Markham Shaw Pyle is a published legal, political, Congressional, diplomatic, and cultural historian, and the author of “Fools, Drunks, and the United States”: August 12, 1941; Benevolent Designs: The Countess and the General: George Washington, Selina Countess of Huntingdon, their correspondence, & the evangelizing of America; “Roses and Bayonets: A theory of civil disobedience;” and the medical memoir, Tonight at the Morpheum: A Hospital Farce in Three Acts. With the UK historian GMW Wemyss, he is the author of, inter alia, ’37: The year of portent; When That Great Ship Went Down: The Legal and Political Repercussions of the Loss of RMS Titanic; and the forthcoming The Crisis: 1914; and co-editor and -annotator of The Complete Mowgli Stories, Duly Annotated; The Annotated Wind in the Willows, for Adults and Sensible Children (or, possibly, Children and Sensible Adults); and a forthcoming annotated edition of Robert Louis Stevenson’s Kidnapped.

He holds his BA (Politics and Philosophy (Special Hons.)) and his JD from Washington and Lee.

Executive summary / summary execution / summary judgment

Quidquid præcipies, esto brevis.

– Horace

SLAVERY, RACISM, AND that narcissism of small differences which is the twisted soul of all ethnic, national, and religious prejudice, have always been with us as a species, as a form of original sin. As Horace also said, naturam expelles furca, tamen usque recurret: you may drive out nature with a pitchfork, but she always keeps shoving her way back in. The work of repentance and reformation is never fully done, and must be done again in each new generation. Laws can change, but the darkness of the human heart, which is not divided by ethnic origin or geographic location, but runs down the broad middle of every human soul, must always be fought against. The price of Liberty is eternal vigilance.

The question is, Who is to carry on that fight, and keep that vigil, that unsleeping watch and ward?

Nations can fall. Armies can triumph … and suffer defeat. The oppressed can be liberated. Constitutions can be amended and laws passed. Churches can preach. Great men can set examples. Business and organized labor can join hands to oppose evil. Social pressure can be exerted.

These are necessary. They are rarely sufficient in themselves. And sometimes, all of these institutions ally themselves, not with virtue, but with a vice so engrained and so fashionable as not to be recognized as an evil.

Gibbon said of history that it “is, indeed, little more than the register of the crimes, follies, and misfortunes of mankind.” It must be learned from lest, as Santayana said, it be repeated. Even today, in our own times, an illiberal populism opposed to the principles of the founding: which, in America, is what conservatives are meant to conserve: has joined hands with a separatism claiming the mantle of wokeness to resegregate housing and education and to institute anew racially discriminatory practices prohibited by law, in a pincer movement from two fundamentally opposed evils, operating on fundamentally opposed principles. They have formed a domestic Molotov-Ribbentrop Pact.

Britain and America, in the 19^th Century, did two unprecedented things. Both expended blood and treasure untold in abolishing slavery and putting down the international slave trade. Sadly, in both countries, they also preserved the unique habit of Western Europe and the colonies, arising from the Transatlantic slave trade, of engraining an association between skin color and past or present slavery, of servile status, from which modern racism arose.

Laws and governance and constitutions can be changed; and the oppressed, unshackled. But the war for hearts and minds is never-ending.

When, going on eight years ago, the Supreme Court held in Shelby County v. Holder that the purposes of the Voting Rights Act had been so far achieved that its pre-clearance regime was no longer constitutionally justified, this was not because education, religion, social pressure, or public prosecution had sufficed to make those changes. To the contrary: these had failed from 1865 to 1964, and been inadequate from 1964 to 2013. Until the 1950s and 1960s, Congress and the Supreme Court had failed of their duties, in the teeth of the Reconstruction Amendments to the Constitution. Business, labor, the schools, the churches, and civil society, had likewise failed. For fifty years thereafter, civil society continued to fail. And it is a frail reed even now.

None of these bulwarks had kept Jewish Americans from being discriminated against and sometimes lynched. None had adequately defended the Native Americans against dispossession and genocide. All had failed when faced with the moral challenges of the Chinese Exclusion Act and the persecution of Japanese Americans after Pearl Harbor. None had operated to prevent segregation and discrimination and exploitation under color of law against Hispanic Americans. And none had prevented strange fruit hanging from the limbs of lynching-trees in the South, or sufficed to protect the African Americans for whose freedom men had fought and died – and who in turn fought and died for a country which did not grant them the basic rights and dignities of the citizenship which was theirs by law.

These Americans: Black, Hispanic, Japanese, Chinese, Jewish, and even poor whites: were “despised and rejected of men” (Isaiah, liii.3), and not to the magnificent setting of Handel in Messiah. They were not without agency. They fought for themselves and their rights, and for their country, however unrequited their love of their country was. Had their persecutors been amenable to reason or to example, the exploits of 442 Regimental Combat Team in the European theater, the most decorated unit for its size in the history of warfare, composed almost exclusively of Nisei; the work of the Native American Code-Talkers in both world wars; the Nobel prizes racked up by Jewish Americans and Chinese Americans; and such monumental heroism as earned Texans Roy Benavidez the Medal of Honor and Dorie Miller the Navy Cross, should have persuaded their detractors that their prejudices were irrational, untenable, despicable, and contemptible.

But racism, like the concept of race itself, is irrational, and rational people do not hold it. Even the efforts of great Texas-born presidents such as Ike and LBJ, whether by sending in the 101^st Airborne to desegregate a school or ramming the Civil Rights Acts through a hostile Congress, can do only so much.

