November 08, 2004

Being Jack Greenberg

by PG

As co-blogger Chris correctly predicted at 1 AM on election night, the presence of anti-marriage initiatives on the ballots of eleven states, plus the general backlash against advances in the equality movement, have been widely cited as a factor in President Bush's victory, particularly in his winning the popular vote. However, I think Chris has been too quick to cast this reaction as a "blame the gays" attitude.

Rather, I think that people are looking at Goodridge within a year of its resolution the same way some scholars have looked at Brown in the last decade: as a case decided correctly as a matter of constitutional law, but potentially unwise as a matter of political tactics. In this analogy, Chris is Jack Greenberg, and people like Waddling Thunder and Dianne Feinstein are Michael Klarman.

In February, I attended UVA Law's symposium on Brown v. Board of Education, and blogged about it. There was an interesting intellectual tension in the event between those like keynote speaker Jack Greenberg, the attorney for the Delaware students attempting to de-segregate their schools, and professors Michael Klarman and Kara M. Turner, who cited the ways in which Brown actually made the goals of integration and good education more difficult to reach.

In Greenberg's view, segregation was so manifestly unjust and unconstitutional that it had to be challenged directly through the courts. However, Klarman noted that the civil rights movement predated Brown, and eventually would have achieved the same result through legislation that the Legal Defense Fund did through judicial activism, and perhaps without the violence that Brown evoked from southern whites. Turner pointed out that the NAACP's fighting for integration rather than equality -- even if it was "separate-but-equal" -- led to the schools of Prince Edward County being closed for five years and a 'lost generation' of African American students who received not even an unequal education in that time.

By way of Andrew Sullivan, Chris has likened Brown to Goodridge for being a milestone of integration, but this is a comparison with less-than-positive connotations as well. Victories in the courts frequently come with democratic backlash: the hardening of anti-choice politics in the wake of Roe, the emergence of moral majority rhetoric after organized school prayer was declared unconstitutional.

Had the Democratic Party been seen as clearly the party of civil rights at the time of Brown, it would have suffered electorally for the decision. As it was, Eisenhower gingerly enforced Brown, and Dixiecrats had the Democrats split between tentative civil rights support and bitter racist opposition all the way to George Wallace's presidential run in 1972. After signing the Civil Rights Act of 1964, Johnson supposedly told an aide that the Democratic Party had lost the South for a generation. He apparently thought that doing the right thing was worth the political blow (or, knowing LBJ, made the calculation that enfranchised African Americans would make up for the loss of the white South).

I think that Jack Greenberg and Thurgood Marshall did the right thing in taking segregation to the courts, and that the Warren Court did the right thing in declaring segregation unconstitutional. At the same time, I'm not sure I'd say that the Court was wrong to have "dodged the bullet" of ruling anti-miscegenation statutes unconstitutional in the midst of the uproar against Brown.

Liberals pay a price for sudden changes that discomfit moderates and conservatives. Recognizing that price is not blaming the people who obviously benefit (as we all do in the long run) from the progress; it is being in touch with political reality.

November 8, 2004 09:08 PM | TrackBack

Or, you know, people went to the polls because of the war on terror and the economy. Just a thought.

Posted by: Matto Ichiban at November 8, 2004 10:25 PM

I'm sure that they did, but as one of the people at a Cleveland precinct said to me, "There's no initiatives about jobs on here." Bush was not polling well on the economy, and if you go just by the war in Iraq (as opposed to the war on terrorism) he hasn't done so hot either.

Posted by: PG at November 8, 2004 10:44 PM
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