Saturday, September 8, 2012

The Survey: Culture & Rights in the Post-Brown Era

As southern intellectuals like the Fugitives began to build a case for the particularity of southern culture, so too did they build a cultural defense for racial segregation.  This, ultimately, was Robert Penn Warren's goal in his 1929 essay "The Briar Patch," an essay that extolled segregation as a mutually acceptable arrangement that preserved the cultural identities of both races. As I show in my new project, Warren and other writers would continue to advance this position, in increasingly complex iterations, through the 1950s and 60s -- a position that had a particularly virulent corollary in southern state law.  Following Brown, for example, segregationists worked diligently to undermine black rights claims by advancing the argument that segregation rested not on arbitrary classifications of color but substantive differences in racial "culture." As I show in a recent article, however, this proved a delicate project - both because racial culture was an arbitrary construct and also because segregationists who went down this path found themselves taking up the Fugitives' complex project of countering northern stereotypes of white southerners as violent, backward, and philistine, meanwhile battling those very white southerners who actively perpetuated such stereotypes -- a struggle that bled onto the terrain of criminal law, family law, and the First Amendment (see Anders Walker, A Horrible Fascination: Segregation, Obscenity & the Cultural Contingency of Rights, 89 WASH. U. L. REV. 1017 (2012)).  A recent book that has proven particularly helpful in thinking through some of the ramifications of these cultural politics in the post-Brown South is Serena Mayeri's Reasoning From Race: Feminism, Law, & the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011). A must-read for anyone who teaches Equal Protection in Con Law, Mayeri challenges the way that the relationship between racial classifications and gender classifications are often portrayed, both in Con Law surveys and legal history source books.  Take, for example, HFE, which bridges civil rights and women's rights by simply stating that "[w]omen learned from the civil rights movement's fight against race-based discrimination," and then includes excerpts from Griswold and Roe, neither of which originated in the South (HFE, p. 519-525).  Mayeri, by contrast, demonstrates not simply how women learned from civil rights activists, but also how cultural attacks on black rights, beginning with attacks on black unwed mothers and illegitimacy in states like Mississippi, led attorneys like Ruth Bader Ginsburg and Wendy Webster Williams to break "new ground" by linking "illegitimacy-based classifications with both race and sex discrimination." (Mayeri, p. 161)  The battle over illegitimacy in the South would continue, leading to Supreme Court cases like Levy v. Louisiana, 391 U.S. 68 (1968) and King v. Smith, 392 U.S. 309 (1968), both of which pointed to new directions in equal protection jurisprudence.

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