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Historical Perspective The Civil Rights Movement’s Early Embrace of Human Rights by Raymond M. Brown ost Americans accept that their free - not or will not afford protection and redress for local aggres - doms are protected by the Constitu - sions for colored people, the national policy of the United tion and the Bill of Rights. To many, States... becomes involved, and at the national policy level the the human rights concept applies in UN can take jurisdiction and receive the complaints presented foreign lands like Bangladesh, North by national organizations. A national policy of the United Korea, the Congo, Nigeria or Kaza - States which permits disenfranchisement in the South is just as khstan. However, after World War II, a broad segment of the much an international issue as elections in Poland or the denial M 5 leadership of the civil rights movement embraced the human of democratic rights in Franco Spain. rights idea 1 and its evolving international law and United Nations (UN) framework. This article focuses on this embrace. Houston and other elements of the civil rights leadership The article suggests the idea that this embrace can provide looked to human rights for relief in the post-war era, in part inspiration for Americans in the 21st century to utilize the because they had not been able to rely on the U.S. civil rights human rights concept more fully in domestic contexts. regime for relief. Houston, perhaps more than any other pre- war leader, had the credentials to make such a judgment. Appealing to the United Nations Houston has been aptly called “the chief engineer and the In 1946, legendary civil rights attorney Charles Hamilton first major architect on the twentieth-century civil rights legal Houston publicly supported the National Negro Congress scene” by A. Leon Higgenbotham Jr., former chief judge of the (NNC) in filing a petition with the United Nations Economic United States Court of Appeals for the Third Circuit. 6 Houston and Social Council (ECOSOC). 2 The NNC sought to have a “spawned” 7 Thurgood Marshall as a civil rights lawyer and United Nations Human Rights Commission subcommittee Houston initiated the legal assault on the “separate but equal” assist in the elimination of race-based discrimination in the rationale of Plessy v. Ferguson ,8 with his stewardship of the United States. The NNC document was called a Petition to the plaintiff’s case in Missouri ex rel Gaines v. Canada .9, 10 In Gaines , United Nations on Behalf of Thirteen Million Oppressed Negro Cit - Houston persuaded the Supreme Court of the unconstitution - izens of the United States of America .3 Responding to NNC crit - ality of Missouri’s practice of paying tuition for blacks who ics, who claimed that discrimination was a purely internal were otherwise qualified to attend the state university’s law U.S. question, Houston offered a defense of the NNC petition school to attend out-of-state law schools rather than the state in his column called The Highway in the African-American school. newspapers. In that column, entitled an Appeal to UN by Judge Higgenbotham has observed that “the decision in Minorities in Order ,4 Houston took the position that: Gaines paved the way for the ultimate victory in Brown v. Board of Education .” 11 Although Houston was lead counsel in ...It may be true that the UN does not have jurisdiction to inves - many seminal civil rights cases before the Supreme Court, he tigate every lynching ...or denial of the ballot.... But where the died in 1950, prior to the decision in Brown .12 However, as a discrimination and denial of human and civil rights reach a lawyer who spent a lifetime seeking constitutional relief, his national level, or where the national government either can - response to the new human rights regime is conceptually and NJSBNA J.SCBOA M.COM NEW JERSEY LAWYER | February 2014 33 symbolically important. gain those rights and keep them. To was home to “thirteen million Houston’s spirited defense of the that high concept there can be no end oppressed negro citizens.” Roosevelt’s human rights idea is important not just save victory. (Emphasis added) death on April 15, 1945, deprived him because it reflects a larger tendency of the opportunity to address these con - among civil rights leaders but because it The Atlantic Charter, executed by tradictory forces at the founding United emphasizes a combination of despera - Winston Churchill and Roosevelt in Nations’ Conference on International tion and vision at a time when the idea Aug. 1941, set forth certain “common Organization beginning on April 25, in of human rights was still in its embry - principles,” including the right of “all San Francisco. onic stage. The desperation was rooted peoples” to choose their own forms of in the reality that lynching remained government and general rejection of the “Fireworks Erupt” in San Francisco the