The brief excerpt from deTocqueville's epic work "Democracy in America" is assigned to introduce the unique character of slavery in America, and its legacy of cultural racism -- notwithstanding the constitutional and statutory guarantees of racial equality embodied in the Civil War Amendments and the Reconstruction Era Civil Rights Acts. The passage will be recalled throughout our discussions of the early constitutional cases, the "Jim Crow" era, the character of southern resistance to Brown v. Board, and the direct action campaign for civil rights.
As Gunnar Myrdal observes, the Supreme Court's decision in Plessy v. Ferguson gave rise to the "Jim Crow era," described in Chapter 1 of Professor Klarman's book. How do Professor Klarman's explanation of constitutional history (including the extralegal context in which the Supreme Court decided constitutional cases involving race in the Plessy era), and his explanation of the reality of the "separate but equal" doctrine crafted in Plessy reinforce Myrdal's view of the purpose for the legal fiction of "Jim Crow?" Do the observations of Dr. W.E.B. DuBois remain important to the understanding of the history of civil rights? Can it be said that he both defined the necessary character of a direct action campaign for civil rights and the necessary principles of civil rights legislation?
Carefully consider the background forces which were relevant to the decision to challenge racial segregation in public schools, and the deliberations which led to the Court's unanimous decision that racially segregated public schools were "inherently unequal" under the Fourteenth Amendment. What influenced the NAACP to challenge segregation at its core, rather than to continue the legal argument for equalization per se? Was the leadership of the new Chief Justice important throughout the process which led to the Court's decision? Does the Court's opinion reflect the influence of the background forces which provided the context for its consideration of the issue presented by the consolidated cases? Beginning with Brown itself and throughout your further readings, contemplate the immorality of segregation, and the influence of moral argument on legal inquiry. Why was it important that the Court's decision be unanimous?
Throughout your further readings, examine the following aspects of the judicial efforts to implement Brown v. Board in the South, the character and scope of southern resistance to Brown, and the direct action campaign for civil rights which led to the passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act:
- Consider the importance of Professor Bass' biographical introductions of the southern federal judges whose decisions and opinions make up the body of "southern jurisprudence" which implemented Brown's mandate for equality, and their individual and collective commitment to the rule of law. Evaluate the term "judicial activism" in the light of the constitutional basis for the concept of equality identified with Brown, i.e., the affirmative duty to dismantle dual systems of education and state sanctioned legal authority for racially separate public accommodations.
- Examine the basis for and the impact of Brown II's approval of the principle of gradualism in its famous "all deliberate speed" language and the basis for the legal arguments of southern states seeking to avoid Brown's mandate. Did Brown II invite recalcitrance? How did Brown II influence the role of the Fifth Circuit Court of Appeals in determining the constitutionality of southern legal arguments in opposition to federal law and the guarantees of National citizenship? Did it become the Fifth Circuit's responsibility to reveal that Brown II's conciliatory perspective was a mistake? Did Brown II promote tokenism, as a form of gradualism?
- Professor Klarman describes the Montgomery Bus Boycott as a seminal demonstration of black agency, resolve, courage, resourcefulness, and leadership. Noting the significance of the Montgomery Bus Boycott, trace the emergence and efforts of the direct action campaign for civil rights, and note the common and competing philosophies identified with the campaign's principal groups -- The Congress of Racial Equality (CORE), The Southern Christian Leadership Conference (SCLC), and The Student Nonviolent Coordinating Committee (SNCC); consider as well the relationship between and among the leadership of the direct action campaign, the NAACP Legal Defense Fund, Inc., and the federal executive (most importantly the Kennedy White House and Justice Department). How did these relationships, and leadership conflicts, influence the nature and scope of judicial and direct efforts to bring about social change?
- How important was the Movement's commitment to Gandhian nonviolence? How did this Movement philosophy influence popular reaction to the violence which characterized the southern resistance to integration? How did the personal courage and determination of individuals affect the "politics" of the Movement and the role of the federal courts?
- How would you characterize and illustrate the role of John Patterson, Ross Barnett, other southern governors and legislators and federal legislators from the southern states, in delaying the implementation of the Brown decision? To what extent were their personal views about race influenced by a philosophy of "white supremacy" which affected political elections throughout the south? How successful was federal executive leadership in dealing with the politics of southern resistance, including in periods of crisis?
- As you study the assigned cases, evaluate the importance of the "southern jurisprudence" identified with the Fifth Circuit in sustaining and advancing the principle of equality announced in Brown, and the affirmative duty to remedy the present effects of racial discrimination in education and public accommodations. Would the rule of law have prevailed absent the Fifth Circuit jurisprudence which is the subject of the assigned readings?
- Why was it necessary to secure the passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act? How, if at all, did the events of the civil rights movement redefine the two major political parties and the office of the President?
- Professor Klarman's "backlash" theory has generated considerable discussion. Although he does not suggest this view of Brown as definitive, he does raise the question whether the legal obstructionism and violent popular defiance of integration was the result of the Court's focus on school desegregation, rather than some other aspect of racial segregation, such as voting rights or the issue of segregation of public accommodations. Contrast his writing about the direct and indirect effects of Brown, including the violence that characterized southern resistance, with Professor Bass' accounts of the events following Brown. What seems important in comparing these two scholarly accounts of the events which define the period from the Court's decision in Brown to the passage of the Civil Rights Act and Voting Rights Act?
- How have the assigned readings reinforced or reshaped your perspective of constitutional history, and your view of Brown's legacy? Is it possible to say whether Brown itself, or the direct action campaign most influenced the attitude of Americans about race? In the end, would you conclude that the successes which define Brown's legacy are the result of both a judicial commitment to the principles of the First Amendment and the Civil War Amendments, and the resolve of the direct action campaign for civil rights, which, Professor Klarman suggests, fostered black agency better than did litigation? What would you emphasize in explaining your view of the success of the civil rights movement?