Brown and Red: Defending Jim Crow in Cold War America.

• Author: Briker, Gregory

Table of Contents Introduction I. The Standard Geopolitical Account of Brown II. Jim Crow as a Cold War Imperative A. Before Brown B. Brown C. Massive Resistance D. The Long Tail III. Implications of the Cold War Counterimperative A. On Histories of Civil Rights B. On Theories of Legal Change C. On Racism's Malleability and Tenacity Conclusion Introduction

Brown v. Board of Education (1) is the most thoroughly scrutinized and celebrated Supreme Court opinion in modern American history. It would be virtually impossible to overstate Brown's centrality to modern constitutional law, as leading scholars and jurists from across the ideological spectrum have argued that any viable theory of constitutional interpretation must accommodate the 1954 decision. Pamela Karlan has contended that "every constitutional theory must claim Brown for itself," as a theory failing to do so gains no "traction." (2) Brown has become sacrosanct, with then-Judge Richard Posner calling it "the most esteemed judicial opinion in American history," (3) and Justice Stephen Breyer deeming it the Supreme Court's "finest hour." (4) Fifty years after the decision was announced, Judge Robert Carter, a litigator in Brown, described it as "one of the most important icons of American law," for it "effected a revolutionary change in American life." (5) It is thus hardly an exaggeration to conclude, as J. Harvie Wilkinson III did, that "Brown may be the most important political, social, and legal event in America's twentieth-century history." (6)

In recent decades, the standard account of Brown has placed the decision in geopolitical context, portraying it largely as a product of the Cold War. On this view, the persistence of racial segregation became an international embarrassment in the American fight against communism after World War II. Jim Crow amounted to a public-relations disaster from the perspective of U.S. officials seeking to win the global confrontation of ideas, particularly in "Third World" nations where people of color made up the majority of the population. This concern led Americans with political power--from members of Congress and diplomats to presidents and judges--to conclude that Plessy v. Fergusons doctrine of separate but equal (7) must be jettisoned. In 1980, Derrick Bell introduced his interest-convergence theory, arguing that "[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites." (8) According to Bell, Brown exemplified interest convergence, with the Cold War playing an indispensable role in motivating white Americans to seek the end of school segregation. (9) In law review articles and a subsequent book, Mary Dudziak offered extensive historical support for Bell's theory, finding evidence that federal officials consciously responded to international criticism of Jim Crow by embracing civil rights. (10) Desegregation thus became a "Cold War imperative." (11) The Cold War-imperative thesis has found receptive audiences throughout the legal academy, with distinguished scholars and leading constitutional casebooks endorsing it. (12)

This Article complicates and challenges this standard geopolitical account by emphasizing that a broad array of Americans viewed preserving, rather than destroying, Jim Crow as a Cold War imperative. Segregationist Cold Warriors contended that anticommunism required maintaining racial separation in the United States. They assailed integration as a product of central governmental authority, itself an apparent hallmark of communism that undermined American federalism. To segregationist ears, the death knells of "separate but equal" and of "states' rights" were one and the same. Communists purportedly celebrated the newly enfeebled states because an America with a single strong federal government was both more aligned with communism and easier to influence than one with dispersed, decentralized power structures. Segregationists further believed that integration would weaken the nation in a showdown against the Soviet Union by creating racial discord, internal disunity, and social strife. They feared that integrated classrooms would inexorably yield integrated bedrooms, spelling the end of American strength on the world stage by contaminating white racial purity. (13) When it came to segregation in the United States, anticommunism cut both ways.

