A musing (and a weak defense)

[Curtis, Michael K.]

The story of the takeover of the Georgia Republican Party is in Taylor
Branch, Pillar of Fire: America in the King Years 1963-65 (I think); it
is one of his books. It is a sad story because the party had been
bi-racial, but blacks were removed from all party positions.  I am at
home and don't have the book here. But I think that is the volume--and
as I recall an ugly statement was made celebrating black removal.  By
the way if you have not read the Branch books they are great history.
He had the advantage of all the J Edgar Hoover wiretaps of King, oval
office recordings, etc.  Some of the best history I have ever read. If
you can't find it let me know and I will look for the page cite. 

I don't think Goldwater was a racist.  Not at all.  He was not.  Of
course, states' rights was also the slogan of those opposing school
integration, the Civil Rights Acts the Voting Rights Acts etc.  As to
the commerce clause, I think Heart of Atlanta was an easy case under the
precedent but a hard one because of the social facts. Segregation in
hotels, motels, restaurants, etc.  were obstructions to the flow of
commerce, not to mention Wickard.  So it was pretty easy under existing
law, but I suspect Goldwater or his advisers Wm. Rehnquist and Robert
Bork, did not agree with the precedent or perhaps just thought it should
be more confined to its facts . But that is just a guess.  Goldwater
went to Plaqemin (sic) parish La. as I recall for a campaign event with
Leander Perez, a leading Southern racist.  He knew he was appealing to
racists and that he was not one.  My recollection (also from Branch but
could be wrong) is that he said if you wanted to go duck hunting you
needed to go where the ducks were. 

I grew up in the South and went to the Univ. of the South for undergrad
(1960-64).  The student body was heavily from the deep South,
Republican, segregationist, and pro Goldwater.  The faculty (no
surprise) was mostly Democratic and pro integration (& most were
southerners), but the school had no blacks most of the time I was there.
Toward the end of my years there was a student from Nigeria I think, but
sadly a cross burning by some students outside his dorm room (not much
of a burning cross) beating on his door to demand that he come out and
shine their shoes, etc. happened and he left. 

I am not saying segregationists were mostly evil people. They had the
beliefs they were taught like the rest of us, and most I am assume
strongly disapproved of the harassment of the African kid or the shaving
of the head and painting it black (by force) of a student who brought a
back girl to a dance. But the Goldwater supporters in the South were not
saying, let's pass a public accommodation act in S.C. or Alabama, or
Georgia or wherever.  Nobody that I recall in the Southern states'
rights opposition was saying these are very good ideas and we should
pass a voting rights act or a public accommodation act at the state
level and get rid of the caste system; let's open the voting rolls and
encourage backs to vote.  So for these people it was not just about
states' rights.  It was the view that the racial segregation system and
disfranchisement was proper.   States' rights was a bulwark to protect
the system and was more polite to talk about. None were fighting to
change things at the state level that I recall.

As a practical matter, Goldwater's states' rights opposition to the
Voting Rights Act, if successful, would have left a grossly
anti-democratic, racist, and unconstitutional denial of the right to
vote untouched. I don't doubt that he was influenced by his view of
constitutional principles on these issues, nor do I doubt that these
constitutional principles in fact tended to support an awful racial
caste system (that I accept he did not believe in) , and in my view were
awful constitutional law.  But there was precedent for them--as to
voting-- including no federal power to deal with Southern constitutional
amendments designed to disfranchise blacks.   By even 1954 the Court was
moving in the other direction on voting.  The awful voting (or not
voting) rights cases were by Holmes as I recall.

Goldwater might have traveled the South and called for these changes at
a state level. Maybe he went to SC and urged integration of hotels,
restaurants, etc. and called for state laws to require it.  I think he
may have thought it violated the rights of private property--that was a
common opposition argument at the time.  Anyway he was a politician
seeking votes and politicians do not typically do things that they
expect to antagonize the voters they seek to win over.

Michael Curtis   

-----Original Message-----
From: David Wagner [mailto:daviwag at regent.edu] 
Sent: Tuesday, April 13, 2010 11:47 AM
To: Curtis, Michael K.; Finkelman, Paul <paul.finkelman at albanylaw.edu>;
Volokh, Eugene; CONLAWPROFS professors
Subject: RE: A musing (and a weak defense)




> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Curtis, Michael K.
> Sent: Tuesday, April 13, 2010 11:04 AM
> To: Finkelman, Paul <paul.finkelman at albanylaw.edu>; Volokh, Eugene;
> CONLAWPROFS professors
> Subject: RE: A musing (and a weak defense)
> 
> Blacks were expelled from the Georgia Republican Party when the
Goldwater people took over.


That's an extremely interesting piece of history, if literally true as
stated. 

Those of us who personally know veterans of the Goldwater campaign know
that in opposing the Civil Rights bill, Goldwater took a principled
stand on the limits of Congressional power (e.g. Congress couldn't use
the Commerce Clause to regulate conduct that was not plausibly
interstate commerce -- this was before the decisions in McClung and
Heart of Atlanta; and the Sec. 5 power extends only to state action);
that he knew that many would couldn't know better, and also many who
should, would interpret his stance as racism; but that he couldn't let
that influence his decision. 

But of course, the story you allude to is about "the Goldwater people"
(though not the ones I know), not about Goldwater, so -- do tell.

David M. Wagner
Regent