E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In 1964, the Republican Party made a fateful decision to “go
hunting where the ducks are” in Barry Goldwater’s (in)famous words. Goldwater’s opposition to the Civil Rights
Act of 1964 and that of some of his supporters may have been based on the sincere
libertarian conviction that government should not tell businesses who they must
serve and who they must consider hiring.
Nevertheless, Goldwater and his allies were well aware that the vast
majority of persons who opposed the Civil Rights Act of 1964 and related
measures did so because they supported a racist status quo. The end result was the modern Republican Party, an alliance of
elites and interests who advanced intellectual respectable justifications for
policies that the mass base of the party supported because they buttressed longstanding racial, religious and gender hierarchies. Law review articles providing histories
justifying the right to bear arms be invoked when repealing gun control laws that
interfered with a southern gun culture that partly developed as a means of
controlling persons of color. Justice
Antonin Scalia provided cover for the Republican coalition by repeatedly
insisting that courts could not look at the actual motives underlying
legislative decisions. As long as some
neutral reason existed for not teaching evolution or kicking all persons of
color off a jury, the Supreme Court would not ask whether the best actual
explanation for the policy was the desire to promote Christian or maintain white supremacy.
This
alliance of business, true believers and racists required some delicate
managing. On the one hand, Republicans
could hardly inform the many upper-class women in their coalition that they
should be at home caring for their husbands and children. Many affluent
Republicans who favored deregulation sincerely abhor crude racist language and practices. On the other hand, Republicans had to signal
to much of their mass base that, outside of practices broadly recognized as
beyond the pale, the party was not going to do much to undermine existing racial,
gender and religious hierarchies. On the
other hand, again, these signals could not be so blatant as to make it obvious
that a significant percentage of the Republican Party was being moved by
bigotry rather than, as Republicans liked to tout, by commitments to limited
government, family values, and the like. Country-club Republicans needed to convince others and themselves that they were not merely providing a veneer of respectability for the most bigoted forces in American politics.
Donald
Trump’s success in gaining the Republican Party’s nomination for the presidency
stripped the veneer off of Republican respectability. Trump demonstrated that a substantial proportion
of the Republican electorate was motivated by desires to keep persons of color,
women, and non-Judeo-Christians in their place. Those Republicans
preferred a candidate who “told it like it is” to candidates who used such phrases as “limited government,” “right to life,” and “the rights of small businesses” which could be interpreted one way by the more elite wing of the party and a different way by the mass base. In short, what Trump exposes is that, whatever the personal beliefs of the Romneys, Bushes, and Kasichs of the world, they have been leading a deeply racist coalition.
These
observations explain why the drive to have mainstream Republicans repudiate
Trump is besides the point. The real
issue is will Republicans repudiate Trump supporters and no longer hunt where those ducks are. The answer seems already clear. Trump is to be repudiated only because he speaks too directly and not because he is mobilizing the most bigoted forces in American politics. Republicans want to mobilize those forces as well. They have been doing so for years. But Republican political operatives want the more respectable forces in the party to lead the crusade through language that will, without making the direct bigoted appeals that turn off more
affluent Republicans supporters, again signal an unwillingness to challenge existing
status hierarchies. Should this happen, the repudiation of Donald Trump will have no lasting significance. A political culture
in which a quarter to a third of the electorate is moved by race, gender and religious prejudice is a
political culture headed towards a train wreck, regardless of the Supreme Court and regardless of the Constitution.