The battle is fought and won in the trenches. And it is fought and won for the despised and disregarded by that despised and disregarded class, lawyers, fighting with the weapons of the law. The private attorney for a private litigant may be, to the layman’s eye, an unimpressive and faintly ridiculous figure viewed with suspicion. But a private attorney for a private litigant bringing a non-frivolous civil rights action is vindicating, not only the interests of his client, which is his duty and a thing laudable in itself, but the purposes of Congress and the better angels of our nature, as a private attorney general. When a private attorney for a private litigant brings a non-frivolous civil rights action, she is engaged, as a private attorney general, in making good what Dr. King called the promissory note this nation issued at its founding, and redeeming the bounced check we as a nation wrote generations before. Counsel in such cases is doing what the nation and its government ought to have done and sometimes even yet fails to do. This is a task worthy of praise and honor.

Chesterton’s Fence

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

— GK Chesterton

SEVEN YEARS AGO, in Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court struck down section 4(b) of the Voting Rights Act of 1965, on the grounds that it had worked, and things had so changed in the country that the Act’s enforcement regime was no longer necessary or constitutionally justified. Of course, there was resistance to this holding: few things are as permanent as a temporary measure, and bureaucrats do not like giving up powers awarded them for emergency purposes, no matter how long ago the emergency has passed. The Trading With the Enemy Act, 50 U.S. Code § 4301 et sequitur, was directed against the Kaiser’s Germany and its reluctant allies in 1917, when the US finally decided to join in the First World War: it is still on the books, and there is still a bureaucracy devoted to enforcing it. Even in times of peace, an enemy can always be found.

The Shadow of the Past

… do not be too eager to deal out death in judgement. For even the very wise cannot see all ends….

– JRRT, LoTR

THE COURT MAY well have been right. But it must not be forgotten that it took legislation and enforcement to change things in the country: mere social pressure was not doing the job. Racism and then Jim Crow had survived the defeat of the Confederate States of America and the formal end of slavery; Reconstruction; and the lessons, evident loyalty, military heroism, and example of two world wars. It persisted for a century after the War, until Congress took action. In many ways, after 1865, slavery was still running its old business on new premises under a new company name, to trade upon the credulity of the public.

Education failed. Religion failed. Even in churches which had a national or international basis, governed by bishops, in which local social custom ought not to have mattered, Jim Crow persisted. On the Eighth Sunday after Appomattox, at Saint Paul’s Episcopal Church in Richmond, Virginia, the congregation sat frozen and the rector stood still as a stock when a well-dressed free African American man left his segregated seating, came forward, and prepared to receive communion at the altar rail. Time started again when a grey-suited – white – gentleman in his late 50s, white-haired and white-bearded from the strain of war, quietly went up to the communion rail and joined the African American communicant in expectation of receiving the sacrament. Yet not even the example of RE Lee sufficed to change the mores of the South, even in the Episcopal Church; and was swiftly explained away by others. Segregated churches and parishes persisted, as they did in the Roman Catholic communion, where, notably in South Texas, racial discrimination was unofficially extended against Hispanics as well as Blacks. Other denominations, such as the Methodists and the Baptists, which had split into Northern and Southern branches during the War or before it over the issue of slavery, did likewise. More fundamentalist denominations, where the call of a pastor was an entirely local matter, were even worse, in their little asbestos-shingle or tin tabernacles, and remained so well into the 1960s in what the great Texas writer John Graves called the crabgrass, dirt-road fringes of cities. And this was certainly true of rural churches: the great Texas writer AC Greene recalled one adamantly segregated country church in West Texas, in a denomination where one man or a group of trustees owned title to the church building and its land, there being no parish organization and no diocese, which was curiously integrated to the extent of keeping a seat of honor for one black man and his wife. That man was “80 John” Wallace, the former slave turned cowboy turned millionaire rancher who, alongside Bose Ikard, was one of the models for Joshua Deets in McMurtry’s Lonesome Dove. He sat there in the church because he’d paid for the church outright when the poor white members of the white branch of his segregated denomination had asked him for a contribution to the building fund.

The cowboy successes of “80 John” Wallace and Charlie Goodnight’s right-hand man Bose Ikard, of Nat Love and Bill Pickett, were, however, uncommon. And everything conspired to keep them so.

Scouts and mountain men such as Jim “Bloody Arm” Beckwourth and Edward Rose, Samuel Fields of Deadwood and the cowboy archaeologist and historian George McJunkin, discoverer of the Folsom Site that revolutionized North American prehistory, were written out of the common record of American history for decades: because of their race.

Nor were they alone: Hispanics, Chinese Americans, Japanese Americans, Native Americans, and Jews were also discriminated against both by law and by custom. Even where the law did not discriminate and was not intended to discriminate against them in the way in which it discriminated against African Americans, it tended to be applied to them.

American Jews were discriminated against, exploited, made scapegoats, denied housing, barred from hotels and restaurants, and occasionally lynched, just like African Americans. North and South, they found deed-restricted houses, and public accommodations which declared themselves “Restricted,” “Gentiles Only,” “We Cannot Cater to Persons with Dietary Restrictions.” Some were more forthright: “No Dogs or Jews Allowed.” There were clubs which would not accept Groucho Marx as a member when he was one of the most popular and beloved men in America. (Not that Groucho was much for clubs: he in time joined one which did not have these restrictions, and then jokingly resigned, spouting his famous quip, “I decline to belong to any club that would have me as a member.”)

Arthur Godfrey, who was, in the 1940s and ’50s, a hugely popular broadcaster with a reputation for geniality, began his descent into disgrace by firing Julius LaRosa, one of his cast, live on the air in a fit of pique and hitherto concealed megalomania; it made it all too easy to believe by the end of his fall that Godfrey had been involved in the “restricted” practices of the Kenilworth Hotel in Florida, which he part owned, although in fact he had apparently demand these cease as a condition of his investing.

In 1915, Leo Frank was wrongly convicted of the murder of a young girl in Georgia and lynched by a mob … which included a former governor of that state, other politicians, lawyers, and local sheriffs.

