Reactionary rhetoric and liberal legal academia.

• Author: Driver, Justin
• Position: Arguments made as to perversity, futility, and jeopardy against the Civil Rights Act of 1964 - The Meaning of the Civil Rights Revolution

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 INTRODUCTION

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? Five decades after President Lyndon Johnson signed the Civil Rights Act of 1964 into law, it is illuminating to recover the actual, rather than the putative, nature of mainstream opposition to Title II in the terms that opposition was articulated contemporaneously. This exercise in historical recovery is urgent because even some of our most sophisticated scholars of constitutional law now seem to misapprehend that opposition, assuming it found articulation in more aggressive forms than it actually did. (11)

Upon examining the arguments widely respected figures deployed in attacking Title II, certain patterns of argumentation become almost immediately apparent--at least when viewed through modern spectacles. During the mid-1960s, mainstream critics of public accommodations legislation consistently expressed their opposition in formulations that will appear familiar to readers of Professor Albert O. Hirschman's magnificent volume from 1991, The Rhetoric of Reaction. (12) Hirschman contended that opponents of progressive reforms have, for more than two centuries, availed themselves of three standard types of counterarguments, which he classifies as sounding variously in perversity, futility, and jeopardy. (13) When liberals propose ideas for social improvement, Hirschman observed, opponents frequently react to the proposal by asserting it will: intensify the very problem it attempts to remedy, and thus prove perverse; fail to achieve the desired reform, and thus prove futile; and/or threaten to undermine a more fundamental value, and thus jeopardize some earlier, hard-earned societal accomplishment. (14) Although Hirschman did not address the debate over public accommodations legislation, mainstream opponents of that legislation--including such figures as Robert Bork, Barry Goldwater, and William Rehnquist--repeatedly employed Hirschman's modes of reactionary rhetoric during the mid-1960s. Tracing the prevalence of reactionary rhetoric among notable opponents of public accommodations legislation should highlight the significance of Hirschman's insights for law professors--a group that, despite demonstrating considerable familiarity with part of Hirschman's oeuvre, has paid insufficient attention to The Rhetoric of Reaction. (15)

Legal academia's relative inattention to The Rhetoric of Reaction is regrettable not least because those forms of argument today appear with great frequency in what would seem to be an unlikely place: the scholarship of liberal law professors. Prominent left-leaning law professors often criticize widely celebrated Supreme Court opinions that sought to vindicate the rights of marginalized groups as fruitless, because they have had perverse effects, ended up being futile, or jeopardized some larger achievement. Liberal law professors do not, moreover, limit the application of such reactionary rhetoric to Supreme Court opinions that were decided many years earlier. Instead, they also apply such rhetoric prospectively, warning about the dangers they contend will accompany future judicial interventions to protect minority rights. The legal left's reactionary rhetoric toward the Supreme Court has played a substantial role in shaping what might be termed the Age of Judicial Skepticism, a time when legal academia views the possibilities of social reform by the judiciary less with twinkling eyes than with jaundiced ones. Given the prominence of reactionary rhetoric among liberal law professors, it seems imperative to grapple with the reasons that may account for its current ascendance in such a seemingly improbable location. In addition, it is crucial to identify the costs that may result from liberal legal academia's excessive invocation of reactionary rhetoric in scholarship about the judiciary.

The balance of this essay proceeds as follows. Part I briefly sketches Hirschman's taxonomy of reactionary rhetoric. Part II maps Hirschman's taxonomy onto contemporaneous mainstream opposition to public accommodations measures. Part III, the heart of the essay, widens the frame to chronicle the prevalence of reactionary rhetoric in present-day liberal legal academia, offer some potential explanations for its prominence in such an improbable place, and identify some of the undesirable consequences that may stem from reactionary rhetoric's stronghold among liberal law professors. A short conclusion follows.

At the outset, it is essential to make clear that liberal law professors' reactionary rhetoric appears in a severely circumscribed location, and in no way extends to their entire worldview. While legal liberals express deep skepticism about the judiciary's capacity to issue significant progressive opinions, they do not doubt that meaningful social progress can occur through other mechanisms. Instead of relying on the judiciary, they suggest that elected officials, at the state or federal levels, must undertake significant social reforms themselves if those reforms are ultimately to prove successful. In this critical sense, then, liberal law professors who use reactionary rhetoric in analyzing progressive Supreme Court opinions (either actual or hypothetical) strike a fundamentally different pose toward the possibility of reform than do the more expansive critics Hirschman explored in The Rhetoric of Reaction. Despite this important difference, liberal legal academia's fascination with reactionary rhetoric demands investigation because such an undertaking yields valuable insight into the modern American constitutional order.

1. SKETCHING REACTIONARY RHETORIC

   Toward the beginning of The Rhetoric of Reaction, Albert Hirschman observed that the modern world is often temperamentally and intellectually receptive to the ultimate goals of proposed progressive measures. (16) Accordingly, when progressives advance ideas for social reform, opponents seldom launch frontal assaults on the overarching objective. (17) Instead, Hirschman contended, opponents...