Ariela Gross: Race, Law and Conservatism in America





[Gross is the John B. and Alice R. Sharp Professor of Law and History at the University of Southern California.]

Are conservatives racist? A number of political writers have complained recently that conservatives are being unfairly painted as racist because of the activities of a fringe of Tea Party activists, and that conservatism has a proud history of support for civil rights. Ross Douthat recently complained in the pages of the New York Times that the only reason we are seeing “white grievance” expressing itself in conservative politics is because elite institutions of higher education have discriminated against lower-class whites out of cultural bias. (See my fellow blogger Luis Fuente-Rohwer’s response here.)

I won’t respond directly to this improbable claim, but I am interested in the historical connection between race and the rise of the conservative movement in the U.S. In recent years, there has been an outpouring of historical writing on the rise of the right wing in American politics. At the last Organization of American Historians Annual Meeting, a panel was held on how historians should study conservatism “now that studying the Right is trendy.” Historians have explored the rise of anti-Communism, the John Birch Society, Presidential politics, the Goldwater campaign, the religious Right, the old and the New Right, and Ronald Reagan in California. Likewise, legal scholars like Ann Southworth have begun to write the history of the rise of legal conservatism, focusing on right-wing public interest lawyers, the Federalist Society, and the Olin Foundation’s sponsorship of the law-and-economics movement at law schools. Yet these histories of conservative movements have had surprisingly little to say about race, except as a “wedge issue” in electoral politics.

It may seem strange to suggest that there has been little attention to race and conservatism when the reaction to the civil rights movement has received so much historiographic attention. But it’s a remarkably regionalized – even segregated – literature on “massive resistance” in the South. According to the standard story, a Southern backlash to the civil rights movement fueled the electoral shift from a solid white South for the Democrats to the Republican Party, as well as the “Southernization” of American politics, as race has been a reliable “wedge issue” for the Republicans to pry white working-class voters away from the Democratic Party.

Yet, as a new generation of historians of racial politics in the South as well as the urban North (especially Joe Crespino, Matt Lassiter, and Tom Sugrue) have shown, the South is not “another country.” The politics of nonviolent – and legal – backlash against African Americans moving into white neighborhoods and public spaces was a national phenomenon, tied centrally to the rise of the “New Right” and the conservative legal movement. Moreover, conservatives in law and in politics successfully drew on historical narratives about race that tell reassuring stories about the path from slavery to freedom, what Nancy McLean has called “Neoconfederate” stories.

“Color-blind constitutionalism,” which has been identified and critiqued by a generation of critical race theorists, has a history in post-War America. Conservatives appropriated this once-liberal ideology not only through legal opinion-writing, but drawing on the narratives generated by grass-roots movements of opposition to integration, especially in housing and schools – narratives about “freedom of choice,” meritocratic individualism, and religious freedom.

I’ve been thinking about this a lot as I’m in the early stages of a research project on the history of race, law and conservatism in the United States from the 1960s through the 1990s, bringing together the legal history of color-blind constitutionalism with the social history of grass-roots conservative movements that organized to oppose the integration of African Americans in housing, schools, and public life in American cities. Please send me your ideas! I am curious what legal historians think about the current politics of race and its connections to a longer post-civil rights era history.




comments powered by Disqus

Subscribe to our mailing list