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Federalism: A Hundred-Year Civil Rights Detour

The United States has long been held as a purveyor of equality and freedom, including inception based on freedom from tyranny and a Constitution that protects individual liberties from overreaching government power. However, the inherent nature of the federalist system pits states against congress and the president, and the intensely partisan nature of racial issues in the United States kept the federal government from enforcing the promises of Reconstruction, including the 13th, 14th, and 15th amendments. Because of legislative gridlock, and the fragile balance of power between the states and the federal government, this forced Civil Rights advocates, specifically the NAACP to focus on rights advocacy through the courts rather than pursue a legislative agenda outright within the federal government.

This can be seen in the initial years following Reconstruction, the shift in NAACP policy from labor and violence to focus on education, and the lack of government action following Brown v. Board Education.

In looking at the trajectory of the Civil Rights Movement, one must first look at the years following the Civil War and the creation of the Reconstruction amendments.

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After the Union had defeated the Confederacy in the Civil War, they had immense power and put pressure on the South to acquiesce to certain conditions in order to be admitted once again in the Union. This included the passage of the Civil Rights Act of 1866 as well as the ratification of the Reconstruction Amendments, including the 13th, 14th, and 15th amendments, which abolished slavery, granted citizenship to all born within the US, and provided voting rights to black citizens.

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Despite the sweeping language of the 14th amendment equal protection clause, and the duty of the states to protect black Americans under the Civil Rights Act of 1866, there was little enforcement from either the states or the federal government in the close to 100 years following their passage. As Vanessa Hahn Lierley explains, “One important power reserved to the state governments was the power to protect the rights of their citizens. States had their power to make laws and preserve and oversee the rights to their citizens.”

An important issue then became clear, if states were granted with the power protect their citizens, and yet were unwilling to truly adopt newly freed slaves as citizens, it created an apprehensive federal government who feared to encroach on states’ rights, and states that refused to act on behalf of their citizens. One of the reasons this occurred was the inherent vagueness of the language included within the 14th amendment, and because of this “the original intent of section one of the Fourteenth Amendment was and remains unclear” which subsequently left all the power the “United States Supreme Court [to] interpret and construct the meaning of the Fourteenth Amendment…and civil rights for African Americans… throughout United States history” (Lierley, 2013). The unwillingness of the federal government to uphold the rights they had granted to African Americans due to their role in the federalist system and the vagueness of the language in the Reconstruction amendments placed the fate and control of the Civil Rights Movement within the hands of the Supreme Court and subsequent lower courts.

Moving about 50 years in the future we see emerge a central issue for Civil Rights groups, that being of racial violence. In 1916, the NAACP had a fierce campaign against mob-violence and anti-lynching. As Megan Francis explains, the NAACP first attempted to work “legislative arena where it sponsored an anti-lynching bill and began a historic drive-in Congress in 1921” (Francis, 2019). The bill, although pushed through the House, failed in the Senate. Despite pervasive and intense lobbying efforts, it seemed impossible to get any federal legislation passed on this arena. The NAACP then tried to gain the support of the executive, again putting large amounts of pressure to get racial violence on the agenda. Although getting two public denouncements of racial violence from reluctant President Warren and Harding, their statements did not affect racial and mob violence as they continued to increase during their presidencies. Civil rights advocates became “exasperated with the pace of progress in the social and political arenas,” as Southern states were enacting segregationist Jim Crow laws and allowing horrific violence to ensue while the federal government sat idle unwilling to interfere with states’ rights, because of this, “the NAACP turned its attention to the courts” (Francis, 2019).

The NAACP pursued a criminal procedure case in the courts and led to a landmark decision in Moore v. Dempsey 261 U.S. 86 (1923), in which under the Due Process clause of 14th amendment the Supreme Court ruled that defendants subject to mob domination violated their right to a fair trial and due process. This case produced a huge shift in the trajectory of the Civil Rights Movement as it would continue to be pursued dominantly through rights litigation and relying on the courts to produce policy change rather than pursuing primarily legislative means. Although the political climate had stayed relatively the same, “what was new was a…legal climate that was increasingly hospitable to the rights claims of black workers” (Goluboff, 2009). Because the NAACP became litigation focused, it continued to need larger amounts of funding as “fundraising is critical to the creation, operation, and survival of rights organizations” (Francis, 2019). Because the NAACP had to rely on large donations from white donors, their focus on racial violence and economic issue got pushed off the agenda, and now the well-known civil rights focus on the desegregation in education took dominance.

