Thursday, August 13, 2020

The Discomforts of Assessing Jim Crow-Era Politicians

by Neil H. Buchanan

Brown v. Board of Education is, of course, one of the landmark Supreme Court cases in American history and a touchstone in constitutional law.  To this day, legal scholars try to make sure that their preferred interpretive theories comport with the outcome in Brown -- even when those theories seem to point in the opposite direction -- because the idea that the U.S. Constitution would allow public schools to be segregated by race is simply repugnant.  No one, it seems, wants to be on the wrong side of that history.

But many people were very much in the wrong at the time and for a long while thereafter.  Moreover, even though being anti-Brown is now a fringe position, it is difficult to look at the country's regression toward open racism in the Trump era and not think that a depressingly large number of current American politicians and citizens would be willing to reject Brown today.  Once, "massive resistance" was the order of the day among almost all Southern politicians.  Now, although I hope that I am being too pessimistic, it seems increasingly clear that a very large minority of the country is not as committed to desegregation as we might have hoped.  (Donald Trump's missives to "suburban housewives," playing on racist fears about low-income housing, are certainly premised on that likelihood.)

I have been thinking about Brown again lately, because it came up indirectly in my research as I wrote last Thursday's column, "The New Poll Tax in the Florida Felon Disenfranchisement Mess."  There, I discussed another major achievement of the Civil Rights era, when Congress and the states adopted the 24th Amendment to the United States Constitution, the pertinent part of which reads: "The right of citizens of the United States to vote ... shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax."
 
Here, I want to contrast the political reaction in the South to Brown with support by some segregationists for the 24th Amendment.  One might reasonably have expected that white supremacists would have been just as firmly opposed to both civil rights advances, but in fact one of the most prominent anti-Brown voices was key in pushing the 24th through to ratification.  Why the difference?
 
I hasten to say that I am not a historian, and I do not intend to claim any special insight regarding the deep and complicated factors at play in the Jim Crow South.  Instead, I am approaching this as part of the process of asking how we should assess historical actors who were on the right side of one issue but the wrong side of others.  In particular, what do we do about buildings named after those politicians?
 
As I noted in my column last week, the 24th Amendment is a live issue in a case pending before the en banc United States Court of Appeals for the 11th Circuit.  Jones v. Florida was filed because the voters of Florida overwhelmingly approved a ballot measure in 2018 to amend the state constitution to allow ex-felons to vote (other than murderers and sex offenders), but the Republican-dominated state legislature and the narrowly-elected Republican governor quickly passed a law that forces ex-felons to pay for the right to vote.

An amicus brief (which I co-signed, along with a dozen other tax law professors) argues that the payments required under the new law are a "poll tax or other tax" and thus that the new law violates the Constitution.  The brilliant lawyers at Debevoise & Plimpton who drafted the brief at one point emphasized the key role played by Spessard Holland, a mid-20th Century political powerhouse in the Sunshine State who served as both governor and U.S. Senator, in adding the 24th Amendment to the Constitution:
"Congress discussed the abolition of the poll tax and other taxes denying or abridging a citizen’s right to vote for almost fifteen years before passing and ratifying the Twenty-Fourth Amendment. 108 CONG. REC. 4366 (daily ed. Mar. 16, 1962) (statement of Sen. Holland) (“This is the 14th year I have offered the proposal in the Senate.”). At the helm of the charge, introducing the bill each time, was its fervent sponsor, Senator Spessard Holland of Florida."
This is an especially nice touch by the brief's authors, given that it is Holland's political successors who are now imposing a modern poll tax in Florida.  It was also especially interesting to me personally, because my move last year to the University of Florida's law school included setting up my new office in Holland Hall in the Spessard L. Holland Law Center.
 
I had never had a second thought (or even a first thought) about the name on the building, and I had never heard Holland's name before moving to Gainesville.  It certainly is no surprise that the law school at the flagship campus of the state university would be named for a politician of Holland's prominence.  After reading a draft of the amicus brief, I momentarily had a feel-good moment about the ol' senator.  But then I thought, "I should look into this at least a bit."  Uh oh.

Last year, in my Dorf on Law column announcing my move to UF, I noted that I had been a bit nervous during the recruitment process, because I initially knew only that I was up for a "named chair."  Given Florida's political history, I worried that I would end up being offered a chair named after either a robber baron or a Confederate general.  I certainly would not have accepted an offer to occupy the Stonewall Jackson Chair in Tax Law, or something like that.  I was thus relieved when it turned out that my chair is named for James J. Freeland, a much-loved tax scholar who retired in 1994 after a long and successful career on the faculty.

Seeing that Spessard Holland -- not an academic but a long-serving politician -- had been a leader in ending poll taxes was thus another pleasant moment.  It sounded too good to be true, however, and as I noted above, I wondered what else was on his record.

Sure enough, the Wikipedia page for Holland (see, I admitted that this is not an exercise in historical research!) includes a section for "U.S. senator" that mentions the 24th Amendment but also states that Holland, "along with all other senators from the former Confederate states (except Lyndon B. Johnson, Estes Kefauver, and Albert Gore, Sr.), signed the 1956 'Southern Manifesto', which condemned the Supreme Court ruling in Brown v. Board of Education (1954), declaring that segregation of public schools was unconstitutional, and promised to resist its implementation."
 
