Monday, July 15, 2019

Ted Cruz and Other Right-Wing Trolls Say that Democrats are the Real Racists Because They Used to Be

by Michael C. Dorf

Last week, Tennessee Governor Bill Lee took bipartisan heat for signing a proclamation declaring July 13 "Nathan Bedford Forrest Day." Did Lee deserve the criticism? Maybe not. A state law obligates the governor to declare holidays honoring, respectively, Forrest, Confederate General Robert E. Lee, and Confederate Decoration Day. Yet Governor Lee is not entirely blameless. Given his own past expressions of admiration for the Confederacy, he could certainly be doing more to secure passage of a new law repealing the existing obligation to declare the offensive holidays.

But let us put Lee aside for the moment to focus on one of his critics. Texas Senator Ted Cruz took to Twitter to call out Lee and Tennessee legislators. Cruz tweeted:
This is WRONG. Nathan Bedford Forrest was a Confederate general & a delegate to the 1868 Democratic Convention. He was also a slave trader & the 1st Grand Wizard of the KKK. Tennessee should not have an official day (tomorrow) honoring him. Change the law.
I agree with nearly all of that. Why only nearly all? Because in the midst of an otherwise quite sensible anti-racist plea, Cruz could not resist trolling Democrats. Of what possible significance is it that Forrest was a delegate to the 1868 Democratic Convention? The slogan of that convention was: "This is a White Man's Country, Let White Men Rule." Perhaps Cruz was referring to that?

Not a chance. How many of Cruz's Twitter followers or Americans more generally are sufficiently familiar with the history of the period to know the 1868 Democratic convention's slogan or anything at all about it? Can you name the Democratic nominee for the presidency in 1868? (Answer here.)

So why did Cruz list Forrest's status as a delegate to the 1868 Democratic Convention alongside sins like his role in the Klan? The short answer is that Cruz was engaging in a now-common bit of misdirection from Republicans: calling attention to the fact that prior to the mid-1960s, the Republican Party was overall less hostile to civil rights and less racist than the Democratic Party--as though that should somehow discredit the modern Democratic Party. This move seems aimed at two audiences: easily confused low-information voters; and white voters who would otherwise be uneasy about the GOP's arguably racist policies and the inarguably racist president.

Because I am not a consistent consumer or monitor of right-wing media, my exposure to the Democrats-are-the-real-racists meme has been limited. Nonetheless, even with my merely sporadic engagement with the right-wing-o-verse, I have encountered the meme often enough to conclude that it must be fairly standard. As made by the likes of, say, ex-con Dinesh D'Souza, the recitation of the Democratic Party's past is part of a larger demented conspiracy theory.

And the theory is really quite stupid. It is a well-known fact (among people who know well-known facts), that from the lead-up to the Civil War through the mid-1960s, white racists especially in the South but also elsewhere found a more natural home in the Democratic Party, while the Republican Party--as the party of Lincoln and then Reconstruction--came to favor abolition of slavery and civil rights. Then, nearly a century later, President Lyndon Johnson signed civil rights legislation and, as he predicted, the Democrats lost the South for a generation--now more like two or three generations.

Realignment did not happen immediately. It took Nixon's Southern Strategy, Reagan's coded references to "welfare queens," the Willie Horton ad in support of HW Bush, and Donald Trump's embrace of white nationalism to turn the Solid South from solidly Democratic to solidly Republican, but turn it did.  Given that white Republicans are much more likely to embrace racist ideas historically associated with the Democratic Party, it's not at all clear why anyone other than a propagandist would think that the Democratic Party's past association with racism should be currently salient.

That is not to say that there is literally nothing of concern here. While no thinking non-racist would vote for Republicans over Democrats based on the history, we might wonder whether we ought to consider a name change. My view would be we ought to, were it not for the fact that doing so would confuse too many voters and likely lead to the election of more Republicans. Avoiding association with a historically tainted party has value, but not as much value as avoiding the election of people pursuing terrible policies in the here and now.

Meanwhile, in an effort to be as fair as possible, I scoured the Internet to see whether there was any version of the Democrats-used-to-be-racists-so-they-still-are meme that was well reasoned. I couldn't find one, but quite surprisingly, the closest thing I found to a coherent argument came from high-profile expert-in-nothing Sebastian Gorka. Gorka more or less fairly recounts the racist past of the Democratic Party, although he states, at best misleadingly, that "the Republican Party’s embrace of the Dixiecrats was always tepid at best." Still, to Gorka's credit, he calls the Democratic Party by its correct name, rather than using the "Democrat Party" slur. Gorka even seems to recognize the need to connect the Democratic Party's racist past with its current stance. He tries to do so by claiming that Democratic policies, especially in cities with Democratic elected officials, have failed the African American community, while claiming further that Republican Trump's economic policies have led to better times for all racial groups.