America is a land rich in natural resources. One of these is a deep and inexhaustible vein of irony. Georgia both judicially and informally lynched Leo Frank because he was a Jew and because he was seen as a damnyankee, a rich industrialist “battening” upon the South, a “Shylock.” He was Jewish; he had been raised in New York; but he was by birth a Texan, born in Cuero, and, rather than a rich industrialist, was a factory executive, working as a middle manager, a company man. And he was convicted based in part upon the rather contradictory and self-contradicting testimony of an African American, Jim Conley, who rightly feared that he was the other prime suspect if Leo Frank escaped conviction. No one can blame Jim Conley for saying whatever he felt necessary to escape the usual fate of a black man accused of crime against a white woman in the South. But it is testament to how determined the prosecution was to secure a politically popular conviction that it was willing to rest its case on the sort of testimony which prosecutors of the time universally considered, in all other circumstances, worthless: the testimony of a black man in a white court.

In 1939, the Motor Vessel Saint Louis sailed from Hitler’s Germany for the New World, with 937 refugees, 936 of whom were Jewish. Cuba would not let them land. Canada would not let them land. And at the personal directive of President Franklin Delano Roosevelt, the United States would not let them land, either. They traveled back across the Atlantic, and many of them found refuge in Britain, France, Belgium, and the Netherlands: where, other than in Churchill’s unconquered Britain, they were rounded up after the fall of France and the Low Countries, and up to a quarter of them perished in the death camps.

Jews weren’t “white” enough.

For every Sam Houston, The Raven, blood-brother to the Cherokee, there was an Andrew Jackson. Or a few thousand. A century after the Trail of Tears, Virginia, led by Progressives, followed the lead of other states and passed its Racial Integrity Act, classifying people in accordance with the “one-drop rule,” and declaring that anyone with 1/64^th “non-white” ancestry – including Native American ancestry – to be “colored” for purposes of prohibited intermarriage and of segregation. The rabid racists who proposed the bill which became this act wished to exclude anyone with a “single drop” of “non-white blood,” and specifically targeted those with Native American ancestry; but the General Assembly recoiled from this, as it should have meant that numerous Blands, Bollings, Burwells, Carters, Carys, Dandridges, Eppeses, Fairfaxes, Fitzhughs, Harrisons, Jeffersons, Lees, Markhams, Marshalls, Pages, Randolphs, Rolfes, Taliaferros, and Washingtons were suddenly relegated by law to using the “colored” water fountains and riding in the back of the bus. America is a land rich in natural resources. One of these is a deep and inexhaustible vein of irony. The General Assembly’s adoption of what was called “the Pocahontas Exception” is one of those ironies.

That was a small and purely self-interested victory to set against forced removals, reservations, massacres, segregation, discrimination, and several determined attempts at outright genocide.

Until 1924, Japanese immigrants could not be naturalized as American citizens. There were restrictions upon their ownership of land. Their native-born sons and daughters, however, had birthright US citizenship: these were the Nisei. After the attack on Pearl Harbor on December 7, 1941, Japanese Americans were … infamously … rounded up and put in what were, quite openly, concentration camps: to the vociferous approval of that later bête-noire of American conservatives, the future liberal Chief Justice Earl Warren; of the conscientiously liberal, New Deal Washington Post and LA Times; and of almost every pundit in the country, and most Americans: all by the orders of that Progressive hero, FDR. Those orders were rescinded only the day before the Supreme Court issued its opinions in Korematsu v. United States, 323 U.S. 214 (1944), and Ex parte Mitsuye Endo, 323 U.S. 283 (1944). There is a certain amount of confusion and outright mythology which has grown up around these two opinions. Korematsu held only that the executive orders, in wartime, removing civilians from zones at military risk, were not unconstitutional on their face, as such. Endo held that loyal American citizens could not be subject to such detentions. Endo was a unanimous decision. Korematsu was decided by a 5 – 4 majority, with the Court’s majority opinion being written by Justice Hugo Black: the first of FDR’s nominees to the Supreme Court, a liberal icon, a former Democratic US Senator from Alabama, and the man whose rise in Alabama politics was owed in some part to his having been, before going into the Senate, a Klansman. And not even one out of principle, but for political advantage, going along to get along.

There were Americans in the Second World War willing to engage in treason or espionage on behalf of the Axis: a couple of white racists, and a passel of blond, blue-eyed, boy-next-door German Americans and Scandinavian Americans from the Midwest. The Nisei, by contrast, though their parents and siblings were, and many of them had been, in the camps, proved their loyalty to the United States – despite America’s treatment of them – in blood. (As the great African American boxer, Joe Louis, said at the same time, there might be a lot wrong with this country, but it was nothing Hitler was going to fix.) The 442nd Regimental Combat Team, composed almost exclusively of Japanese Americans, in the European Theater in World War Two, became the most decorated unit for its size in US military history: earning more than 18,000 awards in less than two years, including more than 4,000 Purple Hearts and 4,000 Bronze Star Medals; being awarded eight Presidential Unit Citations – five of these in a single month –; and having twenty-one of its members awarded the Medal of Honor. Years later – typically – Congress approved the granting of the Congressional Gold Medal to the 442nd RCT and associated units who served with them during World War II, and in 2012, all surviving members were made chevaliers of the French Légion d’Honneur. Among the unit’s exploits was the rescue of the Lost Battalion: 1st Battalion, 141st Infantry, 36th Infantry Division, originally a unit of the Texas National Guard. In 1962, Governor John B. Connally made the 442 RCT honorary Texans for that.

Ironically, the mid-20^th-Century wave of Hispanic immigration into Alta California, Arizona, and Nevada, vastly reinforcing and then outnumbering and supplanting the old Californio population, was begun owing to the mass incarceration of Japanese Americans, whose absence from the Military Exclusion Zone created a huge agricultural labor shortage.