Ick.  Turning to the page for the Southern Manifesto, we learn that "[t]he Manifesto was drafted to counter the landmark Supreme Court 1954 ruling Brown v. Board of Education, which determined that segregation of public schools was unconstitutional. School segregation laws were some of the most enduring and best-known of the Jim Crow laws that characterized the Southern United States at the time."
 
Intriguingly, "Senator J. William Fulbright of Arkansas had worked behind the scenes to tone down the original harsh draft. The final version did not pledge to nullify the Brown decision nor did it support extralegal resistance to desegregation. Instead, it was mostly a states' rights attack against the judicial branch for overstepping its role."  On the other hand, "Senators led the opposition [to Brown], with Strom Thurmond writing the initial draft and Richard Russell the final version."  Those are certainly two men with whom one would not want to be associated in history!
 
Interestingly, the other Florida politician cited in our amicus brief in Jones, Rep. Dante Fascell, was one of the few Southern Democrats who did not sign the manifesto, even though "[t]his refusal earned them the enmity for a time of their colleagues who signed."  Fascell, then, was on the right side of voting rights and at least not loudly and publicly on the wrong side of school desegregation.  (Without knowing more, I cannot characterize Fascell as actually being on the right side of history re Brown.)

Holland, however, presents a sharp contrast.  In 1956, ten years into his Senate career (hardly a rookie, in other words), he signed on with the segregationist Dixiecrats to push back against the Supreme Court's unanimous civil rights triumph.  Prior to that time, however, he had already begun to push for what became the 24th Amendment, and he continued to do so until succeeding in 1962.  Given that the amendment passed the Senate with 77 votes, it seems unlikely that Holland was the only one of the old-style Southern Democrats (who, along with their political heirs, switched en masse to the Republican Party in the 1970's and 1980's) who voted for the 24th Amendment.  (My online attempts to answer this question were unsuccessful.)

Scholars of this era might have a ready answer to this question of the split on voting rights versus school desegregation, so if anyone with such knowledge happens upon this column, please enlighten me in the Comments.  But again, my interest in this is not in the first instance a matter of historical research but a question of politics -- then and now.  I have recently argued (here, here, and here) that there is every good reason to change the names of buildings, streets, and even cities when we conclude that the person who has been thus immortalized deserves no such honor.

In those columns, the difficult question was what to do about politicians of the founding era, like Washington and Jefferson, who owned slaves.  I understand Joe Biden's effort to draw a clean line -- Confederate generals and politicians were by definition traitors, thus deserving scorn rather than honor, but Washington and Jefferson did so much good that we should ignore the bad -- even though I disagree with him.

But what do we do about people like Holland, Thurmond, and Russell (an extremely powerful segregationist whose name is on one of the three Senate Office Buildings in D.C., currently the object of a proposal to change the name to honor John McCain)?  They neither took up arms against the union nor owned slaves.  That is not to say that they would or would not have done any of those things if the opportunities had arisen, but their actions fall far short of those of Jefferson Davis or Robert E. Lee -- and Washington and Jefferson, at least when it comes to owning human beings.

Moreover, Holland specifically did something very good when it came to civil rights, given how important poll taxes were to supporting the system of white supremacy.  Holland's good thing is not as good as the big pluses on Washington's and Jefferson's resumes, but neither were his minuses so very, very awful.  Even so, I would have no reason to say, "Well, the guy didn't own slaves (and might not have wanted to), so let's overlook his efforts to stymie racial desegregation."  Holland also voted against the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

This is all very uncomfortable to a lot of people.  In the end, however, it would make little sense to say that one good thing -- even one pretty important good thing -- is enough to save the historical reputation of a defender of Jim Crow.  I do not know whether this issue will come up any time soon at UF -- although I will be surprised if it does not -- but if it does, it will be interesting to see whether anyone is willing to defend Holland's overall record as a politician.  Public naming is an act of honor, not a matter of saying: "Well, he didn't do everything wrong."

4 comments:

Coyote said...

In regards to poll taxes, didn't they keep some poor Southern whites away from the polls as well? If so, this could help explain why some white Southern politicians supported their abolition even while supporting other Jim Crow measures--specifically, they might have believed that, in this specific context, allowing more (poor) blacks to vote is an acceptable price for allowing more (poor) whites to vote.

Am I onto something here or am I way off here?

Coyote said...

It's also worth noting that the 24th Amendment only appears to prohibit poll taxes in federal US elections--so, not in US state elections. Maybe there would have been more opposition to the 24th Amendment among Southern whites had it also applied to poll taxes in US state elections.

Neil H. Buchanan said...

Thank you, Coyote. Your hypothesis in your first Comment is intriguing. Re your second Comment, you're right that the 24th applies only to federal elections, but the Supreme Court in 1966 applied the 14th Amendment to invalidate state-level poll taxes, too. As I've dug a bit more, this has become an even more interesting topic, about which I'll probably write at least once more. The facts that I'm turning up make Sen. Holland's actions look less grand -- not bad, but not as politically courageous as I first imagined.

CJColucci said...

When I took my only tax course, in 1980, Freeland was the principal (or at least first-named) author of my casebook. I have forgotten most of what I learned, except the feeling that tax law was like a balloon, and if you pushed in at Point A, Point B would bulge out.
I've long thought that law schools should offer a course for people who are not aiming at becoming tax lawyers called A Little More Tax: a smattering of corporate tax, estate tax, and, maybe general tax economics and policy, so non-specialists could recognize potential tax issues and refer (cross-sell) their clients to their partners down the hall. Maybe there is something like the old Chirelstein book on these topics?