These last claims are highly contestable.  There is evidence that in general the economy fares better under Democratic presidents than under Republican ones. Democratic local governments certainly have their share of corruption and ineptitude, but a serious person would attempt to take account of the impact on cities of state and national policies as well.

None of this is to say that just because the Democratic Party's worst racists migrated to the GOP, Democrats have achieved pure racial harmony. As the ongoing struggle between Democratic House leadership and four first-term congresswomen of color illustrates, there are awkward divides along ideological and generational lines about how to expand the range of voices deciding party policy.

But let's keep that struggle in perspective by noting Trump's response. He tweeted that the congresswomen should "go back" to the countries they "came from"--even though all but one of them were born in the US. In light of that and countless other words and deeds from Trump and many of his enablers, one ought not take seriously Gorka's conclusion that "the Democrats are still the real racists."


Joe said...

See also, Marty Lederman's latest at Balkinization.

Until they change the law, state governors should do something to remind people about the true nature of the people covered. Cruz soon after that tweet, had this:

"American history is complicated. As a general matter, we shouldn’t be tearing down historical statues or erasing our Founders, even though they were imperfect men. But we should also provide context where we can. And, we shouldn’t be issuing proclamations today honoring Klansmen."

The law covers other people like Robert E. Lee. Note how the tweet only covered one person. I won't be snarky and say "our Founders" is a dog-whistle to people who support the Klan. That would be wrong. But, why the need [fourteen minutes later] to add that? Can't just once a simple denunciation of someone worse even than your run of the mill Confederate be provided? Anyway, "context" can even now be added.

Shag from Brookline said...

Some who comment at this Blog are familiar with this Cruz approach in comment threads over the years at Balkinization. The leader of the current Republican Party is Trump, a racist. Growing up in the Boston area in the Great Depression and WW II, I learned of the Republican Party of Lincoln. Of course today's Republican Party is not the Republican Party of Lincoln. In my early days, MA had Republican Senators, Saltonstall and Lodge, Jr. They were well regarded as moderates in MA even by those who voted for FDR several times. I had learned that Boston had a strong voice in abolishing slavery. Over the years I learned that the history I was taught in Boston Public Schools was not in depth.

Jumping ahead to the fall of 1998 when I semi-retired from the practice of law that began in 1954, I audited as a senior citizen courses at a local university and engaged in the Internet. One of the questions that I sought an answer for was: When did the Republican Party cease being the Party of Lincoln? There is no clear answer. It has been pointed out following Reconstruction, the Republican Party focused on strengthening itself as America expanded with new states to the Pacific, by electing Republicans in the added states not only at the federal level but also the state level. The Republican Party was too engaged politically to continue actively what Lincoln had started with the Republican Party. Mike describes changes in the Democratic Party and the Republican Party during my lifetime, similar to descriptions of mine in comment threads at this Blog and more frequently at Balkiniztion.

For me, the big change was in early 1954 in my last semester in law school with the Warren Court's unanimous decision in Brown v. Bd. of Educ., for me a Hallelujiah moment. I had taken ConLaw in the Fall of 1952; it focused significantly on he Commerce Clause, but had included Plessye v. Ferguson. This jump started the civil rights movement that changed the Solid South from the Democratic to the Republican Party. As Mike notes, Nixon, Reagan and George H.W. Bush used the new Republican Party's Southern Strategy in this shift.

After several decades, Brown was no longer overtly challenged. I believe that the development of originalism in tandem with the establishment of The Federalist Society aimed at the judicial activism of the Warren Court was deep down a resentment of the Warren Court's foundational decision in Brown. The changing demographics and the election and reelection of Obama revived racial animosities of the Republican Party as demonstrated by the 2016 election of the racist Trump. I noted earlier this morning in Daily Kos' APR a "prediction" of a rising claim by Republicans that the decision in Brown was unconstitutional. Those who believe in White Supremacy may take solace that since slavery was abolished an Amendment to the Constitution, it can be restored by further amendment.

That's what I have for now, other than to direct readers to Marty Lederman's post at Balkinization today on Trump's recent racist tweets and the silence of Republicans.

Joe said...

The Republican Party started as a coalition in the mid-1850s with the core of being opposed to the spread of slavery. It also had other platforms, which is how coalitions tend to work. In time, the strength of their concern about civil rights weakened, so that by the 1870s, only a minority of them strongly were willing to do much.

The party still retained enough support of civil rights and nostalgia for blacks to remain loyal into the 1960s. A key moment here was the switch of Jackie Robinson when Barry Goldwater opposed the Civil Rights Act.

Michael C. Dorf said...

. . . and in completely expected news, now Trump has tweeted that his targets are the real racists.

Tim Zick said...

See also the "all gun control is racist" meme that has gained popularity on the right (of course, so too would all marriage, property, voting, and other laws be so tainted). In that context, as here, there is an effort to characterize those calling for regulation or improvement as the "real racists" and to associate the right with the civil rights movement.

Coyote said...