Chinese Americans were subject to the Chinese Exclusion Acts notwithstanding the Supreme Court’s decision on birthright citizenship in United States v. Wong Kim Ark, 169 U.S. 649 (1898). California’s state constitution of 1879 forbade the employment of Chinese people by state and local governments, and by businesses incorporated in California (now that the railroads were built and the Chinese were surplus to requirements), and green-lit the forcible local removal of Chinese people from and by any local government in California which chose to do so. Chinese Americans were subjected to segregated schooling just as African Americans were, and were subject to “Yellow Peril” race riots and persecution, with governmental blessing. Even the lone dissenter in Plessy v. Ferguson, 163 U.S. 537 (1896), Justice Harlan, wrote that there was one “race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” The only thing that got rid of the Chinese Exclusion Acts was, ironically, the warmongering of Imperial Japan: the Nationalist Chinese were America’s allies in World War Two, with Imperial Japan as their common enemy, and, in 1943, the Exclusion Acts were finally repealed.

Hispanic Americans were not the explicit targets of the racial discrimination, enshrined in law, directed against African Americans. But definitions of color were infinitely elastic when politics so dictated. Tejano citizens were often included in the discrimination and segregation of the time: partly because they were not visibly “white” in the Anglo-Saxon sense; partly because of old, festering enmities dating from the Texas Revolution; and partly because they were largely, and were always presumed to be, Roman Catholic. The revived KKK of the 1920s directed its hatreds towards Jews and Catholics as well as African Americans, with an evangelical fervor. In Texas, the “white primary” system, and segregated schooling, all put through by the only political party in Texas, the Democrats, disenfranchised and segregated Mexican American Texans as well as African Americans. Separate always meant unequal. At the peak of its political power, the Klan elected a US Senator from Texas, Earle Mayfield, partly as the Prohibition candidate; controlled the city governments of Dallas, Fort Worth, and Wichita Falls; and probably had a majority of the Texas legislature in its pocket. Its political fall was swift and sudden: it ran a candidate against “Ma” Ferguson for governor and got its clock cleaned by the very populist, Protestant, rural voters it was counting on; and its attempt to have a huge rally outside Waco, in which some of the Kluxers included serving Waco policemen, ran into McLennan County Sheriff Bob Buchanan and his deputy “Red” Burton, the future Texas Ranger and member of the Texas Ranger Hall of Fame. The Klan got its pointy, sheet-wearing … head … handed to it.

Yet the prejudice, and its legal expression, continued. It was “Ma” Ferguson who, opposing bilingual education plans in the Valley, waved a bible and declared, “Iffen th’ Anglish language was good enough fer Jeeeesus Chriiiiz, hit’s good enough fer the school-childer’n of Tex-iss.”

The prejudice, and its legal expression, continued, outliving the Klan. In a country as old as England, most cities, towns, and villages, have very old names, mostly geographic; but sometimes towns and villages have compound names, with the suffix relating to who used to own the place, as its feudal lord. Many surnames are locational: they show a shared place of origin for families who are not related by blood but share a surname. Every Sampford is named for its firm, sandy ford, a good crossing place. But Sampford Brett was named for the lords of its manor, the Bretts; Sampford Arundel, for its village-owning Arundels, progenitors of the Dukes of Norfolk; Sampford Spiney for its manorial lords the Spineys; Sampford Courtenay for its lords, the Earls of Devon; Sampford Peverell for the Peverells who owned it, kinsmen and right-hand men to William the Conqueror…. To be or to be descended of a Spiney, a Brett, a Courtenay, a Fitzalan-Arundell, a Peverel, is even now pretty hot stuff. Ours is a younger country, and, rather than surnames taken from towns and villages, we run to towns and villages which bear the surname of the local founder. You might think that to be a Benavidez, from the town of Benavides, descended of the founder of the town of Benavides, should be similarly impressive. It is; but it did not impress many people only seventy years ago.

Raul Perez Benavidez – Roy Benavidez – was born in Cuero in 1935 to an impoverished family, however distinguished; and raised in El Campo by his grandparents from the age of seven after becoming an orphan. He enlisted in 1952, four years after Harry Truman desegregated the army, and served with distinction in Korea. He then trained for and was accepted into Special Forces, and served in Vietnam. There, in 1965, he stepped on a landmine and was told he’d never walk again. He disagreed, and ran his own unsanctioned exercise and rehab program in the middle of the night in an Army hospital, unknown to his doctors. He won. Returning to duty in Vietnam, in 1968, Roy Benavidez engaged in close combat for six hours in a manner which resounds in the annals of military history, at one point being bayoneted and killing his enemy with a knife in response. When he was medevacked back to base, after medical evaluation, he was declared dead and they were putting him in a body bag when he spit in the doctor’s face to let him know he was alive.

I can do no better than to quote his Medal of Honor citation, in full:

Master Sergeant (then Staff Sergeant) Roy P. BENAVIDEZ United States Army, distinguished himself by a series of daring and extremely valorous actions on 2 May 1968 while assigned to Detachment B56, 5th Special Forces Group (Airborne), 1st Special Forces, Republic of Vietnam.

On the morning of 2 May 1968, a 12-man Special Forces Reconnaissance Team was inserted by helicopters of the 240th Assault Helicopter Company in a dense jungle area west of Loc Ninh, Vietnam to gather intelligence information about confirmed large-scale enemy activity. This area was controlled and routinely patrolled by the North Vietnamese Army. After a short period of time on the ground, the team met heavy enemy resistance, and requested emergency extraction. Three helicopters attempted extraction, but were unable to land due to intense enemy small arms and anti-aircraft fire.

Sergeant BENAVIDEZ was at the Forward Operating Base in Loc Ninh monitoring the operation by radio when these helicopters, of the 240th Assault Helicopter Company, returned to off-load wounded crew members and to assess aircraft damage. Sergeant BENAVIDEZ voluntarily boarded a returning aircraft to assist in another extraction attempt. Realizing that all the team members were either dead or wounded and unable to move to the pickup zone, he directed the aircraft to a nearby clearing where he jumped from the hovering helicopter, and ran approximately 75 meters under withering small arms fire to the crippled team.

