of North Carolina Press, 192 pp., $39.95 cloth, $19.95 paper), reflects the emotions and idealism of those times. As an undergraduate at the University of Chicago in 1962, Lyon felt history beckoning him to go south and offer his services to a then fledgling SNCC. He was part of a small but active contingent of white studen ts in the organization. Ultimately, they would clash with a black leadership that became increasingly militant as the decade progressed. But through Lyon's years with SNCC, there was a remarkable degree of colorblindness among the youthful revolutionaries.

The liveliness of Lyon's work belies its pedestrian title. It is, as billed, a collection of memories. But the content of those memories can still stir a moral storm, even 30 years later - and decades after Jim Crow segregation was banished from the South.

Consider, for example, the treatment given four black women in the little town of Winona, Miss., in June 1963. They were jailed and then viciously beaten by the local police on the suspicion that they might try to stage a demonstration in the town. Lyon includes the typewritten depositions given by the women a few days after the incident. Such accounts - sprinkled with the original misspellings and grammatical lapses - are inserted throughout the book. They, along with the author's photography, give the book a gritty immediacy.

Much of Lyon's own writing deals with the young black leaders who spearheaded SNCC. The student movement, in its early years, was shaped by the strategic talents and profound commitment of figures like James Foreman, Robert Moses, and John Lewis. The movement's leaders - black and white - applied the principles of nonviolence with remarkable courage. Their work hasn't been as widely lauded as Martin Luther King Jr.'s, but it was indispensable to cracking the foundations of segregation.

SNNC's lasting image in the public mind, however, was shaped by later militant leaders like H. Rap Brown and the motto "black power." The need to affirm racial identity eclipsed the earlier, single-minded purpose of breaking through prejudice.

That same kind of dynamic, though with different implications, has been at work in legal thinking since the earliest days of the drive to abolish slavery. In The Color-Blind Constitution (Harvard University Press, 301 pp., $35), Andrew Kull, a professor of law at Emory University in Atlanta, does a scholarly but readable job of laying out the continuing tensions between two views of American democracy: one that sees race, or color, as a "constitutional irrelevance" and another that says the legitimate pu rposes of government require attention to racial categories.

In the earliest days of litigation over the issue of race - such as the 1840s battle in Boston to do away with separate schools for blacks and whites - abolitionist giants like Wendell Phillips and Charles Sumner put forward classic arguments for a policy of nondiscrimination - "colorblindness." The local authorities countered with the need to use discretion in the "best interests of the children," and they won.

After the Emancipation Proclamation, which made slavery illegal but did nothing to secure the rights of freed slaves, Phillips argued that the post-Civil War amendments to the US Constitution should include a specific prohibition of racial discrimination. But that assertion of colorblindness gave way to the purposefully vague "equal protection" and "due process" clauses of the 14th amendment - which, as history shows, have been subject to endless judicial interpretation.

Kull analyzes at length the thinking that went into the formulation of such hallmarks of colorblind theory as Justice John Marshall Harlan's 1896 dissenting opinion in Plessy v. Ferguson. That case, involving racially segregated rail cars, promulgated the "separate but equal" doctrine. In a lone voice, Harlan's dissent advanced the idea that racial distinctions were an area that government should be banned from altogether. "Our Constitution is colorblind," he wrote, "and neither knows nor tolerates class es among citizens."

That ringing affirmation was drawn on regularly by civil rights litigants in the decades following. In the end, however, it didn't prevail as the law of the land - despite the assumption of most citizens that it is true. While the high court proceeded to rule against racial discrimination in most of the cases that reached it in the century after Plessy, it did so on more limited grounds than the impermissibility of racial distinctions, per se.

Even in Brown v. Board of Education, the landmark 1954 case that struck down laws requiring segregated schools, the court avoided any outright endorsement of colorblindness.

Kull concludes that the high court's caution was dictated by its awareness of the political climate it operated in, as well as by its perception of the need to preserve government's ability to make racial distinctions when they served an important end. In recent times, of course, that end has been to redress the centuries of racial bigotry that have kept black Americans from attaining an equal place in society. Affirmative action and colorblindness don't mix.

Kull leaves readers wondering whether the road not chosen - genuine colorblindness, a clear ban on racial distinction in making law - wasn't the best one. For one thing, he suggests that if that were the standard, the only way to get at the problems that still beset millions of ghettoized black Americans would be through truly comprehensive programs aimed at their economic plight. The affirmative action alternative, he argues, merely picks at the edges of this massive national problem.

Kull's reasoning, as this argument illustrates, is unfailingly intriguing - as is the intellectual history he chronicles. His work gives readers the tug and pull among ideas that led to, and for a time interacted with, the street-level history illuminated by Lyon.

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