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Wednesday, February 17, 2010

Strategic Constitutionalism and Resistance to Brown

In The Ghost of Jim Crow, Anders Walker has written such an interesting and provocative study of the efforts of “moderate” southern leaders to resist Brown that it is difficult decide which thread to pick up.  Let me briefly highlight what I see as several particularly valuable contributions Walker makes to the history of the post-Brown South.  Then I will turn to one of the broader, more theoretical claims of the book—that the moderates practiced a distinctive “strategic constitutionalism”—and suggest some possibilities and limitations of this concept.

One of the great strengths of this book is that Walker takes seriously state-level governance.  This is partly a product of his choice of protagonists for the book—Mississippi Governor J.P. Coleman, North Carolina Governor Luther Hodges, and Florida Governor LeRoy Collins—three men who obviously took seriously the capacities and limitations of the state as a governing institution.  Walker makes the valuable point that the defense of segregation in the aftermath of Brown was not just a continuation of practices and policies that had been previously established as bulwarks for Jim Crow.  Rather, it demanded significant innovation.  It required creative thinking and collaboration. Walker is particularly good at charting the network of influence between the southern states.  The governors he profiles were in regular contact with one another, comparing strategies and sharing policies.

The moderate defense of segregation was, in short, very much a political process, demanding the creation of new governing institutions and reforms to existing ones.  The process of centralization that civil rights activists demanded from the federal government was replicated on the state level, with southern governors pushing programs designed to centralize and modernize state institutions.  This was all part of an effort to exercise more control over the twin threats to their moderate path: the civil rights activists one side; the KKK and other segregationist extremists on the other.  In this way, the moderates were at once defenders of the old racial order and modernizers—an apparent paradox that Walker’s book helps to explain.

While the central contribution of the book is in flushing out of the historical record of the defense of segregation in the wake of Brown, Walker also draws out some broader claims from his material. A central claim he makes is that the moderates embraced a distinctive vision of constitutional development: “strategic constitutionalism.”  I found the concept of strategic constitutionalism suggestive, but ultimately underdeveloped as a theoretical framework for his study.  References to strategic constitutionalism appear periodically throughout the book, although it never receives a sustained analysis.  As I understand it, strategic constitutionalism is a kind of constitutional claim-making by indirection.  When faced with an interpretation of the Constitution that one opposes, rather than marshalling lawyers, writing briefs, and going to court, a strategic constitutional response would be to focus on the world of politics and culture.  The goal is to influence public opinion and forge political alliances. After Brown, the moderates sought to demonstrate to the nation that the South was not dominated by demagogues, that there were reasonable explanations for why the white South might not want to embrace integration.  If successful here, they assumed, Brown’s reach would be limited.  The constitutional meaning of equal protection would, in effect, move closer to the moderates’ position and further from the NAACP’s.

This is all surely right.  And this general approach, which emphasizes the extrajudicial component of constitutional change, seems a perfect framework for Walker’s book.  But I like to see the concept flushed out a bit more.  How generalizable a concept is strategic constitutionalism?  Were the moderate opponents of Brown distinctive in recognizing the role of political support and public opinion in dictating the ultimate meaning of Brown?  This cannot be right.  Even if the NAACP lawyers put exaggerated faith in the power of a Supreme Court opinion to break the back of Jim Crow, the civil rights community fully recognized that the battle was one for the hearts and minds of the American people, and that this battle for public opinion was ultimately a battle for constitutional principle.  So were Roy Wilkins and Martin Luther King, Jr., also practitioners of strategic constitutionalism?  For this matter, couldn’t we say that the extremists defending segregation also recognized the core insights of strategic constitutionalism?  While, as Walker emphasizes, their tactics were ultimately counterproductive, helping to shift national opinion behind the civil rights movement, for a time Massive Resistance helped unify the South and sent a clear message to the nation that Jim Crow was not going to go down easily.  And this surely had constitutional consequences, emboldening southerners in Congress to continue their stand against civil rights reform, challenging the liberal faith in the capacity of legal reform to uproot entrenched social practices, and discouraging further interventions by the Supreme Court.  (With the limited exception of Cooper v. Aaron (1958), the Court was conspicuously silent on the question of school desegregation for a decade after Brown.)  At this point I begin to wonder whether there is anything but strategic constitutionalism.  Even the most litigation-centered reform campaigns must recognize that politics and public opinion play a role in the success or failure of their causes (regardless of whether or not they secure victories in court). 