Prior to reaching the team’s position he was wounded in his right leg, face, and head. Despite these painful injuries, he took charge, repositioning the team members and directing their fire to facilitate the landing of an extraction aircraft, and the loading of wounded and dead team members. He then threw smoke canisters to direct the aircraft to the team’s position. Despite his severe wounds and under intense enemy fire, he carried and dragged half of the wounded team members to the awaiting aircraft. He then provided protective fire by running alongside the aircraft as it moved to pick up the remaining team members. As the enemy’s fire intensified, he hurried to recover the body and classified documents on the dead team leader.

When he reached the leader’s body, Sergeant BENAVIDEZ was severely wounded by small arms fire in the abdomen and grenade fragments in his back. At nearly the same moment, the aircraft pilot was mortally wounded, and his helicopter crashed. Although in extremely critical condition due to his multiple wounds, Sergeant BENAVIDEZ secured the classified documents and made his way back to the wreckage, where he aided the wounded out of the overturned aircraft, and gathered the stunned survivors into a defensive perimeter. Under increasing enemy automatic weapons and grenade fire, he moved around the perimeter distributing water and ammunition to his weary men, reinstilling in them a will to live and fight. Facing a buildup of enemy opposition with a beleaguered team, Sergeant BENAVIDEZ mustered his strength, began calling in tactical air strikes and directed the fire from supporting gunships to suppress the enemy’s fire and so permit another extraction attempt.

He was wounded again in his thigh by small arms fire while administering first aid to a wounded team member just before another extraction helicopter was able to land. His indomitable spirit kept him going as he began to ferry his comrades to the craft. On his second trip with the wounded, he was clubbed from behind by an enemy soldier. In the ensuing hand-to-hand combat, he sustained additional wounds to his head and arms before killing his adversary. He then continued under devastating fire to carry the wounded to the helicopter. Upon reaching the aircraft, he spotted and killed two enemy soldiers who were rushing the craft from an angle that prevented the aircraft door gunner from firing upon them. With little strength remaining, he made one last trip to the perimeter to ensure that all classified material had been collected or destroyed, and to bring in the remaining wounded.

Only then, in extremely serious condition from numerous wounds and loss of blood, did he allow himself to be pulled into the extraction aircraft. Sergeant BENAVIDEZ’ gallant choice to join voluntarily his comrades who were in critical straits, to expose himself constantly to withering enemy fire, and his refusal to be stopped despite numerous severe wounds, saved the lives of at least eight men. His fearless personal leadership, tenacious devotion to duty, and extremely valorous actions in the face of overwhelming odds were in keeping with the highest traditions of the military service, and reflect the utmost credit on him and the United States Army.

For much of his early life, and well into adulthood, Master Sergeant Roy Benavidez was subject to both legal and social discrimination on the basis of race, just like every other Hispanic American in the country.

Race is a construct: one constructed by racists. But like many other falsehoods, it has been a political and social fact.

Nowhere is this clearer than in the African American experience. This was the template for the racism, including that enshrined in law, suffered by Mexican Americans, Chinese Americans, Japanese Americans, and Jewish Americans … and sometimes by white Americans as well of the poorer classes, who shared much of their culture with their African American neighbors, class being more important than perceptions of race, and who were accordingly damned by the middle classes as a threat within, inherently likely to overthrow the racial hierarchy by mixing socially and sexually with “nonwhite” populations. The aspiring, uneasy, insecure middle-class Southern whites feared the existence of a common culture amongst the poor of both races, and feared that poor Southern whites, partners in an Afro-Saxon culture, might, if ever they realized that their interests were not served by having their African American neighbors there as someone to look down on and to give them a sensation of superiority, turn upon the middle classes.

The aspiring, uneasy, insecure middle-class Southern whites were “who were left standing” after the War: which had killed off or disenfranchised the old Southern upper classes, a class mostly apolitical, dutifully serving their states as they saw it but never happy about secession, and not given to fire-eating and demagoguery. These new men, the aspiring, uneasy, insecure middle-class Southern whites, “scientific” racists, Progressives, industry-minded, who took their notions from Prussia, might, every once in a hundred, have a planter ancestor, in a few cases, but always one who had been a new and self-made man; and were in the main the successors of the fire-eaters, the demagogues, the rabble-rousers, and the rabble they had roused. General Lee and his kind, the old Southern aristocrats, paternalistic and patronizing but kindly, were gone. Only the raw remained: the Theodore Bilbo and “Pitchfork Ben” Tillman politicians, red in tooth and claw. Teddy Roosevelt, whose mother was a Bulloch from Georgia, had Booker T. Washington to dinner at the White House; Woodrow Wilson, the Progressive hero of Princeton, resegregated the United States government.

In the end, they failed, the insecure racists of the middle classes (and the lower middle classes at that); and that despised and derided Afro-Saxon culture triumphed: as witness Skynyrd, The Allman Brothers, Molly Hatchet, and all Southern and swamp rock. But the bastards had their triumphs along the way, even against the poor whites: notably in Buck v. Bell, 274 U.S. 200 (1927), one of the most despicable opinions ever written by the Yankee patrician, Union veteran, Progressive idol, Justice Oliver Wendell Holmes, Jr. It was directed against what the eugenicist and bureaucrat Harry Hamilton Laughlin, another Ivy Leaguer and an allegedly expert witness in the trial, called “the shiftless, ignorant, and worthless class of anti-social whites of the South.” By “antisocial,” he meant, of course, insufficiently committed to racism. Alas, it took more than three generations for the country to say that these imbeciles were enough.

