Balkinization: Have You No Shame?

Comments:

Kilpatrick just re-defined chutzpah. He didn't just advocate "interposition". Because of his advocacy, the VA General Assembly actually passed a nullification resolution! The campaign in VA was so hateful that Prince Edward County closed all of its schools for 5 years, giving publicly funded vouchers to white students to attend private school but refusing to allow blacks to attend school at all. Just recently (2004), with those deprived blacks now in their late 50s, the VA General Assembly offered them financial assistance to attend school.

You can find Kilpatrick's sordid history in Lassiter & Lewis (Eds.), The Moderates Dilemma: Massive Resistance To School Desegregation in Virginia. See the article by Thorndike, "The Sometimes Sordid Level of Race and Segregation: James J. Kilpatrick and the Virginia Campaign Against Brown".

On a personal note, I personally remember reading Kilpatrick's columns not long after these events. He was a disgraceful, despicable racist for whom the Eigth Level of Dante's Hell would be generous.

# posted by

Mark Field : 10:13 PM

From the Kiltpatrick op-ed:

"It is said that no one knows sin better than a repentant sinner. White Southerners are still doing their penance. We are not alone. Racial prejudice is easy to come by and hard to cast off."

It sure is, isn't it?

More seriously, Stuart Taylor had a superb analysis of the Parents Involved cases (linked to on SCOTUS blog Round-Up) that rightly calls CJR on the carpet for elision and less than honest use of previous precedent to get to his result -- does that remind anyone of another "CJR"???

He also lightly criticizes SB for his chicken little dissent, probably rightly. It would have been more helpful to focus on the empirical facts rather than be a "moral vigilante" who holds up the abstraction of "diversity" over the facts on the ground. In any event, Breyer is still more right than wrong.

# posted by

Calvin TerBeek : 10:47 PM

Here you go:

http://www.vcdh.virginia.edu/civilrightstv/
wsls/segments/WSLS1_31.html

"James J. Kilpatrick, conservative editor of the Richmond News Leader and fervent segregationist, was interviewed before a debate with Roy Wilkins at the Virginia Tech YMCA entitled Conflict in the Great Society. Kilpatrick discussed the illegitimacy and flaws of the 1965 Voting Rights Act which he deemed "completely unconstitutional." Specifically, Kilpatrick believed the Act had "trespassed upon the power of the state to fix qualifications for the franchise."

# posted by

Unknown : 10:54 PM

Just to give you some sense of Kilpatrick's lovely style, here's Taylor Branch quoting Kilpatrick from a debate with MLK regarding the North Carolina sit ins:

"We believe it is an afirmatively good thing to preserve the predominantly racial characteristics that have contributed to Western civilization over the past two thousand years, and we do not believe that the way to preserve them lies in fostering any intimate race mixing by which these principles and characteristics inevitably must be destroyed." Parting The Waters, pp. 380-1.

Ya gotta love a guy who manages to leap from the integration of lunch counters to miscegenation in one sentence.

# posted by

Mark Field : 11:41 PM

Thanks for shedding light on this. I remember him on Point-Counterpoint with Shauna Alexander (a great SNL spoof would have the guy playing him start his comments to the woman who played Shauna - "Jane you ignorant slut!"). Never in those years do I remember any mainstream newspaper or television show mention any of this. Did I miss something? If not, why did folks feel they had to remain silent about this? If anyone wants to complain to him directly just send him an e-mail at kilpatjj@aol.com which is the e-mail over at the article.
Best,
Ben

# posted by

Benjamin Davis : 9:39 AM

Mark --

I was totally with you until the last sentence of your update. As I read your initial post, you argued that it is hard to take seriously what Kilpatrick says now because of his failure to acknowledge his role in perpetuating segregation. But in your update you seem to suggest that the opinions of anyone who ever prominently took such positions in the past should be forever dismissed.