As Francis puts it “education became the defining issue of civil rights law because whites at the Garland Fund believed it should be and not because the NAACP believed education represented a more viable doctrinal route available to black litigants” (Francis 209). If Civil Rights advocates would have had a more accessible path to creating federal litigation, they would have had to rely on white donors to a lesser extent and could have continued to pursue issues such as racial violence, potentially tackling issues in the past that we see continue to persist until today, i.e., through the Black Lives Matter Movement.

The focus on US courts and rights litigation led to one of the most well-known Supreme Court cases as well as a defining moment with the Civil Rights Movement, Brown v. Board of Education of Topeka 347 U.S. 483 (1954). Under this decision, the Warren Court ruled that separate is inherently unequal in public education and that educational facilities for different races violated the Equal Protection Clause under the 14th Amendment. The Court then mandated that public schools must be integrated with “all deliberate speed.” Because of the reliance on the courts to pursue change within the United States, we see the major issues that arise through rights litigation rather than legislative victories within Congress. As Alexander Hamilton wrote within Federalist Paper No. 78, “The judiciary does not influence either the sword or the purse… It may be said to have neither force nor will but merely judgment,” this may be no more evident than in the 10 years following the Brown decision (Hamilton, 1788).

In the immediate years following Brown, Southern public schools were just as segregated as they had been before the decision. While attempting to integrate a school in Little Rock, Arkansas in 1957, Governor Orval Faubus claimed he was protecting the black students from ‘mob violence’ instructed Arkansas’s National Guard to prevent the black students from entering the school, even after a ruling from a federal judge that mandated the integration must proceed. The federal government looked weak, unable to enforce states to comply with Supreme Court rulings. Concerned with the perception of federal power and the credibility of the United States as a whole, President Eisenhower was pressed to issue an executive order which forced the Arkansas National Guard to leave Central Rock High School and sent in US Army troops to maintain order and protect the black students as they attended Central Rock. Eisenhower made an executive decision, not because of any commitment to Civil Rights, but because he was “boxed into a corner and reached a point where he had to show the power of the federal government and chop off continued insurrection of southern segregationists” (Clark, 2020). The effect of the Supreme Court’s ruling in Brown was only enforceable to the extent that states’ bold rejection of the rulings had made the federal government look weak.

One may point to the legislative victories of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as well as the large social movements headed by Dr. Martin Luther King; the marchers in Selma, the sit-ins and freedom riders. The Civil Rights legislation passed in the 1960s was momentous and arose despite southern representatives claiming the unconstitutional nature of invading states’ rights to protect the individual liberties of their citizens. However, I argue that the basis of this legislation could only be passed through the hard work of civil rights lawyers and activists who created case law through the courts. The Civil Rights Act which banned segregation in public facilities passed 10 years after the Supreme Court ruled segregation in public schools unconstitutional. Because of the inherent nature of the federalist system, the federal government was unwilling to act to protect their black citizens as they feared the repercussions of invading states’ rights. Civil rights activists, exasperated, turned to the courts and used rulings to pressure the government to act. In a unitary system, theoretically, the federal government could have enforced the reconstruction amendments from the very beginning instead of having their hands forced by the judiciary.

While the federalist system in the United States is seen as a protector of individual freedoms and liberty, in many ways it was a large impediment to facilitate and protect its black citizens following Emancipation. This is obvious through the lack of civil rights legislation in the 100 years following the end of the Civil War, the policy changes in NAACP during the beginning of the 20th century, and the lack of action following the decision in Brown. Although legislation eventually made it onto the books, it did no more than to fulfill the promises made a century earlier. The judiciary was never meant to become a branch in which social policy was formed, but the lack of action from the states and the federal government required a robust rights advocacy to pursue actualization of the rights promised to their most vulnerable citizens.


  1. Clark, A. (2020, April 08). Why Eisenhower Sent the 101st Airborne to Little Rock After Brown v. Board. Retrieved May 27, 2020, from
  2. Francis, M. (2019, January 29). Law and Society Review [Review]. 53(1). Retrieved May 20, 2020.
  3. Goluboff, R. L. (2009). The lost promise of civil rights. Cambridge, MA: Harvard University Press.
  4. Hamilton, Alexander, John Jay, James Madison. The Federalist Papers.
  5. Lierley, Vanessa Hahn 1981-, “Badges of slavery: the struggle between civil rights and federalism during reconstruction.” (2013). Electronic Theses and Dissertations. Paper 831.
  6. Rosenberg, G. N. (2018, January 31). Gerald N. Rosenberg: Protecting Privilege: The Historic Role of the U.S. Supreme Court and the
  7. Great Progressive Misunderstanding. Retrieved May 27, 2020, from

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Federalism: A Hundred-Year Civil Rights Detour. (2020, Oct 01). Retrieved from

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