Dorie Miller was one of the very first heroes of the Second World war, and the first African American hero of that conflict, which should create so many African American heroes. He was born in Waco, some two years before the Kluxers tried to riot only to run into the buzzsaw of Sheriff Buchanan and Red Burton. He’d been given the name Doris when he was born, because the midwife was certain he’d be a girl. She was wrong. He grew up to be a high school fullback of impressive power, and in 1939 he joined the US Navy. But because he was Black, they made him a mess attendant, though they also gave him training in gunnery to go with it. There was no other place for a black sailor in the US Navy of 1939, even one who was the ship’s heavyweight boxing champion. On the other hand, none of his shipmates laughed at his name.

On Sunday morning, December 7, 1941, aboard USS West Virginia at anchor in Pearl Harbor, Dorie Miller had already served breakfast and was carrying linens to the laundry when the ship sounded “Battle Stations.” He raced for his assigned station, the magazine for one of the antiaircraft batteries sited amidships: and found that his station had been destroyed by a torpedo dropped by an aircraft of the Imperial Japanese Navy. That wasn’t going to stop him. He immediately reported that he was free for assignment to other duties. Lieutenant Commander Doir C. Johnson seized upon him and his powerful build for aid in moving the wounded captain on the bridge, Captain Mervyn Bennion, whose guts had been torn open by shrapnel. Destruction on the bridge meant that it was impossible to move the captain, and the captain was not inclined to move, though mortally wounded: he insisted upon remaining at his post until he died, directing the defense of his ship. Lieutenant Frederic H. White ordered Miller to help him and Ensign Victor Delano load the unmanned Number 1 and Number 2 Browning .50 caliber anti-aircraft machine guns aft of the conning tower, a weapons system new to Dorie Miller: which duty he performed; and, having helped load the weapons, he took over the gunnery of one gun of the battery.

When ammunition was exhausted, he returned to a renewed effort to move the dying captain from the bridge to a place of greater safety, and, having done so, rescued numerous shipmates before West Virginia sank.

The next year, he was promoted: to Mess Attendant First Class. A white survivor of the Pearl Harbor attack was given a commission. On May 27, 1942, Admiral Nimitz personally decorated his fellow Texan with the Navy Cross, noting that it was the first time that the Pacific Fleet had so honored an African American, and that he looked forward to its being the first of many. The citation for his award reads,

For distinguished devotion to duty, extraordinary courage and disregard for his own personal safety during the attack on the Fleet in Pearl Harbor, Territory of Hawaii, by Japanese forces on December 7, 1941. While at the side of his Captain on the bridge, Miller, despite enemy strafing and bombing and in the face of a serious fire, assisted in moving his Captain, who had been mortally wounded, to a place of greater safety, and later manned and operated a machine gun directed at enemy Japanese attacking aircraft until ordered to leave the bridge.

The Navy put him on a recruiting poster and sent him on a tour to help sell war bonds. He was promoted Cook First Class on June 1, 1943, when he reported to the escort carrier USS Liscome Bay: as high a rank as an African American could achieve in 1943 in the US Navy. On November 24th of that year, during the Battle of Makin Bay, he, with two thirds of the ship’s company of Liscome Bay, went down with his ship. His parents got the telegram that he was presumed dead on December 7, 1943: two years to the day after Pearl Harbor.

He was dead at 24, having lived and died, and given his life in the service of his country, in a segregated America which would not sit with him, eat with him, go to school with him, fight beside him, or allow him into a Texas voting booth. His actions, his heroism, were extraordinary; his life and circumstances were the universal experience of African Americans from their first forced arrival in this country to two decades after his death in battle.

Of Human Bondage

IX. OF ORIGINAL OR BIRTH-SIN

ORIGINAL Sin standeth not in the following of Adam, (as the Pelagians do vainly talk;) but it is the fault and corruption of the Nature of every man, that naturally is ingendered of the offspring of Adam; whereby man is very far gone from original righteousness, and is of his own nature inclined to evil, so that the flesh lusteth always contrary to the spirit; and therefore in every person born into this world, it deserveth God’s wrath and damnation….

– The Articles of Religion, the Church of England, 1562

SLAVERY, LIKE THE poor, we have had always with us: and in parts of the world, we yet do. Every human society which has not yet risen above what the distinguished British military historian Sir John Keegan called the military horizon, practices raiding. The Aztecs took captives for human sacrifice, in what they called their Flower Wars. Native Americans in what is now the United States and First Nations peoples in Canada regularly raided for slaves, from the Rio Grande to Canada’s Great Slave Lake. For a very long time, the slave trading capital of the ancient world was on Delos, one of the most sacred isles of Greece. Viking Dublin was its successor as the European slave market supreme. The great achievements and accomplishments of Imperial China, like that of ancient Egypt, and of most early societies, were built by slaves in their thousands. The very terms, “slave” and “slavery,” indicate one of the major sources of slaves throughout Europe, the oft-defeated Slavs. And Africa, North, South, East, and West, was full of slaves, of slavery, and of slavers: raiders and traders. There were slaves in Russia until early modern times and unfree serfs until the 1860s. Around the year 1000, the Bishop of Crediton, whose see is now the bishopric of Exeter, freed his slaves in his will: but most slaves in England, though not in Wales, in the late Anglo-Saxon period, were by then those to whom even the 13th Amendment should not apply: persons held to labor by judgment of a court. There were no jails or prisons in Anglo-Saxon England, nor was there the technology to build them: in consequence, those convicted of serious crimes were sentenced to enslavement with the local lord or, if their crimes were an offence against morals or canon law, to the local bishop. A murder, say, which could not be settled by the payment of wergild got you bound over for life to the local thegn. Incest, or raping a nun, got you sentenced to life without parole with the nearest bishop.

Racism and ethnic rivalry, the hatred of small differences in pigmentation, appearance, facial structure, language, or indeed religion, is, like the poor, always with us. Sadly, the law has too often followed these prejudices rather than its principles. Even where slavery had ceased to exist, it shapeshifted into other forms and its underlying prejudices remained. Under the Normans, slavery in England ceased in time to exist in name; but unfree peasants, serfs, bondmen, villeins, persisted, as thoroughly owned by the lords of the manor as any unfree ancestors ever were. The men who signed Magna Carta, like those who crafted and signed the Declaration and the Constitution in this country, held other human beings in legal subjection.