I am not suggesting that Kilpatrick has properly acknowledged and atoned for his past actions and views. I also agree that the "personal history" he recounts in that op-ed is disingenuous in its omissions. I am curious, however, whether you really mean that that if Kilpatrick (or someone else who actively fought integration and other civil rights measures) more forthrightly acknowledged and rejected that past, that he should still never be taken seriously. Is there no possibility for atonement and redemption in this area? I would think such are possible, but unlikely in Kilpatrick's case given his failure to fully acknowledge his role in perpetuating racial injustices.

Jonathan H. Adler

# posted by

Jonathan : 9:47 AM

In response to Jonathan Adler: My final sentence was badly put. It should have been along the lines of "his actions in the 1950s coupled with his failure to acknowledge that role in asserting that he grew up, etc." And, though what he "grew up" to realize involved matters different form those associated with the legislation of the 1960s (as other commenters note), I think it fair to say that something more than mere assertion is required to demonstrate "redemption," much less "atonement."

# posted by

Mark Tushnet : 10:17 AM

OK, if past or current viewpoints in favor of government preferences for one race and discrimination against another race forever bar one from ever again advancing an opinion on the application of Equal Protection to educational opportunities, then can the vast majority of the professors or others posting here, who have been arguing in favor of government racial preferences and discrimination in the allocation of educational opportunities, speak on the issue?

Perhaps we can dispense with the ad hominem attacks, even if well deserved, and address the merits or lack thereof of Kilpatrick's argument.

BTW, the posted link to that argument does not work on my computer. Is anyone else having this problem?

# posted by

Bart DePalma : 10:47 AM

Bart: Cut and paste or click here.

Johnathan: Certainly we can try to divorce a person's words from their personal history and read them only in the context of a current debate, at least as a thought exercise. (Which is to say: I don't believe that one can divorce words from the conditions of their production and still understand the author's intent or the word's "true" meaning.)

However, when the editorial itself uses that personal history as a lens through which we can understand what Kilpatrick is saying, we must consider that history in evaluating the merits of the editorial.

When a person declares that ameliorative policies like affirmative action and school integration are inherently racist, and makes a claim to authority because he was once a big-time racist, one has to stop for a moment and think: do I trust this guy to tell me what is racist and what is not?

It's not that he shouldn't be taken seriously--he should, if only because he has his own column and people out there read him religiously. But what do we make of the accusation that he makes, as others who support similar ideas do, that supporters of ameliorative intervention are hypocrites, because the programs they support use racist categories to assure equal opportunity?

This is where the history of the author can be enlightening. In 1962, Kilpatrick wrote in the introduction to The Southern Case for School Segregation:

We find ourselves defending certain actions and attitudes that to much of the country, and to much of the world, appear indefensible; some times we are unsure just what it is we are defending, or why we are defending it. We would like to think more upon these questions, but in this conflict there seldom seems to be time for thought or for understanding on either side. When one side is crying "bigot!" and the other is yelling "hypocrite!," an invitation to sit down and reason together is not likely to draw the most cordial response.

45 years later, and he's using the same lines:

It is said that no one knows sin better than a repentant sinner. White Southerners are still doing their penance. We are not alone. Racial prejudice is easy to come by and hard to cast off. Breyer and his misguided cohort mistakenly believe that our nation's residual racism will be cured by a little more racism.

In short, Breyer is just like the "Southern Liberal" of 1962: a hypocrite who disagrees in principle, but agrees in practice.

Kilpatrick and his ilk fail to recognize the difference between prejudice and amelioration as distinct methods; taking a lesson from the "political correctness" movement, they prefer to find the fault in the racial categories themselves, and not in the intent of the people using them. Moreover, by moving attention to the categories, they deny the reality of measurable and demonstrable disparity between different populations, and by moving to outlaw ameliorative methods that specifically address these disparities, such people become complicit in the maintenance of those disparities.

Penance, indeed.

# posted by

PMS_CC : 12:27 PM

PMS:

Thanks for the full link.

