Reexamining Brown v. Board: A Legal Dialogue: Part 6
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 6. Concerns Regarding The New Conventional Wisdom: Professor Mark Graber (see previous posts here, here, here, here, and here)
A new conventional wisdom on race and American political development is developing, at least in the small part of the academic world I inhabit. In this admittedly small but cozy universe, racial progress has hardly been steady or inevitable. Persons of color in the United State shave experienced far longer periods of racial retrenchment or retreat than periods of racial progress, and racial progress tends to occur only when proponents of a diverse society are able to link their egalitarian visions with such non-racial goals as defeating the Confederacy or winning the Cold War. Some of the crucial texts articulating this vision include, Klinkner and Smith, THE UNSTEADY MARCH, Dudziak, COLD WAR CIVIL RIGHTS, Keyssar, THE RIGHT TO VOTE, and, of course, the life works of Michael Klarman. While I am in my plug terrific works by terrific people mood, I should probably ask readers to keep their eyes out for forthcoming works by Julie Novkov and Pamela Brandwein that will elaborate different themes on the new understandings of race and American constitutional development.
I do think a number of tensions exist both in Professor Klarman’s UNFINISHED BUSINESS and in the new scholarship on race and American constitutional development. The first concerns the relationship between virtue and self-interest during periods of racial progress. UNFINISHED BUSINESS highlights this relationship and some tensions. Professor Klarman begins by asserting “Americans have rarely reformed racially oppressive practices simply because it was the right thing to do” (emphasis added). This strikes me as correct. As Klarman, the above authors, and many others (Derrick Bell obviously comes to mind) have demonstrated, proponents of racial equality in the United States succeed politically by linking equal rights to national goals shared by Americans otherwise indifferent to the status of persons in the United States. Lincoln spoke at least as passionately on the baneful influences of slavery on white persons and their ambitions as on slavery as violating the fundamental rights of persons of color.
Professor Klarman then makes such assertions as “the federal government urged the Supreme Court to condemn racial segregation in Brown principally in order to deprive the Soviet Union of a powerful propaganda weapon during the cold war” (emphasis added). I am not fully comfortable with the transition from noting that virtue was hardly the only motive inducing persons to champion racial equality to claims that crucial political actors were motivated primarily by self-interest. I do not doubt that many governing officials might have behaved differently had they not believed racial segregation was harming American foreign policy. Still, a great many conservative southerners during the 1940s and 1950s easily managed to be fervent anti-communists and even more fervent white supremacists. Given that Justice Department efforts to combat racial segregation predate the Cold War, a case can be made that for many officials the Cold War provided a political opportunity to advance more aggressively a previous commitment to racial equality. I am not at all sure of this. What I am more confident of is that the research at present has done a better job highlighting the Cold War as an extremely important influence on the official behavior responsible for Brown, than the place of that influence among other influences that help explain Brown and the eventual partial triumph of a version of liberal racial equality in the 1960s. Determining the weight of different motives and their interaction is likely to be a very difficult task, but the enterprise strikes me as worth undertaking.
My other concern with the new literature on race and American Constitutional Development is the balance between contingency and necessity. The new scholarship asserts both that racial progress tends to take place only when certain conditions are present (i.e., a war that requires large-scale mobilization) and that the progress that takes place at such times is the consequence of an intense political struggles that could easily have failed. Sometimes when I read these claims, I think that racial progress at these times was primarily a consequence of contingent human choices, that substitute a healthy Woodrow Wilson for Franklin Roosevelt in 1932 and the history of racial equality (as well as the history of the Supreme Court led by Chief Justice James Byrnes!) is quite different. Sometimes, the literature seems to suggest that, when the right conditions are present, racial progress almost inevitably occurs, even though a political struggle is necessary to achieve that progress. Consider the example of World War One. Americans mobilized for a war, the war was justified on democratic grounds, but racial conditions in the United States deteriorated in part because political leaders had little desire to take advantage of potentially favorable conditions for improving the status of persons of color. The different ways in which presidents and political movements have incorporated war into their racial programs suggest the need for more research on the extent to which human action matters on matters of race, on whether political leaders merely take advantage of favorable conditions or are capable of affirmatively creating the conditions that best enable progress toward a multiracial society.