Good post, Professor Dorf! For what it's worth, it's quite interesting that, while in terms of total percentages the GOP was more in favor of the 1964 Civil Rights Act than the Democrats were, if one looks at Southerners and non-Southerners separately, then for both Southerners and non-Southerners the Democrats were more in favor of the 1964 Civil Rights Act. It's just that Southerners made up a much larger percentage of the total Democrats in Congress back in 1964 in comparison to Republicans in Congress back then (in 1964, there were almost no Southern Republicans in the US Congress; for instance, the US Senate only had one--John Tower, who opposed the 1964 Civil Rights Act together with about 95% of Southern Senate Democrats). Of course, as you said, many--if not most--of the Southern Whites who supported the Democrats back in 1964 support the Republicans nowadays.

BTW, I'm not as gung-ho about statistics that show that the US economy performs better on average under Democrats than under Republicans. I'm certainly not disputing the accuracy of these statistics; rather, I am simply challenging the causation here. For instance, it's possible that the US economy performs better under Democrats not because of anything that the Democrats actually do (with a possible prominent exception during the 1930s and 1940s), but rather because Democrats get elected more often during bad economic times due to their economic message possibly being more attractive when people are economically struggling than when people are doing well economically. It's possible that the GOP's "rugged individualism" message is more attractive when people are doing well financially/economically and that the Democrats' "we need to help struggling ordinary people" message is more attractive when people are doing poorly financially/economically. At the very least, it's something worth thinking about.

Coyote said...

@Shag: In response to this comment of yours:

"Those who believe in White Supremacy may take solace that since slavery was abolished an Amendment to the Constitution, it can be restored by further amendment."

Any US Constitutional Amendment that will bring back slavery (or state-mandated segregation, or anti-miscegenation laws) would obviously be unconstitutional. The odds of such an amendment actually passing would be as close to zero as possible, but in the highly bizarre hypothetical scenario that such an amendment were to pass, I certainly can't imagine the US Supreme Court allowing such an amendment to actually stand even if it would have been properly passed and ratified. After all, living constitutionalists often value their interpretive theory due to the results that it generates, and in this case, it would be crystal-clear that the best results would be achieved by striking down this constitutional amendment even though doing this would violate the "later in time" rule.

Such a hypothetical amendment might be a real challenge for originalists, though--especially those who value the constitutional text over the draftsmen's intentions and/or the draftsmen's/ratifiers' expectations. After all, the text of the US Constitution--including the text of the 13th Amendment--does not actually prohibit the 13th Amendment from being repealed by another constitutional amendment. Politicians in the 1860s clearly knew how to create an unconstitutional constitutional amendment since there was a serious debate about the Corwin Amendment in the US Congress at the start of the 1860s. However, for whatever reason, the draftsmen of the 13th, 14th, and 15th Amendments did not actually make any of these constitutional amendments unrepealable.

Coyote said...

BTW, if/when Professor Dorf will write about his thoughts on the idea of an unconstitutional constitutional amendment, it would certainly be interesting to see what he would say about a purely hypothetical constitutional amendment that was properly passed and properly ratified that repealed the 13th, 14th, and/or 15th Amendments to the US Constitution. Would such a US constitutional amendment actually be unconstitutional in Professor Dorf's opinion even though the text of the US Constitution does not actually prohibit such a US constitutional amendment? I'm highly tempted to say Yes--though Professor Dorf did previously write about the importance of the "later in time" rule.

Shag from Brookline said...

Prof. Richard Albert, BC Law, has written extensively on the subject of unconstitutional constitutional amendments, including at:

I don't take solace in what White Supremacists might. From my readings of Prof. Albert in the past, the issue has apparently not been addressed by SCOTUS. Some constitutions in more recent years have specifically addressed unconstitutional constitutional amendments.

Joe said...

Other than a provision involving the Senate, which can be removed or worked around, the federal Constitution leaves open any amendment.

Shag from Brookline said...

Query: Might a second constitutional convention address unconstitutional constitutional amendments? In the current political environment, what might we expect?

Joe said...

Shag's article is a quick read.

It is quite possible, as seen by Art. V (two limits were time barred), for a constitution to have a rule limiting amendments. The rule often will have a workaround or we might just need a new constitution. But, many states and nations have had many.

As the article notes, an amendment might be problematic because it was procedurally handled improperly. This arose with state popular referendums but at least on the federal level would likely be deemed a political question. At a couple blogs Shag and I read, procedure debates arose in the context of the ratification of the ERA.

A second convention very well might consider blocking amendments that allow certain things such as slavery (a proposed amendment protecting it from 1861 arguably still pending). People will likely on principle question such a move, saying supermajority checks are in place and that on principle we should trust popular sovereignty.

The Thirteenth Amendment has an exception and its language is not deemed to apply to various situations (like the draft) that some think applicable. We can always imagine a future age where it will arise again too. Planet of the Apes etc. And, appropriate for this blog, some think maybe it is already being violated regarding primate research.