For those interested, here is all Kilpatrick was arguing:

Breyer's impassioned and almost interminable dissent was the day's most interesting deliverance. He loved it so much he read almost all of it aloud. Ordinarily Breyer ranks one-two-three with Ginsburg and Thomas as the gummiest writers on the court, but on this Thursday morning he was clear, dedicated, and dead wrong.

Breyer completely missed the point of what the chief justice and his four colleagues were seeking. They were trying their inarticulate best to serve a great American ideal. They were urging color-blind equality before the law. Fifty years ago the Brown case made a mighty stride in that direction. Breyer and his well-intentioned mates were going tippy-tippy-toe in exactly the opposite way.

It is said that no one knows sin better than a repentant sinner. White Southerners are still doing their penance. We are not alone. Racial prejudice is easy to come by and hard to cast off. Breyer and his misguided cohort mistakenly believe that our nation's residual racism will be cured by a little more racism. Such reasoning is drawn straight from the pages of "Alice in Wonderland."

In sum, Kipatrick makes three points:

1) The Brown Court properly held that the 14th Amendment was color blind.

2) The Parents Involved plurality properly held that the 14th Amendment is color blind.

3) The Parents Involved dissent improperly opined that the 14th Amendment does not bar government racial discrimination so long as the current racial discrimination is meant to "remedy" past racial discrimination.

If you are a textualist as I am, this argument is indisputable. Equal means equal and the 14th Amendment was meant to eliminate racial discrimination, even though the law was not followed for decades.

If you are a living constitutionalist who believes the Constitution means whatever popular modern opinion thinks it should mean, I think you will find a super majority of the American people (as demonstrated by the success of initiatives barring government racial discrimination) would agree with the Parents Involved plurality.

Therefore, it is exceedingly difficult to dispute the substance of Kilpatrick's argument, which is probably why the substance of his argument was ignored here in favor of an ad hominem attack.

# posted by

Bart DePalma : 1:34 PM

"It is said that no one knows sin better than a repentant sinner. White Southerners are still doing their penance. We are not alone. Racial prejudice is easy to come by and hard to cast off."

So is indifference to modern concerns of race, in the guise of a conservative philosophy of "color-blindness."

Perhaps our civil rights forefathers should not have had the temerity to advocate for equal treatment by the law as a remedy for racism. It's only given some on the right a handy propoganda tool for arguing that things should stay (or go back to) the way they have always been.

# posted by

Alexander Wolfe : 2:11 PM

Would one of the supporters of this idea that "equal is equal" (or "stop discrimination by stopping discrimination", if you prefer) care to enlighten me as to how an institution can be held accountable for that equality or lack of discrimination?

To ground the argument a bit more, if the 14th Amendment was meant to "eliminate racial discrimination" and ameliorative programs that use racial categories are discriminatory, shouldn't we dispense with the U.S. Equal Employment Opportunity Commission entirely? Is there any duty to enforce these laws, when enforcement requires monitoring and measurement that uses the same categories?

# posted by

PMS_CC : 2:16 PM

Xanthippas: Perhaps our civil rights forefathers should not have had the temerity to advocate for equal treatment by the law as a remedy for racism. It's only given some on the right a handy propoganda tool for arguing that things should stay (or go back to) the way they have always been.

Assuming you mean that ironically, still, there's a point, and it's akin to the point Professor Tamanaha makes in his book, "Law as a Means to an End." It's not enough that we decline to use law in a strictly partisan and utilitarian manner. We must also think about how someone with the will to such use might use our arguments against us. No point putting the other guy in check if he can block the attack and deliver mate all in the same move.

# posted by

Robert Link : 2:59 PM

Bart: If you are a living constitutionalist who believes the Constitution means whatever popular modern opinion thinks it should mean...

Okay, all of you who fit that category, raise your hand.

::BD furtively lifts the scarecrow's hay-stuffed arm way up high::

# posted by

Robert Link : 3:03 PM

PMS_Chicago: ...shouldn't we dispense with the U.S. Equal Employment Opportunity Commission entirely?