One more point on strategic constitutionalism.  While broadening the definition of constitutional claim-making to include extrajudicial contexts, Walker seems to fall back on a traditional conception of the ultimate target of these constitutional claims.  Creating political and popular support for the moderate defense of segregation was a means to a specific end: to convince the Supreme Court to issue decisions favorable to the cause of the southern moderates. Strategic constitutionalism, Walker writes in the introduction, was “aimed at convincing the Supreme Court to qualify its Brown holding.” But why not extend the insight from means to ends? An acceptance of extrajudicial action as a method of constitutional argument would seem to invite a broadening of the ultimate targets of these constitutional claims.  Extrajudicial actors are not just intermediaries between those who hope to influence constitutional law and the Supreme Court’s promulgation of constitutional doctrine.  They should also be recognized as the ultimate audience for constitutional argument.  Certainly a central goal of strategic constitutionalism was to convince the Supreme Court to deliver opinions supportive of the position of southern moderates, as it did, for instance, when it upheld pupil placement plans in 1958.  It would seem just as consequential, however, to consider other targets: lower federal courts, of course, particularly since most of the burden of implementing Brown was left to them; but also political actors—members of Congress, who let the Court stand alone on the desegregation issue for a decade; and executive branch officials who had responsibility for enforcing civil rights laws.  Extrajudicial constitutionalism—strategic or otherwise—should be recognized as more than just an alternative pathway to influencing the Supreme Court.

While these comments about strategic constitutionalism are, in part, critiques, hopefully they also indicate the rich potential Walker’s history contains for expanding our understanding of constitutional development.  I hope to see Walker continue to explore these issues in his future work.

Posted by Chris Schmidt on February 17, 2010 at 02:45 PM in Books | Permalink


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Jackson Pollack raises a central question, one that lies at the heart of my current project on Lewis F. Powell, Jr. and southern pluralism. Though most scholars of diversity and pluralism tend to rely on Horace Kallen and Randolph Bourne's northern version of multiculturalism (one in which diversity and equality co-exist), southern pluralists like the moderates in my book, and Lewis Powell, saw equality as unrelated, if not antithetical to true diversity. This, to my mind, represents a darker, perhaps even gothic counter-narrative to the Kallen/Bourne thesis, one that both celebrates difference and embraces inequality, at the same time. Indeed, difference and inequality were, in the minds of Powell, Collins, Hodges, et al. inextricably linked. This helps to explain the riddle of how governors like Hodges and Collins could express admiration for black culture meanwhile emphasizing black "shortcomings." In their vision of a truly organic society, difference was to be celebrated and respected, but equality was not to be achieved. Why? Equality, to them, implied the absence of difference, and the end of culture. Examples of white southerners who adhered to this view crowd the shelves of southern literature and politics, including the likes of Robert Penn Warren (post BriarPatch/ pre-Yale), Allen Tate, John Crowe Ransom, William Alexander Percy, Eudora Welty, Flannery O'Connor and so on. Indeed, I would not be surprised if this was Harper Lee's position, one that she herself realized was untenable in the eyes of northern liberals, the very people who, ironically, canonized her book as an epic of the civil rights era. (Remember, Atticus Finch fought for justice, but justice and inequality were not linked in his mind. Indeed, southern notions of justice were Aristotelian in nature, more based on things being in their appropriate place, not everything being the same).

While we might recoil at this vision, it bears recovering. Not only does it explain why Justice Powell rejects black claims for reparations in Bakke, but it also explains his bizarre formulation of whites as a conglomeration of minorities, all of whom have suffered at the hands of the law themselves, including even the Anglo Saxon, or what Powell calls the "new minority."

That Powell canonized diversity is both ironic and, I would argue, worthy of closer scrutiny.

