Legal Commentary

It?s an honor to be here to discuss Anders Walker?s The Ghosts of Jim Crow, especially with Willoughby and Chris, two of the most exciting scholars of the post-Brown Civil Rights era.

Jim Crow and its end is one the most vibrant areas in legal history; we?ve had some really terrific books in this area in recent years.  Just scanning books on the twentieth century race and law section of my bookcase brings Risa Goluboff?s Lost Promise of Jim Crow, Mary Dudziak?s Exporting American Dreams: Thurgood Marshall?s African Journey, and Paul Frymer?s Black and Blue to mind immediately.  Even in that distinguished company, Anders? book shines; it is one of the most original and most important books I?ve read in the legal history of twentieth-century civil rights.  Anders presents a bold thesis, which challenges how we think about our friends (or people I?ve thought of as my friends up until recently): the moderates in the post-Brown South.....

Often it?s the radicals who?re disliked by historians.  Take the 1940 movie Santa Fe Trail, which starred Errol Flynn as Jeb Stuart and ? get this ? Ronald Reagan as George Custer.  They were young army officers who helped put down the John Brown Rebellion in 1859.  (I think the stuff about Custer is fiction; Stuart actually was part of putting down the rebellion.)  Don?t believe me about President Reagan?  Check out youtube at 2:25. In that movie, John Brown looked like a deranged nut (which maybe he was ? but that?s somewhat aside from this story).  It was the moderate army officers who were the heroes of this movie; it was the abolitionist extremist who was the villain.  That fit with what historians thought at the time; they referred to the Civil War as the product of a blundering generation who allowed extremists on both sides to drag our country into a needless war.  The sober moderates were the people historians?and lots of other people?respected in the 1940s and 1950s.  And I suppose in part because our country is so moderate, we have a national affection for the moderates, who keep their eyes on long-term goals.  The sober, hard-working, well-meaning moderates usually aren?t ?sexy?; they don?t "resort to violence"; they?re "quite, inoffensive people."  And they?re often successful in business and thus are "the heart of their community."

Moderates have a good reputation in the Civil Rights movement as well.  Think of that most famous of moderates, the fictional lawyer Atticus Finch.  (Malcom Gladwell had a nice discussion of southern moderate whites last summer in the New Yorker.)

But there?s a turn taking place in interpretation.  The extremists have become, in some odd ways, the heroes.  In the phrasing of Glenn Eskew?s brilliantly titled book, But for Birmingham, Birmingham extremists were catalysts for change.  Bull Conner was so outrageous that he drove moderates into the pro-Civil Rights camp.  There?s a lot to that ? and the brilliance of one of the Civil Rights strategies was the realization that extremists were their own worst enemies.  Violence is so, so frequently counterproductive.  It certainly was in Birmingham.  Thus, extremists are ? inadvertently, obviously ? some of the most important catalysts for change.  This makes me think that somewhere in Birmingham, amidst the statues they've put up of late of heroes of the Civil Rights era, there ought to be a statute to old Bull, because he sure did a lot to promote the cause.  

For a long time, the daring radicals opposite old Bull, the Freedom riders and the sit-in stagers, and the marchers from Selma to Montgomery, have been our nation's heroes, of course.  One might add, too, the Tulsa, Oklahoma veterans of the "Great War," who went off in 1921 to fight to protect their community from the white mob with the strains of WEB DuBois' editorial "Returning Soldiers" echoing their head: "We return.  We return from fighting.  We return fighting."  The extreme conservatives and the radical reformers are staging a comeback among historians.

Now, put that picture together with Anders? interpretation of moderates in The Ghosts of Jim Crow.  Anders revisits three ?moderates?: Governors J.P. Coleman of Mississippi, Luther Hodges of North Carolina, and LeRoy Collins of Florida.  He shows that a lot of what they did had the effect of limiting opportunities for equality or for protest.  (And sometimes those effects were directly intended).  This is a really rich volume.  Let me steal a quick summary of several Anders? key points from his introduction (5). First, that Brown was an important step in the emergence of civil rights.  Anders is certainly correct here; I prefer his interpretation to those who think of Brown as a ?hollow hope,? or those who see Brown?s key function as creating a white backlash.  Second, the governors illustrate how state leaders react to Supreme Court decisions and develop law.  (This is an element of what we?re increasingly referring to as ?popular constitutionalism.? Anders really pushes back the frontier of knowledge here ? I think this is a model for how to link legal thought and considerations of political expediency with the action of executive branch officials, a topic that goes beyond the "popular constitutionalism" literature I've seen.) Third ? and most directly related to my comments below ? even as the governors limited violence against African Americans, they ?discretely shifted the burden of constitutional change onto black shoulders.?  To take one example, Florida Governor Collins shut down bus service in Tallahassee when African Americans boycotted the segregated buses.  One can imagine Collins thinking: ?You don?t like segregation?  Fine; there won?t be any buses at all.  How do you like that??  So much for moderation.

Anders quite convincingly depicts the governors as people who dragged their feet and worse.  That poses, for me, two lines of questions.  First, were substantially all white moderate politicians trying to drag their feet on change ... or worse?  Do we no longer think that moderates might actually have believed that their methods were better-suited than confrontation with conservatives?  Isn?t it possible, indeed likely, that many moderates wanted change, they just wanted it to proceed in a slower and more orderly fashion than many others?  Ok.  Maybe moderates were just using the moderation as a cover for doing nothing.  You may recall that Martin Luther King thought that the counsel to ?"wait" has almost always meant ?never.?? Similarly, King spoke of the ?tranquilizing drug of gradualism? at the March on Washington.  Anders revives that insight and adds extraordinary detail to King?s interpretation.

Second line of questions, then: Is there no reasonable possibility that the moderates? methods ? even if they were often based on the desire to do nothing ? really were effective in bringing about some positive change?  Was there nothing to Booker T. Washington?s counsel that African Americans seek gradual accommodation?  I don?t carry a lot of brief for Washington; I?m on WEB DuBois? side on this.  But I think that as a strategy, Washington may have been onto something ? maybe not much, but not nothing.

To recap, then, my questions about Anders? book: are Civil Rights era southern moderate politicians generally as ?bad? as those in this book?  And if they are, is moderation itself conservative and anti-reform.  (I suppose an important part of the answers to these questions turns on how we define a moderate.  Moderates are, after all, not liberals or radicals ? they?re people who want to promote some more gradual goals.  But then again, how moderate is someone who proposes making it a misdemeanor for a single women to have more than one child? (81)  Hey, at least that was an improvement off the idea we?d sterilize unwed mothers.  Maybe what we need is to reframe our definition of people as moderate or conservative?  Anders raises a lot of questions, even as he brings a lot of precision and skepticism to the history of the south's response to Brown.  He's set a framework that we're going to be talking about for a very long time; and I suspect his insights will be exported from the post-Brown south to lots of other places and other times, like the antebellum south....

Now, two final questions.  First, how might we fit fictional southern moderate lawyer Atticus Finch into this picture?  And now that moderates are coming in for a tough time of it, how are the radicals going to come out?