Uh, dude, I think you're counting on a little too much capacity for nuance here on the part of our trolls. Recall, Bart was the guy who couldn't tell when a partisan was attempting to mock one of our hosts using said host's same method of voicing the opposition's views. I'm sure our right-wing friends would like nothing more than to see the EEOC laid to rest.

Now, whether any/either of them will come out and say so is a matter of strategy, much like the current good-cop/bad-cop strategy on the bench itself. It's easy to see Roberts' ruling on "Morse", for example, as a restrained effort to work at narrowing precedent when you've got Thomas throwing nonsensical rhetorical bombs like, "They ain't never had no such rights in the first place." Whether our right-wing guests prefer to play good-cop, "make the EEOC 'play fair'", or bad-cop, "put a bullet in its head", is likely to be a matter of who they're getting their talking points from.

Peace.

# posted by

Robert Link : 3:10 PM

Xanthippas said...

"It is said that no one knows sin better than a repentant sinner.

This truism tends to be correct.

The most fervent anti smoking people are ex smokers.

The most fervent anti communists were former communists. Etc, etc.

Unlike bystanders for whom issues may abstracts, most repentant sinners have up close and personal knowledge of the subject and why it is an evil.

# posted by

Bart DePalma : 3:41 PM

PMS_Chicago said...

Would one of the supporters of this idea that "equal is equal" (or "stop discrimination by stopping discrimination", if you prefer) care to enlighten me as to how an institution can be held accountable for that equality or lack of discrimination?

Ummm... If the government entity is practicing racial discrimination and will not stop when confronted with the fact, you go to court to enjoin the discrimination as a violation of law.

To ground the argument a bit more, if the 14th Amendment was meant to "eliminate racial discrimination" and ameliorative programs that use racial categories are discriminatory, shouldn't we dispense with the U.S. Equal Employment Opportunity Commission entirely?

While there are many very good policy reasons to eliminate the EEOC as it is presently constituted, I do not believe that the 14th Amendment is one of them. The EEOC's primary mission is to address private discrimination. The 14th Amendment addresses government, not private, discrimination.

# posted by

Bart DePalma : 3:49 PM

Ok, so Kirkpatrick is way way off the mark on this one, but, I don't think that he's THAT zany for this line, "It is said that no one knows sin better than a repentant sinner. White Southerners are still doing their penance. We are not alone. Racial prejudice is easy to come by and hard to cast off."

Racism is played out in the popular conscience as a Southern phenomenon, replete with slack-jawed Bubbas, wads of tobacco, pickups on cinder blocks, as many coon dogs as kids, etc. However, it IS interesting to note that 9 of the 10 most segregated cities in America ARE in the north/midwest. The lone exception being Miami (which can hardly be called Southern by any stretch of the imagination, irrespective of compass point). I am not at all condoning the all-too real past of my home, but there are valid points about the complicity/sins of the rest of us that MUST be made to have any meaningful discussion of race.

That said, had the above message been uttered by any other person, Kirkpatrick's position might be given a little more credence. Does it make his ultimate analysis any more correct? No. But, does it mean that for all his flaws, that he doesn't have anything meaningful to say? Not at all.

(And, for what it's worth, I think Calvin Terbeek nailed this one, RE: SB...he's still more right than wrong.).

# posted by

Der Schatten : 4:04 PM

Robert Link said...

Bart: If you are a living constitutionalist who believes the Constitution means whatever popular modern opinion thinks it should mean...

Okay, all of you who fit that category, raise your hand.

I understand that most folks who consider themselves "living constitutionalists" believe that courts should "interpret" the Constitution to mean what the living constitutionalists themselves want it to mean, regardless of what most citizens believe.

However, contrary to that reality, those who follow this approach tell everyone else that the meaning of the same words in the Constitution has evolved over time as one generation of citizens gives way to another and should be interpreted according to how the citizenry would have it today.

