On February 3, 1939, U.S. Attorney General Frank Murphy created the Civil Liberties Unit of the Criminal Division of the Department of Justice (DOJ). Upon its formation, Murphy declared: “In a democracy, an important function of the law enforcement branch of the government is the aggressive protection of the fundamental rights inherent in a free people. In America these guarantees are contained in express provisions of the Constitution and in acts of Congress” [1]. Sometime between 1940 and 1941, the Civil Liberties Unit was renamed the “Civil Rights Section” (the press used the two names interchangeably for many years).
The creation of the Civil Liberties Unit, in addition to Frank Murphy’s overall leadership at DOJ, inspired and awakened the nation. The NAACP’s executive secretary, Walter White, wrote that Murphy’s heart would be warmed “if you knew how great is the satisfaction among colored people all over the United States at your presence in the… post of Attorney General” [2]. And the head attorney of the new unit, Henry Schweinhaut, recalled an awakening of the American conscious, with thousands of letters descending upon DOJ alleging civil liberties violations and requests for help [3].
The Civil Liberties Unit quickly investigated such cases as violations of the 13th Amendment’s prohibitions against slavery and involuntary servitude (specifically, debt slavery or “peonage”); violations of free speech, labor rights, and voting rights; and allegations that a white police officer had brutalized an African American in order to obtain a confession (United States v. Sutherland, 37 F. Supp. 344, N.D. Ga. 1940) [4]. But legal victories during this formative period were few and far between. DOJ attorneys struggled with the application of vague laws that were, for the most part, created during the Reconstruction era [5].
During World War II, the Civil Rights Section undertook an aggressive defense of African American civil rights. On April 4, 1942, for example, it was reported that the DOJ was “preparing to crack down on an assortment of Nazi and Fascist elements [who had committed] deliberate actions of violence against Negroes. Evidence linking the Klu Klux Klan and the Silver Shirts… had been uncovered by the Department’s civil liberties unit and the F.B.I.” [6]. The Silver Shirts was a racist, pro-Hitler, and anti-New Deal organization led by William Pelley, who was sentenced to prison for sedition in August 1942 [7]. In 1946, the Civil Rights Section and the F.B.I. began investigating the Klu Klux Klan in New York, Michigan, Tennessee, Florida, California, Mississippi, and Georgia [8].
By the 1950s, the Civil Rights Section was better-established and handled more cases. In fiscal year 1955, for example, it investigated 3,271 allegations of civil rights violations [9]. Voting rights remained a priority. In 1957, the Section obtained a conviction against a man who had mailed out deceptive voting literature to African American voters in Detroit. From 1956 to 1957, the Section and the FBI looked into allegations that African Americans were being purged from voter registration rolls in Louisiana by white citizens claiming registration application errors [10]. These and other cases the Section handled are eerily similar to schemes today, such as deceptive “robo-calls” made to African American voters [11], and “cross-check” systems that seem designed to purge African Americans and other minority groups from voting rolls [12].
A new Civil Rights Act in 1957 established the Civil Rights Division of the DOJ, and “all of the functions, records, property, positions and funds of the Civil Rights Section” were transferred over [13]. Thus began America’s modern era of more aggressive civil rights enforcement.
Today, the Civil Rights Section of the New Deal is almost entirely forgotten [14]. Yet, it handled many important cases and provided an important foundation for the later Civil Rights Division. According to one scholar, “the period from 1939 to 1954… was of critical importance to the subsequent development of civil rights… the activities of the newly created Civil Rights Section… are crucial to understanding emerging conceptions of civil rights” [15]. Frank Murphy biographer Sidney Fine argued that the creation of the Civil Rights Section was “an event of the greatest significance in the history of civil liberties in the United States… an essential first step in transforming the federal government into an aggressive defender of civil liberties against infringement by state and local governments and private parties” [16].
SOURCES
(1) “Murphy to Defend U.S. Civil Liberties,” Baltimore Sun, February 4, 1939, p. 1. (2) Sidney Fine, Frank Murphy: The Washington Years, Ann Arbor, MI: The University of Michigan Press, 1984, p. 80. (3) Ibid., p. 81. (4) Annual reports of the Attorney General of the United States, fiscal years 1939-1941, available at Hathitrust (accessed January 31, 2021); also see, “Boy Tells Jury Officer Burned Him With Iron,” The Atlanta Constitution, February 11, 1941, p. 15. (5) See note 2, pp. 80-81. (6) “F.B.I. Agents Cracking Down On Acts of Violence Against Race,” The Pittsburgh Courier, April 4, 1942, p. 4. (7) See, e.g., “Silver Shirts,” in James S. Olson (ed.), Historical Dictionary of the New Deal: From Inauguration to Preparation for War, Westport, CT: Greenwood Press, 1985, p. 453. (8) “F.B.I. Investigating Klan in 7 States, Clark Reveals,” Associated Press, in Fort Worth Star-Telegram, August 1, 1946, p. 4. (9) Annual Report of the Attorney General of the United States, For the Fiscal Year Ended June 30, 1955, pp. 130-131, available on Hathitrust (accessed January 31, 2021). (10) Annual Report of the Attorney General of the United States, For the Fiscal Year Ended June 30, 1957, pp. 106-108, available on Hathitrust (accessed January 31, 2021). (11) See, e.g., “Right-wing provocateurs charged with election felonies for racist robocalls targeting Black voters,” USA Today, October 2, 2020. (12) See, e.g., Jonathan Brater, “Voter Purges: The Risks in 2018,” Brennan Center for Justice, New York University School of Law (accessed January 31, 2021); and Greg Palast, “The GOP’s Stealth War Against Voters,” Rolling Stone, August 24, 2016. (13) Annual Report of the Attorney General of the United States, For the Fiscal Year Ended June 30, 1958, pp. 171-172, available on Hathitrust (accessed January 31, 2021). (14) For example, the Civil Rights Section is not mentioned on the “About the Division” web page for the Civil Rights Division, nor is it mentioned on the DOJ’s web page for Attorney General Frank Murphy (both pages accessed January 31, 2021). (15) Risa L. Goluboff, “The Thirteenth Amendment and the Lost Origins of Civil Rights,” Duke Law Journal, Vol. 50, No. 6, April 2001, pp. 1612-1613 (accessed January 31, 2021). Professor Goluboff is a former law clerk for Supreme Court Justice Stephen Breyer and is the current dean of the University of Virginia School of Law (January 31, 2021). (16) See note 2, pp. 79-80.
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