The Civil Rights Act of 1964

I just finished reading Clay Risen’s terrific book on the debate that culminated in the enactment of what he calls “The Bill of the Century.”  Here are some things that I learned:

1.  “Judge” Howard Smith, the segregationist chairman of the House Rules Committee, famously amended the Act to include “sex.”  I’ve always understood that this was a poison pill that failed to derail the bill.  It turns out, though, that Smith was a strong advocate for (white) women’s rights throughout his career.  So he may have been sincere (or at least have had mixed motives).

2.  Much of the debate early on centered on whether the Act should rely on the Commerce Clause or on Section Five of the Fourteenth Amendment.  The Commerce Clause was chosen for a couple of reasons, but one factor that I had not considered was that the Fourteenth Amendment was seen as a “Republican” way of handling the problem whereas the Commerce Clause was seen as the “Democratic” way.  That just shows how far we’ve come in the last fifty years.  Nobody today thinks of the Fourteenth Amendment in partisan terms.

3.  The book argues that LBJ gets too much credit for the passage of the Act, and that many other people (Hubert Humphrey, Mike Mansfield, Nick Katzenbach, Everett Dirksen) did more.  I think this assessment is correct, though I’m much more skeptical of the book’s implication that JFK would have gotten the Act passed had he not been killed.  Partly I suppose that’s because I’m not a JFK fan (for one thing, he gave us Justice Byron White, one of the worst modern Justices on a par with Blackmun and Burger.)


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7 Responses

  1. Joe says:

    I am going to read \”An Idea Whose Time Has Come\” which is on the same general subject.

    As to partisan, Shelby et. al. underline that there is a bit of partisanship at this point in these amendments, at least in some fashion. The 15A is not the 14A, but there is some overlap, including voting rights cases sometimes being 14A. Also, various 14A cases have split ideologically. The specific split you mention is interesting though.

    I also think the third point sounds true from what I gather. It also applies today. \”Obamacare\” is a bad term for a range of reasons. LBJ was someone given special credit (not just in the current Broadway play) but is great legislation now referenced with his name in the title? Is this the LBJ Civil Rights Act? No. Oh well.

  2. Joe says:

    The spam device seems to need to be refreshed sometimes — twice it read “***invalid***” which doesn’t work.

    Anyway, the citation of White in the comment also is interesting.

    I have mixed feelings on the guy myself, but on civil rights, at least racial and gender (putting aside abortion as a special case), White was a generally safe vote for the civil rights (as normally understood) side. Justice Ginsburg noted that he was a safe bet in gender cases, even going along on the draft case (6-3 loss). He also was a major supporter of congressional power, dissenting in the legislative veto case, for instance. Flagging him on this issue is a bit curious. So, voicing no comment on the personal opinions of those three justices, his appointment doesn’t really tell me much about JFK as such on this issue. The assassination did make the passage much easier though.

  3. Orin Kerr says:

    “he gave us Justice Byron White, one of the worst modern Justices on a par with Blackmun and Burger.”

    Why do you think Justice White was “one of the worst modern Justices”? I have heard a lot of complaints about the legal abilities of the Minnesota Twins, but not Whizzer White.

  4. Gerard Magliocca says:


    I have a hard time thinking of a Justice White opinion that was great (maybe the dissent in Roe?). And Bowers was terrible. Was he as bad as Blackmun and Burger? No. But was he anything other than mediocre? I would say no.

  5. Orin Kerr says:

    Gerard, first, why is the test for whether a Justice is “one of the worst” whether he wrote opinions that are “great” (whatever that means)? I would think the test for terribleness is consistently poor quality of legal analysis, which I have never associated with Justice White (or even heard of anyone associating with White).

  6. Gerard Magliocca says:

    Was his analysis of consistently good quality? I’ve never heard anyone make that claim.

  7. Orin Kerr says:

    I think of Justice White’s work as average or better-than-average for the Court on which he sat. Take the Court of 1970. White’s opinions are (to my mind) clearly better than those of Burger, Powell, Marshall, Blackmun, or Douglas.