A musing (and a weak defense)

[David Wagner]

I've read Branch's books and yes, I specifically remember his clearing Goldwater of racism. I don't remember as clearly the part about the Ga. GOP, but I'm sure it's there and I can find it.  

That segregationists would shelter behind legitimate constitutional arguments is a res ipsa loquitur.  I was specifically interested in the Georgia narrative: I never imagined that Goldwater's supporters in the South consisted entirely of constitutional purists who would have been delighted to support the Civil Rights Act but for a scruple about the reach of the Commerce Clause. (Yet even so, Goldwater carried only the "deep" South, not the "upper," including Virginia.)

Heart of Atlanta's flow-of-commerce theory finds a basis not only in Jones & Laughlin, but also in pre-New Deal cases such as Stafford v. Wallace and Shreveport Rates. No need to reach for Wickard. McClung is perhaps more of a stretch (tho' less with Wickard figured in); but trying to imagine the Court in 1964 *not* upholding the Civil Rights Act is like trying to imagine (mutatis mutandis) Goldwater in the same year not "going where the ducks are." 





> -----Original Message-----
> From: Curtis, Michael K. [mailto:curtismk at wfu.edu]
> Sent: Tuesday, April 13, 2010 12:51 PM
> To: David Wagner; Finkelman, Paul <paul.finkelman at albanylaw.edu>;
> Volokh, Eugene; CONLAWPROFS professors
> Subject: RE: A musing (and a weak defense)
> 
> 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