Review Essay: Protecting Civil Rights: A Critique of Raoul Berger's History
60 Pages Posted: 11 Jan 2010
Date Written: June 1, 1979
The constant refrain of a governmental duty to protect, sounded throughout the debates on the Civil Rights Act of 1866, had different meaning for different legislators. To many it meant federal assurance of a remedy if the states failed - through either action or inaction - to protect the freedmen equally in the basic rights listed in the Act. Berger is probably right in keying this protection to the law in the states in the first instance. He is wrong in limiting it to discriminatory state legislation, however. Many legislators were concerned about racial discrimination in the law as applied; and many wished to reach discrimination occasioned by state inaction. Berger neglects the point - made by several speakers he quotes - that Congress already anticipated state failures to protect governmental rights. The "full and equal benefit of all laws and proceedings" definition of civil rights, therefore, was open-ended. It was tied to the changeable actuality of protections states would grant their own citizens.
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