Posted by: Anders Walker | Feb 19, 2010 12:28:15 PM

Both Chris and Willoughby are correct to point out that extra-judicial movement actors may impact constitutional law in ways that they do not consciously intend. Since the 1980s, social movement scholars have identified the manner in which movement actors perceive what they are doing as framing, a process by which individuals perceive a problem and then proceed to address that problem through some form of action, or mobilization. Pursuant to this theory, there is room for movement actors to both perceive problems differently, and take different action, yet remain loosely affiliated within the same "master" frame. So, for example, the Greensboro sit-in demonstrators may have been situated within the same master frame as Thurgood Marshall and Roy Wilkins (i.e. the civil rights struggle), yet differed in that they did not see their actions as directly impacting constitutional interpretation (even though it did). It is individuals who acted extra-judicially but with the conscious intent of influencing constitutional interpretation that interest me most, precisely because they have been relatively under-theorized. This helps explain my use of the term strategic constitutionalism, which I read as a particular type of constitutional framing, one that is deliberately aimed at a constitutional result but does not employ litigation. To my mind, the term augments rather than eclipses more traditional understandings of social movement framing, understandings that date back to David J. Garrow's Protest at Selma and, more recently, work by David A. Snow, Ellen Ann Andersen, Robert D. Benford, and others in sociology and political science.

Posted by: Anders Walker | Feb 19, 2010 1:46:03 AM

These are fascinating questions about how to define extrajudicial constitutionalism. I agree that the main strength of this book is that it lays out the multifaceted strategy of those who sought to maintain the segregated status quo. It also shows, as Walker points to in his last post, how Roy Wilkins, notably an NAACP strategist, and other civil rights activists responded to this extrajudicial strategy directly–for example by using the media or revving up mass demonstrations in an attempt to provoke violence. This battle over the terms of the desegregation debate, the very language used to define civil rights, undercuts the long-held historiographic separation between the NAACP’s legal tactics and the grassroots movement. It appears that they were never as far apart as we as historians or perhaps the participants themselves have long believed.

I’m not sure how central the actors’ intentions should be in thinking through this broader understanding of civil rights history. Schmidt rightly points to sit-in demonstrators’ vision of their actions at the time as not necessarily changing constitutional interpretation, and Bull Connor never in a million years expected to influence first amendment jurisprudence in Sullivan. Many of the “demonstrators” reported by the national media as participating in the Birmingham movement were actually neighborhood residents and on-lookers, not necessarily activists. And although we may never know their intended contribution to those events, we do know that their actions in throwing bottles and rocks helped to provoke the violence that some historians credit as creating public support for civil rights legislation.

What we seem to be wrestling with is, as Kenneth Mack phrased it in a recent Law & History Review article, “how to put the law back in civil rights history” – to bring together the social and cultural history of the movement with the legal history tradition focused on Supreme Court decisions and legal institutions. Even looking to extrajudicial currents helps to bridge this gap, but it does make for a somewhat amorphous inquiry. As Walker presents it, the moderate governors practiced a “strategic constitutionalism” in that their tactics were designed to buffer the effects of constitutional decisions and ultimately influence later Supreme Court decisions. This creates a direct link of the extrajudicial to a change in constitutional law. But isn’t there something to the idea that extrajudicial constitutionalism can encompass something beyond actors intending to change the letter of the law?

Posted by: Willoughby Anderson | Feb 18, 2010 2:21:23 PM

Anders, I’m glad you’ve drawn attention to your argument involving the ways in which state-level reforms seemingly unrelated to the desegregation struggle—welfare rights, family law, police jurisdiction—influenced (and were intended to influence) the implementation of Brown. This is certainly one of the most exciting and valuable parts of your book, and it was only because the book raised so many other important issues that I didn’t spend more time on this in my initial post.

To return to the challenge of creating an adequate theoretical model for extrajudicial constitutionalism (something I’ve been struggle with in my own work), here are some questions I have. How important are the intentions of the actors? If we want to argue that the moderate southern governors were engaged in strategic constitutionalism while the white extremists were doing something else, does this judgment depend on solely on their motivations? What about the effect of their actions on constitutional law? Should we limit the category of strategic constitutionalism to those who pursue political action with the conscious intention of changing constitutional law?

In attempting to address these questions, let me offer two observations. First, if we use evidence of conscious intentions as a necessary criteria for participating in some sort of extrajudicial constitutional project, we risk excluding individuals and groups who clearly played a role in shaping the meaning of the Constitution. I’ve written about the student sit-in movement of 1960, for example, in which the protesters generally did not see themselves as challenging constitutional law. That was what the NAACP did, and the students sought to differentiate themselves from the older, more legalistic generation of civil rights activists. Yet surely they were central actors in a debate over the scope of the equal protection clause in the early 1960s. Second, even if we focus on intentions, it would seem that some white extremists (if not perhaps Wallace) were deeply interested in shaping the meaning of the Constitution—James Kilpatrick, the editor of the Richmond News-Leader, for example, whose views receive an excellent analysis in The Ghost of Jim Crow.

