The spirit of segregation is still alive in America
How a 60-year-old “manifesto” is still used to fight against civil rights
By Asher Kohn
In the summer of 1955, Sen. James Eastland gave a speech to his constituents in Senatobia, Mississippi:
On May 17, 1954, the Constitution of the United States was destroyed because the Supreme Court disregarded the law and decided that integration was right. . . . You are not required to obey any court which passes out such a ruling. In fact, you are obligated to defy it.
It sounds an awful lot like Republican presidential candidate Ted Cruz’s 2015 assertion that state officials “should feel no obligation to agree that the [Supreme] court ruling [concerning same-sex marriage] is right or is consistent with the Constitution”.
But Eastland wasn’t talking about sexuality or gun rights or any familiar hot-button issue. The Mississippi plantation owner was talking about the Supreme Court’s enforcement of integrated schools in Brown v. Board of Education. Eastland was exhorting his voters to defy the United States.
Several months after his speech, Eastland’s beliefs were formalized in a document that would become known as the Southern Manifesto. It bore 96 signatures from senators and congressmen across the south.
They were furious at what they believed was a time “when men substitute naked power for established law.” But we still live in the segregationists’ giant shadow. The manifesto offers a framework to reject democratic lawmaking. And it is often invoked, in spirit if not in name.
It outlines a political strategy designed to wriggle out of Supreme Court decisions, a strategy employed to keep 33 million Americans off Obamacare, to try and stop homosexual couples from registering their marriages, and to maintain a form of de facto school segregation. It has now been 60 years since the Southern Manifesto was presented to Senate, and the methods of resistance it outlined are used to political benefit within the United States.
“The document primarily advanced a series of measured legal arguments,” wrote Justin Driver, a professor at the University of Texas School of Law. It works by “contending that the court incorrectly decided Brown as a matter of constitutional law.” This meant that politicians tried to get voters to think the public understood the law better than the highest court in the land.
The manifesto mainly worked by looking at a strict, originalist interpretation of the Constitution. Neither that document nor its Civil War-era amendments mentioned education, after all. Therefore, the manifesto argued, “there was no intent that [the Constitution] should affect the systems of education maintained by the states.”
This 1950s emphasis on the Constitution’s “original” intent turned into the Federalist Society. That organization believes “it is the province and duty of the judiciary to say what the law is, not what it should be.” Society members write blog posts decrying desegregation decrees, even today.
But if it wasn’t enough to make education a states’ rights issue, the manifesto talked about defending the Southern family as well. It contended that law — not a particular law, but American law — was founded on “elemental humanity and common sense, for parents should not be deprived by Government of the right to direct the lives and education of their own children.”
Even today, there’s a push for what supporters call the Parental Rights Amendment, the brainchild of former South Carolina Sen. Jim DeMint. “We must protect the liberty of parents to direct the upbringing and education of their children,” said DeMint at the amendment’s introduction. Its backers include both anti-abortion groups like Concerned Women for America and a contingent of anti-vaccination parents.
Back in 1956, all of these disparate groups didn’t exist. The logic of the movement needed a bit more fleshing out. The segregationists needed someone to preserve their beloved status quo. They needed a good lawyer.
David Mays was perhaps the best lawyer the South had to offer at the time. Born into elite society of Richmond, Virginia, he was well-connected both in the nation’s capital and throughout the South. He was also a meticulous diarist, which is how we know how he talked out of both sides of his mouth. Meeting his friends at a private Richmond club the day Brown v. Board was decided, Mays wrote of “the general view being that the South would find effective ways of cushioning its impact.” He soon discovered that he would be tasked with providing the cushion.
Five months before the Southern Manifesto was published, Mays had met with James Kilpatrick, the 35-year-old editor of the Richmond News Leader. Kilpatrick had a taste for argument but a weak grasp of the law. Like a Glenn Beck in black-rim glasses, Kilpatrick excavated a 1798 argument by James Madison that states had the right to “interpose” their laws between the federal government and American citizens. That state governments, essentially, had more power than the Feds and especially the Supreme Court. Never mind that Madison’s theory had been rejected every time it came to court (especially after Connecticut used it to refuse to fight in the War of 1812), Kilpatrick’s broadsides were popular throughout the South.
Mays had his terrier, but he knew his terrier didn’t have a legal case. “There is no doubt that there has been a tremendously favorable reaction to his editorials,” Mays wrote of Kilpatrick after their meeting. “My sole concern … is whether people would grasp at it as a solution.”
He took Kilpatrick’s belief in interposition and reforged it. As Mays put it, “the art of it is to recognize the binding force of the Supreme Court decision while destroying its effect, at least at present, in the counties having heavy Negro populations.”
Mays turned what was a politically conservative position into a socially preservative one. “To win a large majority,” Mays wrote to himself, “our argument must be that we are not trying to destroy our public schools but to save them from the potential destruction … that the Supreme Court of the United States has brought about.”
In Virginia, this meant “massive resistance” as a segregationist state tried to save their racist system. Richmond passed a law before the 1958 school year which closed any school that attempted to integrate. Nine public schools were shuttered. At the Richmond News Leader, Kilpatrick framed the crisis as the Supreme Court threatening to take hundreds of white children out of school. African American children were elided from the argument.
Massive resistance almost worked. In 1959, a nationwide Gallup poll asked whether respondents supported a Constitutional amendment that would allow states to decide for themselves whether or not to integrate. A slim majority — 51 percent — believed integration should be a state issue.
Fortunately, it takes 75% of states to ratify such an amendment. And the federal government was ruthless as it dismantled segregation. In a scene reminiscent of the myriad attempts to shrink Obamacare today, the Supreme Court rejected the increasingly baroque lawsuits that Mays and his coterie pursued. In a show of federal power, President Dwight Eisenhower nationalized the Arkansas National Guard. He ordered them to stand down and eventually protect the black students who integrated the state’s public schools.
But are schools really integrated? Protests over busing and then white flight kept Martin Luther King’s dream of black and white children from joining hands in American schoolyards. Today, charter schools — under the guise of “school choice” — keep schools mostly segregated in the South and across the country. The rhetoric may have shifted, but the results remain the same. American kids of different races generally go to different schools.
The Civil Rights Act of 1964 didn’t solve everything, partly because the fears of segregationists weren’t extinguished. Mays, the architect of massive resistance, is a great example. In his journal, he mentions witnessing a lynching in 1917. The young Mays was “howling with excitement” as Tennesseans chained up 51-year-old Ell Parsons and doused him with gasoline.
Mays went from lynch mob to president of the Virginia Bar Association, where he groomed a new generation of lawyers. Whatever he said in public, Mays was the man who would watch Jackie Robinson’s last World Series and note in his journal that he was “happy to see the Yankees put the Brooklyn colored boys away.”
Even if the Civil Rights Act kept such thoughts behind bound journals or locked doors, it didn’t keep them out of politics.
The argument could be made that by the time Barack Obama was elected President in 2008, the United States had successfully dragged itself into the 20th century. And even in 1956, the segregationists knew that the die was cast. Mays ruefully noted that “looking back upon today, historians will pronounce extreme integrationists to be great statesman and moderate people as pygmies.”
He was right, and no serious person can argue against integration anymore. But they can — and do — argue against public schooling, health insurance, gay marriage or any other issue that gets at the heart of what a more perfect union might be. All under the guise of the Constitution. And all because of a fear of what integration once looked like.