The African history of raiding and trading in slaves is an ancient one. There were upwards of 600,000 slaves in the Sokoto Caliphate. The Kings of Dahomey were the most notorious slave-takers, slavers, slave-sellers, and slave-traders in Africa. Muslim Arab traders had made the traditional cycle of raids and trades into an international commercial enterprise long before the Portuguese first nosed their way down the West African coast in their little ships. Zora Neale Hurston, in 1944, in “The Last Slave Ship,” detailed how this endemic cycle of petty warfare and slave-taking amongst the little African kingdoms created first the trans-Saharan and then the Transatlantic slave trade; and quoted the Jamaican proverb that these tit-for-tat wars were what brought the black man from Africa to the Caribbean and North American plantations. As late as the eve of the First World War, Istanbul had succeeded Delos and Dublin as the preeminent slave market of the Western world, far exceeding anything Charleston ever managed. In the early 1960s, the estimated slave population in Saudi Arabia was about 300,000 souls. Nor was it all one way: John Newton, when a slaver, was briefly enslaved by the West African slavers with whom he was dealing; the father of Olaudah Equiano, the great Black British abolitionist, was himself a slaver and slave-trader; the Barbary Corsairs raided for slaves around the Mediterranean and into the North Atlantic, including sacking and carrying off the entire population of Baltimore, Ireland, for which the city in Maryland is indirectly named. The US “Marine’s Hymn” begins by referring to American victories on the sites of two ancient centers of slavery: the halls of Montezuma and the shores of Tripoli.

When Britain and America abolished slavery – one by the stroke of a pen which, in that stroke, discarded a considerable percentage of the country’s wealth, and which was followed by further expenditures of blood and treasure in putting down the Atlantic slave trade by the open gunports of the Royal Navy and its West Africa squadron and by armed redcoats preventing the recapture of any slave who escaped to British territory and freedom anywhere in the Empire; the other by the bloodiest war in her history, which nearly bankrupted the South and came close to bankrupting the entire Union – they were at last living up to their principles, even as other societies lived down to theirs. And continued and continue to do so.

It was necessary. It was not sufficient. Unlike other societies which had engaged in this evil, western Europeans and their colonial offspring in the Americas had done something new in the world: they had made enslaved status, or its legacy, visible, linking it to color. Racism, therefore, became intertwined with the history of slavery, inextricably, and persisted and persists, after the legal abolition of slavery, in racial discrimination.

All the same, the British and the Americans had been willing to strip themselves of blood and treasure to eradicate slavery. It was necessary. It was not sufficient. The law had to be enforced in the face of and in opposition to an ancient human instinct for sin.

Abolition was necessary. It was not sufficient. Politicians, statesmen, and lawyers, like writers, have a fatal tendency to believe that to have said something is to have accomplished it. They had scotched the snake; they had not killed it, in the hearts and minds of men.

The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.

– John Philpot Curran, Master of the Rolls in Ireland, previously counsel for James Somerset in Somersett’s Case, Somerset v Stewart (1772) 98 ER 499, the case which found slavery illegal in Britain

Here, too, as always, the price of Liberty is eternal vigilance.

The Butcher’s Benevolence

It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages.

– Adam Smith, An Inquiry into the Nature & Causes of the Wealth of Nations, Vol 1

JACK KENNEDY WAS not a racist. Neither, really, unless perhaps by Eleanor’s standards, was FDR particularly one. Harry Truman certainly wasn’t. Ronald Reagan certainly was not, and even Dick Nixon could claim innocence on that score, if on no other. With the exception of perhaps the most evil man ever to occupy the White House heretofore, Woodrow Wilson, no president since 1860 has been a thoroughgoing, or even particularly notable, or often any sort of, racist.

For one thing, it’s no longer politically profitable. But even politics is a vocation sometimes capable of honor and virtue.

For decades after the end of Reconstruction, the Republican Party could agitate for an end to legalized racism and call itself, as it loved to do, the Party of Lincoln. They probably meant it. And, after the end of Reconstruction, there was no political downside to them in doing so: they had no constituency in the white South. Waving the bloody shirt galvanized their Northern voters against the white South, politically profitably. And although the GOP began as the party of the small farmer in the Free States, against the Big Business agribusiness of the Southern plantation economy, winning the War had thrown them into close association with Wall Street and Big Business: who, for purely economic reasons, opposed segregation and legalized racism: after all, it increased overhead and limited the pool of customers.

The resistance of southern streetcar companies to ordinances requiring them to segregate black passengers vividly illustrates how the market motivates businesses to avoid unfair discrimination. Before the segregation laws were enacted, most streetcar companies voluntarily segregated tobacco users, not black people. Nonsmokers of either race were free to ride where they wished, but smokers were relegated to the rear of the car or to the outside platform. The revenue gains from pleased nonsmokers apparently outweighed any losses from disgruntled smokers.

Streetcar companies refused, however, to discriminate against black people because separate cars would have reduced their profits. They resisted even after the passage of turn-of-the-century laws requiring the segregation of black people. One railroad manager complained that racial discrimination increased costs because it required the company to “haul around a good deal of empty space that is assigned to the colored people and not available to both races.” Racial discrimination also upset some paying customers. Black customers boycotted the streetcar lines and formed competing hack (horsedrawn carriage) companies, and many white customers refused to move to the white section.

In Augusta, Savannah, Atlanta, Mobile, and Jacksonville, streetcar companies responded by refusing to enforce segregation laws for as long as fifteen years after their passage. The Memphis Street Railway “contested bitterly,” and the Houston Electric Railway petitioned the Houston City Council for repeal. A black attorney leading a court battle against the laws provided an ironic measure of the strength of the streetcar companies’ resistance by publicly denying that his group “was in cahoots with the railroad lines in Jacksonville.” As pressure from the government grew, however, the cost of defiance began to outweigh the market penalty on profits. One by one, the streetcar companies succumbed, and the United States stumbled further into the infamous morass of racial segregation.

