Reexamining Brown v. Board: A Legal Dialogue: Part 9
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 9. The Political Dynamic that Led to the Civil War and the Civil Rights Revolution (see previous posts 1, 2, 3, 4, 5, 6, 7, 8)
As my last entry in this conversation with Mark Graber, I want to focus on one of the central themes in Unfinished Business: the political dynamic that led both to the Civil War and to the civil rights revolution. (Much of the credit for identifying and exploring this dynamic in the earlier period goes to William Freehling, who has authored pathbreaking work on the road to secession.)
Here’s how the dynamic operated in the earlier period: From the first years of the republic, the North and the South had somewhat different racial regimes. Slavery became more deeply entrenched in the South through the early 19th century, while the North, though no racial paradise, had put slavery on the road to extinction after the Revolutionary War. Over time, white southerners grew increasingly concerned that their racial regime was coming under northern threat. For example, northern abolitionists encouraged slaves to escape from the South, and northern free soilers sought to bar slavery from territory acquired through the war with Mexico in the late 1840s.
Southern slave holders responded to such threats by demanding greater protection for their peculiar institution from the national government. For example, in 1850, southerners demanded and received a more efficient federal fugitive slave law, and in 1854 they won the right to carry their slaves with them into the Kansas and Nebraska territories, from which slavery had previously been barred by the 1820 Missouri Compromise.
Northerners, in turn, grew increasingly resentful at the ever expanding demands of southern slave owners. In the 1850s, high profile captures and renditions of fugitive slaves in cities like Boston dramatically expanded the ranks of abolitionists, and the Republican Party, founded on a platform of opposing the expansion of slavery into federal territories, was formed in response to the 1854 Kansas/Nebraska Act. Northern politicians played on fears that northern voters had of a grasping southern slave power using the federal government to interfere with their liberties. Most northern whites cared far more about slavery’s impinging on their rights—for example, by authorizing federal marshals to conscript private citizens into posses to assist fugitive slave renditions—than they cared about the welfare of southern blacks.
As northerners grew more resistant to national government measures to protect slavery, southern slave holders ratcheted up their demands. For example, by 1860, southern Democrats were insisting that the federal government adopt a slave code for the territories. Such demands alienated northerners even further, leading them in 1860 to elect a Republican president who was not even on the ballot in most southern states. Lincoln’s election, in turn, drove the states of the Deep South to secede from the Union.
A very similar dynamic operated a century later to produce landmark civil rights legislation. Before World War II, Jim Crow reigned in the South. The North, while hardly a racial paradise, had no formalized system of white supremacy. World War II set in motion various forces that led white southerners to fear, with some justification, that the federal government would increasingly intervene against Jim Crow. Brown v. Board of Education (1954) made that threat concrete.
White southerners responded to Brown with massive resistance. Southern politics shifted dramatically to the right; racial regression occurred in areas such as black voting and desegregation of sporting events; and extremist politicians were elected to office. Those politicians used incendiary rhetoric that encouraged whites to use violence against black civil rights demonstrators. When that violence erupted in places like Birmingham and Selma, Alabama, and was transmitted by television to national audiences, northern whites responded by rallying behind landmark civil rights legislation to end the barbarities of Jim Crow. In the mid-1950s, most northern whites had supported Brown in the abstract but did not endorse aggressive enforcement measures. Northern white opinion became more solicitous of black civil rights in response to the violence used by southern law enforcement officers to suppress peaceful civil rights demonstrations.
In both the 1850 and the 1950s, the harder southern whites fought to preserve their peculiar racial institutions, the more they seemed to ensure their demise.