I could not resist skewering that hypocrisy by pointing out that the "living constitutionalists" who somehow interpret equal to mean unequal in a positively 1984 fashion are completely out of step both with the original meaning as well as the current popular meaning of the term equal.

# posted by

Bart DePalma : 4:06 PM

This comment has been removed by the author.

# posted by

PMS_CC : 5:05 PM

Ummm... If the government entity is practicing racial discrimination and will not stop when confronted with the fact, you go to court to enjoin the discrimination as a violation of law.

Right, and how do you know that the government entity is practicing racial discrimination? How does one empirically recognize the use of racial categories in hiring or other processes?

One of those methods, no doubt, would be the use of statistics which demonstrate a clear institutional bias against a certain group of people. However, under your approach, such statistics couldn't be produced by the government in the case of race, because a governmental institution can't use racial categories to distinguish between subpopulations.

Furthermore, given that no record could be taken of such categories during the entity's operation, no records--short of a memo that says "Hold my calls. Don't hire Asians."--would be available to confirm or deny the accusation.

# posted by

PMS_CC : 5:52 PM

PMS_Chicago said...

BD: Ummm... If the government entity is practicing racial discrimination and will not stop when confronted with the fact, you go to court to enjoin the discrimination as a violation of law.

Right, and how do you know that the government entity is practicing racial discrimination? How does one empirically recognize the use of racial categories in hiring or other processes?

Governments are generally easy to prove racial discrimination cases against because they write the racism down in great detail in their policies. For example, in the Parents Involved case, the Court had no problem finding from the factual record that Seattle was using race as the only qualifier to enter three schools offering specialized educational services.

One of those methods, no doubt, would be the use of statistics which demonstrate a clear institutional bias against a certain group of people. However, under your approach, such statistics couldn't be produced by the government in the case of race, because a governmental institution can't use racial categories to distinguish between subpopulations.

How do you figure? Exactly when did I say that Governments could not keep racial data in order to monitor whether they were practicing racial discrimination?

Governments must not grant or deny the protection of the laws based on race. That does not mean they cannot gather data about race for informational purposes.

# posted by

Bart DePalma : 7:04 PM

"Advance to the Rear" means something very specific - it hit me in the shower today. Back in the day when you got on a bus the driver would say "advance to the rear". Of course that is asking people to go to the back of the bus. "Going to the back of bus" of course brings us back to Rosa Parks. So you can see that Kilpatrick is up to the same old crap - just more nuanced and subtle. Completely unreconstructed. It is that kind of passive-aggressive crap that I really disdain among the forms of Southern racism in the US.
Best,
Ben

# posted by

Benjamin Davis : 11:37 AM

Ben,
While I agree that Kilpatrick is up to his typical racist ways (though disguised as "analysis"), I think that comments such as yours are precisely what I was addressing earlier.

To play racism as a purely regional phenomenon is no less bigotry than to classify others on the color of their skin, their religious beliefs, or the "stars upon thars".

America is in serious, serious denial if our people cannot, or refuse, to acknowledge that racism is a national, not regional problem, and that it requires a NATIONAL effort, not some xenohpbic, regionalized scapegoating. (e.g., During the civil war the second leading harbor for importation of African slaves was New York, yet are slavemasters depicted with a Brooklyn whine?)

# posted by

Der Schatten : 6:55 PM

I am sorry if this appeared to be a comment that seemed to make racism appear to be a peculiarly southern phenomenom. I was intending to speak about a type of racism I had noted that seemed to be one variation that I had seen particularly in my time in the south. There use to be the term that the south meant "South of the Canadian border". Please excuse me. I take your point.
Best,
Ben

# posted by

Benjamin Davis : 10:40 PM

In addition to everything else, Kilpatrick was associated with the Virginia Commission on Constitutional Government, which was in the hands of authentic extremists, even by the standards of the time. Anyone interested in the legal resistance to Brown might look up the record of, for example, R Carter Pittman, Alfred Avins & Sam Crutchfield.

# posted by

KH : 4:07 PM