Posted by: Chris Schmidt | Feb 18, 2010 11:24:57 AM

Rather than focus on legal repression, they endorsed cultural pluralism and uplift, claiming that black culture was unique and should be preserved, free from white interference. Meanwhile, they invalidated common law marriages and cut state benefits to unwed mothers, then judged black families for having low moral standards.

I have not read the book. But the idea that cultural pluralism was a tool of Jim Crow to retard social integration and social equality for blacks – that Southern moderates used the apparatus of state governments to create unstable black families and then claimed the instability was a private cultural phenomenon – is interesting. Is the counter-argument that cultural pluralism is wrong? That black culture is not real? (Or not really “black” culture?) Or that claiming “this is your culture” is really just a way of repressing someone? What does that say about identity politics and multi-culturalism today, if anything?

The Congressional Black Caucus might argue that “black culture is unique and should be preserved, free from white interference;” and it has – while appealing to morality – supported policies that harm black families, e.g., harsher penalties for crack-cocaine than powder cocaine. And if Southern moderates used “cultural stock to realign the cultural frame of civil rights away from a focus on racial oppression and towards an emphasis on black shortcomings, particularly crime rates, illegitimacy rates, and so on,” how different is that from the CBC’s call for a black jobs bill to deal with the recession or using black think tanks for the promulgation of low average test scores or stats about young black males in jail, etc.? If spotlighting black shortcomings stigmatizes blacks and retards black advancement, does it matter who swivels the spotlight?

I suppose my point may be that if constitutional rights are culturally contingent, then why aren’t they contingent on – or aren’t they too contingent on – the actions and behavior of blacks themselves?

Posted by: Jackson Pollack | Feb 17, 2010 10:23:32 PM

Professor Schmidt's points are well-taken. One goal of the book was to show that moderates manipulated areas of the law not traditionally associated with white resistance to civil rights, including marriage, adoption, welfare, and police jurisdiction, all with an eye to countering the civil rights movement. Not only is Schmidt right that black activists engaged in strategic constitutionalism, but as I try to show in Chapter I, activists like Roy Wilkins engaged white moderates like J.P. Coleman directly, long before better-known confrontations in the 1960s. Indeed, both Coleman and Wilkins carried the struggle over civil rights into cultural terrain, using their influence over the media (and in Coleman's case over state law), to build national support for their positions. This type of cultural combat, or what David Snow might call frame alignment, I now believe, warrants even closer scrutiny and might even push us to reconsider which Supreme Court cases, precisely, were most helpful to the civil rights movement. Though Brown will certainly continue to be a pivotal case, I argue in a recent law review piece that New York Times v. Sullivan actually deserves more attention, not simply as a first amendment case, but as a case that kept the northern press in the South, greatly enhancing the movement's chances at winning hearts and minds.

Were white extremists like George Wallace also engaged in strategic constitutionalism? Perhaps, though I think less so. While I agree with Schmidt that extremists like Wallace knew how their antics might play out nationally, I argue that they were less interested in modifying constitutional law than they were in promoting their own, short-term political interests. Wallace, once a moderate protegee of Big Jim Folsom, may not have cared whether Alabama was desegregated by federal troops or not, so long as he was elected Governor.

Personally, I agree with Schmidt that the book could have incorporated more theory. What I call strategic constitutionalism could, I believe, be tied to new institutionalist work on the relationship between law and social movements, with particular attention to the manner in which southern moderates drew from what Mayer Zald calls cultural stock to realign the cultural frame of civil rights away from a focus on racial oppression and towards an emphasis on black shortcomings, particularly crime rates, illegitimacy rates, and so on. Even today, the most interesting component of the moderate story to me is the tinkering that moderates engaged in to boost the appearance of black illegitimacy rates, part of a larger justification for why Brown could not be implemented.

Such moves, I believe, help reveal the cultural contingency of constitutional rights.

Posted by: Anders Walker | Feb 17, 2010 8:42:04 PM

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