Legal Commentary

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.