Reexamining Brown v. Board: A Legal Dialogue: Part 5
ACSBlog is pleased to present a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law. The subject is the legacy of Brown v. Board of Education. We hope readers enjoy the conversation, and encourage your comments.
Part 5. The Conventional View of Racial Progress is Misleading: Professor Michael Klarman (see previous posts here, here, here, and here)
As Mark and I have so little to disagree about with regard to the Supreme Court, let me turn to a couple of other themes of Unfinished Business that are not centered on the Court.
First, I want to challenge what I believe to the conventional view that racial progress in American history as been ineluctable. The conventional narrative, I think, emphasizes steady progress: First, the North eliminated slavery as an offshoot of the Revolutionary War. Then slavery was extinguished in the South by the Civil War. Slavery was replaced in the South with a system of white supremacy known by the name of Jim Crow. That system was gradually weakened through the first half of the 20th century, before being ultimately abolished through some combination of the Supreme Court’s decision in Brown v. Board of Education (1954) and the 1960s civil rights movement.
I think that conventional narrative is misleading: There have been many periods in American history of racial regress. I’ll mention just two of these periods here, though there are others. First, the legal plight of blacks in the antebellum North worsened over time. Blacks lost the right to vote in northern states such as New Jersey and Connecticut early in the 19th century. Several states in the Northwest added constitutional provisions in the 1840s and 1850s barring free blacks from migrating to those states. One reason that northern blacks showed renewed interest in African colonization in the 1850s was because they perceived their legal position to be dire and getting worse.
A second illustration may be more familiar. In 1870, at the peak of Reconstruction, southern blacks turned out to vote in huge numbers; thousands of blacks held political office in the South; blacks served on juries in significant numbers; and several southern states enacted public accommodations laws forbidding race discrimination. Forty years later, southern blacks were universally disfranchised; blacks had been eliminated from southern juries and political offices; and the number of blacks being lynched every year averaged nearly 100. There is little doubt that southern blacks were worse off legally in 1910 than they had been in 1870.
A second theme of Unfinished Business is that blacks have had to struggle for every inch of racial progress that has been achieved, rather than whites simply “doing the right thing.” Again, I’ll offer two illustrations here, though examples could easily be multiplied. In 1941, President Franklin Roosevelt issued an executive order barring race discrimination in government defense contracting. Roosevelt issued that order not primarily because it was the right thing to do but because he wanted to head off a threatened march on Washington organized by the black labor leader A. Philip Randolph to protest segregation in the military. The administration was desperate to avoid scenes of 100,000 angry African Americans marching on the Capitol as the nation stood on the precipice of entering World War II. Roosevelt issued his executive order in response to that pressure.
My other illustration of this point is the Kennedy administration’s support for the civil rights bill that ultimately became the 1964 Civil Rights Act. The administration had been very reluctant during its first two years to support civil rights legislation. President Kennedy ultimately became a strong advocate for such measures, not because it was the right thing to do, but because of pressure emanating from the Birmingham street demonstrations in the spring of 1963. Americans were appalled by scenes of Bull Connor’s police dogs and fire hoses being directed at peaceful child demonstrators. Only after those demonstrations and spinoffs occurring in dozens of southern cities, did President Kennedy go on national television to announce that civil rights was an issue “as old as the scriptures and as clear as the Constitution.”
Strong vested interests benefited from the status quo of white supremacy. Change occurred because African Americans demanded it, and because altered material conditions created opportunities to achieve it. Some whites supported racial progress because it was “the right thing to do,” but never in numbers sufficient to accomplish such change without black pressure and supportive material conditions.