Crucially, these defenders of Jim Crow were not confined to the fringes of American public life. (14) They included prominent government officials, current and former jurists, nationally syndicated columnists, and ordinary citizens. Former Supreme Court Justice and Secretary of State James Byrnes, Federal Bureau of Investigation (FBI) Director J. Edgar Hoover, and dozens of sitting governors and congressmen all linked anticommunism to segregation. Some of the Senate's main power brokers--including at least four future presidents pro tempore--endorsed these views. (15) Proponents spoke in legal cadences, waging what one Alabama columnist termed a "constitutional cold war" against integration. (16) The rhetoric of anticommunism was used to justify segregation in wide-ranging contexts, from Citizens' Council rallies to congressional galleries. (17)

Legal scholarship has largely overlooked critical moments in which segregationists appealed to anticommunism. To take only one prominent example, scholars have thus far failed to note that before Brown at least one federal judicial decision explicitly invoked anticommunism to rationalize rejecting a challenge to separate but equal. (18) Anticommunism was so ubiquitous among segregationists that Chief Justice Earl Warren was unsurprised when, in the wake of Brown, the Supreme Court received hundreds of pieces of hate mail--many of which condemned the decision as "pure Communism." (19) When the Court reconvened a year later to provide guidance on the enforcement of desegregation, several southern states submitted briefs that explained how anticommunism demanded either segregation or a gradual approach to integration. (20)

The alleged connections between communism and civil rights proved essential to the segregationist worldview. Many white southerners fervently believed that Black and white people alike wanted to maintain the segregated status quo, and that both races benefited from Jim Crow. (21) The stereotypical image of Black people as docile and submissive--an image older than the Civil War--dovetailed with the belief that they accepted and even cherished segregation. (22) But tension existed between the claim that Black people did not want integration and the fact that legal and political challenges to racial segregation were occurring with increasing frequency. Anticommunism helped to resolve this tension: Though Black people did not truly desire integration, they had been manipulated into demanding civil rights by outside agitators. These agitators included northern "carpetbagger" activists and communist agents--groups that the segregationist mind conflated. The NAACP and the CCCP thus combined to create an utterly unappetizing alphabet soup, a concoction made up of intermingled, alien forces. Those forces, segregationists held, were bent on dismantling not just the southern way of life, but the American way of life, too.

Some white people could not even begin to fathom the idea that segregation actually harmed Black students. As a result, when the Brown Court cited social-science research to that effect in the notorious Footnote Eleven, segregationist commentators did not merely question its integrity or appropriateness in a legal decision. (23) In fact, they also insisted that the social scientists that Brown relied upon were tainted by communist affiliations. To them, these allegations magnified Brown's danger: The decision pushed the country toward communism by authorizing federal intervention in local affairs, and it did so by endorsing false, communist-tinged evidence. While every law student learns about this most infamous footnote in constitutional law, an anticommunist lens is necessary to provide a complete picture of why, precisely, it proved so contentious.

The concern that communism and civil rights were entangled emerged predominantly in the South but resonated across the country. The fusion of anticommunism and segregation also long predated both the advent of the Cold War in the 1940s and the Red Scare that peaked during the 1950s, when anticommunist rhetoric attained its greatest potency. More than a decade before Joseph McCarthy took his seat in the U.S. Senate, federal lawmakers proclaimed that communists had infiltrated the civil rights movement and the legislative process. While some scholars assert that segregationists wielded anticommunism as simply a convenient political weapon--that they were anticommunists in name only (24)--we argue that such dismissals misconstrue the opposition to integration. Segregationists undoubtedly prioritized the continuance of racial apartheid in America, but they cannot invariably be cast aside as disingenuous anticommunists. Upon reflection, it should not be astonishing that segregationists availed themselves of anticommunist rhetoric and ideas during the twentieth century given that the Cold War exerted a sort of gravitational pull on virtually all of American social, political, and legal life. (25) But anticommunism was also more than a mere ornament for racist argumentation. Some segregationists doubtless employed anticommunist rhetoric as an empty, almost reflexive epithet; many others, however, developed detailed, sophisticated conceptions of why and how integration would benefit the communist cause.

The Cold War imperative contributed to the internationalizing of Brown and the broader civil rights movement. As Dudziak has argued, Brown should be understood as a "Cold War case." (26) We wholeheartedly agree. No hard line separates the histories of American foreign...