paramount post-war issue for blacks. use of force in international relations. Shortly after April 25, 1945, and prior The vision involved the need to chal - Roosevelt’s Atlantic Charter anniversary to the drafting of the UN charter, a now lenge a Jim Crow regime that affected message, in 1942, noted the allies had infamous meeting 15 was held at San blacks in every aspect of political and embraced a program reflecting: Francisco’s Fairmount Hotel on Nob economic life. The human rights idea, Hill. The meeting was attended by rep - originally conceived as an antidote for [F]aith in life, liberty, independence, resentatives of 42 non-governmental war not as a platform for blacks in and religious freedom, and in the organizations (NGOs) 16 who had been America, had a great appeal as a possible preservation of human rights and jus - asked by the State Department to serve strategic tool. tice in their own as well as in other as “consultants” to the official U.S. del - lands, [it] has been given form and egation. One of the consultants was A “High Concept” as “War Aim” substance as the United Nations.” Walter White, executive secretary of the Rhetorical and political discussion of (Emphasis added) National Association for the Advance - the human rights concept was intense Although Roosevelt characterized ment of Colored People (NAACP). His during World War II. H. G. Wells’ letter human rights as a “high concept,” his inclusion resulted in part from a letter to The New York Times shortly after the emphasis on its linkage to war reveals written by former executive secretary German invasion of Poland in 1939 had his practical reason for advancing the and then staff member W.E.B. Du Bois a catalytic effect on the discourse. 13 Wells idea. He and Churchill shared a belief to Secretary of State Edward Stettinius, called for a broad public “war aims” dis - that second only to winning the war asking if: cussion, including updating principles was a need to ensure the West would found in the “Magna Carta and going not face future “world wars” like the any provision will be made for the rep - through various Bills of Rights, Declara - two they believed had been initiated by resentation of American Negroes at tions of the Rights of Man and so forth.” German aggression in the first half of the San Francisco meeting in order It is unclear whether President the 20th century. that they may advocate and advise Franklin Roosevelt was influenced by Western leaders identified political measures for their own social progress Wells’ challenge. Nonetheless, Roo - disenfranchisement and economic and also be given opportunity to speak sevelt’s “Four Freedoms Speech,” deliv - inequality as the dry tinder that fed mil - for other peoples of African descent ered in Jan. 1941 as his State of the itary aggression. (This explains why the whom they in a very real sense repre - Union Address, ends with an unmistak - four freedoms included “freedom from sent. 17 able linkage of future war aims and want,” an economic idea not fully human rights. (Recall that the U.S. encompassed by the U.S. constitutional White reported he received an would not enter the war for 11 months or civil rights framework.) Roosevelt and unpleasant surprise at the Fairmount after the speech.) Churchill also accepted the legal notion Hotel gathering: that, in some cases, international law This nation has placed its destiny in the supersedes domestic law. 14 Fireworks erupted at the first meeting hands and heads and hearts of its mil - In advocating human rights, Roo - of delegations and consultants when lions of free men and women: and its sevelt and Churchill were immersing Mr. Stettinius, apparently nervous and faith in freedom under the guidance themselves in conflicting crosscurrents. embarrassed at being required to of God. Freedom means the suprema - Churchill presided over the largest make such a report, announced that cy of human rights everywhere . Our imperial project on Earth. Roosevelt the American delegation had decided support goes to those who struggle to governed a rising world power, which neither to introduce nor support a 34 NEW JERSEY LAWYER | February 2014 NJSBA .COM human rights declaration as an inte - ations from the scourge of war , which installation of a mechanism to protect gral part of the charter which the twice in our lifetime has brought them. For White and Du Bois, there was nations had gathered to draft. All of untold sorrow to mankind, and to the additional challenge of wanting to us sat in stunned silence. 18 reaffirm faith in fundamental human bring these developments to bear on the rights , in the dignity and worth of the conditions of African Americans. The other consulting NGOs included human person, in the equal rights of The adoption of the charter in June the American Bar Association, the Amer - men and women and of nations large 1945 was followed by the appointment ican Jewish Committee, the U.S.