Reactionary Rhetoric and Liberal Legal Academia
Driver, Justin, The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. SKETCHING REACTIONARY RHETORIC II. APPLYING REACTIONARY RHETORIC III. EXPLORING REACTIONARY RHETORIC IN LIBERAL LEGAL ACADEMIA A. Illustrations B. Explanations C. Implications CONCLUSION
Today, as the Civil Rights Act of 1964 approaches its fiftieth anniversary, it occupies an exalted position in the nation's legal consciousness. (1) Perhaps none of the Act's provisions is held in higher esteem than Title II, the public accommodations measure that prohibits owners of hotels, motels, and restaurants from excluding black patrons. (2) Senator Rand Paul of Kentucky received an object lesson in Title II's sacrosanct status four years ago when he expressed skepticism about the wisdom of requiring businesses to serve customers without regard to race. (3) Although Paul emphasized that he loathed racism, he nevertheless speculated that protecting individual freedom might require protecting even the freedom of business owners who wish to practice racial discrimination. (4) Predictably, the comments generated a firestorm. (5) Among his many critics from across the political spectrum, White House Press Secretary Robert Gibbs flatly asserted that such musings had become unfit for polite society: "I think the issues that many fought for in the '50s and the '60s were settled a long time ago in landmark [civil rights] legislation. And a discussion about whether or not you support those [measures] ... shouldn't have a place in our political dialogue in 2010." (6) Paul himself would soon appear to share Gibbs's assessment, as he sought to end the conflict by issuing a statement indicating he would not support any effort to repeal the Civil Rights Act of 1964. (7) To question Title II's legitimacy in the modern era, it seems unmistakably clear, is to adopt a position well outside the mainstream. Opposing Title II these days is a little like opposing motherhood, apple pie, or fireworks on the Fourth of July.
Yet it was not always so. When the nation was actively contemplating whether to include a public accommodations provision in the Civil Rights Act of 1964, many people who were squarely part of the nation's mainstream culture opposed the measure. Now that Title II has become almost universally celebrated, it may be tempting to believe that the only contemporaneous opposition arrived in the form of relatively unvarnished appeals to racial bigotry and open suggestions of black inferiority. To be clear, such statements do appear intermittently in the public record from the 1960s. Among elected officials, for instance, Congressman John Bell Williams of Mississippi condemned Title II from the floor of the House of Representatives, and in so doing descended into patently objectionable racial oratory. Rather than pushing for equal access to public accommodations, Williams contended, civil rights organizations should instead "devote their talents to the upgrading of morality among the members of the Negro race, [which] could make a significant contribution to the good of all mankind." (8) Williams asserted that if the organizations successfully rechanneled their energy into improving black morality then "they would discover a perceptible change in the attitude of white people, and their economic condition would be improved." (9) Williams's speech also linked the struggle for racial equality in public accommodations to the black community's supposed propensity for illegitimacy and criminality, two issues that segregationists frequently invoked dating back to at least the mid-1950s. (10) Yet, Williams's charged racial language is conspicuous within public debates about the Civil Rights Act of 1964 precisely because Title II's opponents typically eschewed such language.
If mainstream opponents of Title II did not--for whatever reasons--generally avail themselves of racially derogatory modes of argumentation, the question becomes: what sorts of arguments did they typically advance in opposing racial equality in public accommodations? …