– Jennifer Roback, “The Political Economy of Segregation: The Case of Segregated Streetcars,” Journal of Economic History 56, no. 4 (December 1986): 893–917.

But economic self-interest was not always a sufficient foundation in the short run. If the customer is always right, then the racist customer is right; and if there be a sufficient number of racist customers, business shall accommodate them: particularly if they also vote, and vote legalized racism into effect, with concomitant fines and penalties. “As pressure from the government grew, however, the cost of defiance began to outweigh the market penalty on profits.” Samuel Gompers, the great American labor leader, head of the AFL, born in the East End of London and raised in the Lower East Side of New York, was a typical labor leader, whose interest was wholly, passionately, in the labor movement. He supported integrating the unions, because that swelled their numbers and their power. But he was opposed to affirmative action in any way, and he equally opposed any loosening of immigration restrictions, even for refugees, even for his fellow Jews, if and insofar as such measures should dilute the power of organized labor.

Plessy v. Ferguson, 163 U.S. 537 (1896), it’s worth noting, arose from a prosecution of a mixed-race (and white-passing) passenger boarding a “white” railroad car in New Orleans. It was in fact a test case, set up, with the connivance of the East Louisiana Railroad, which opposed the Louisiana Separate Cars Act on economic and overhead grounds, by the New Orleans Comité des Citoyens, a group of dissenting Louisiana Creoles of both races and mixed-race persons, with Mr. Plessy as a volunteer defendant.

The law was clearly on their and Mr. Plessy’s side. The Supreme Court was not. The case backfired, and the doctrine of “separate but equal,” which in practice was always separate and never equal, became enshrined in constitutional law for six decades, until Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Even Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), lasted less than one decade.

The Democratic Party was an alliance between Northern, urban, often ethnic-based, and always boss-system-governed cities, and the Solid South. The only crack in the solidity of the South came when the Democratic Party nominated, at the Democratic National Convention in Houston, Governor Al Smith of New York for the presidency: an Irish American, Italian American, Catholic, Yankee anti-Prohibitionist. However that nomination may have played in Peoria, it did not play for sour apples in Palestine or Plano, or in Pittsylvania County, Virginia, or in Pensacola.

Al Smith’s successor, FDR, never forgot that lesson. With the exception of Governor Price Daniel of Texas, no politician since Washington has ever considered his party and himself to be other than indispensable. There is always something which must be done, there is always a crisis which no one else can solve, there is always some comforting reason why the ends justify the means; some justification for the easy course, some reason for profiles in cowardice. FDR was not going to jeopardize his plans and his policies in the crisis of a Great Depression, or the midst of a World War, by splitting the Democratic Party and alienating the white South over civil rights. Nor was JFK if he could possibly avoid it: even though Truman had desegregated the Army and survived. Even in proposing what became the Civil Rights Act of 1964, President Kennedy was cautious and tentative, as he had been in his term-and-a-bit in the Senate. Nor, probably, could JFK have got it through the Senate, where he had been written down from the start by his colleagues as an amiable and far too ambitious lightweight. When President Kennedy was assassinated, his pussyfoot civil rights bill and his desperately needed tax cut were both bottled up in Congress, each held hostage to the other, with no prospect of breaking the impasse.

As Milton Friedman once said, it is not enough to elect the right people: what matters is making it politically profitable for the wrong people to do the right thing.

It fell to two Texans to do the right thing. Dwight D. Eisenhower had been born in Denison, and the former Supreme Allied Commander in Europe, having whipped Hitler, had no fear of Southern racists, including those who had been in the Senate since God was in short pants. The Supreme Court had ordered school desegregation in Brown. Governor Orval Faubus of Arkansas wasn’t going to stand for that, and called out the National Guard to prevent the integration of Little Rock Central High School. Ike wasn’t playing around. He federalized the Arkansas National Guard and sent in the 101^st Airborne.

LBJ, born in Stonewall, had not been a general in the mode of Washington and Grant, as Ike had been. But before becoming Vice President, and then succeeding the assassinated President Kennedy, he had been for many years the absolute master of the Senate. He was a calculating and crafty man, tempted on occasion to virtue but a born anti-hero. He knew where the bodies were buried and who’d buried them. His motive in getting civil rights legislation through Congress was not particularly noble, but was, rather, the result of political calculation, for partisan advantage, of which he was the undisputed master. And because he was the undisputed master of political calculation, the master of the Senate, who knew where the bodies were buried, and because he had the most virulent racists in the Senate by the tenderest parts of their anatomies, he knew and showed that he could do what he wanted when he wanted to on any legislation no matter who opposed it. Jack Kennedy could never have done it and made the Democratic Party put up with it without splitting apart; Lyndon did it without breaking a sweat. And made his fellow Southern Democrats grin and bear it.

He was determined to win election in his own right in 1964. He was determined to rub Bobby Kennedy’s nose in the fact that he, LBJ, could do what Jack could never have done. He already expected to be facing Barry Goldwater, and he was determined to beat him; and he knew that Goldwater was a lifelong member of the NAACP. Neither he nor the Democratic Party could any longer afford to be the party of segregation or the standard bearers of that party and that policy. A quarter of a century later, Bill Moyers claimed, doubtless with some advantages of memory,  that, when the act passed, LBJ despaired that he might have given the South to the Republican Party for two lifetimes; but what LBJ said in 1963 and 1964, not least to Southern senators he wished to chivvy into letting the bill through, was that the party which passed a Civil Rights Act would have a lock for the foreseeable future on the African Americans whom the Act at last truly enfranchised.

In 1962, the Cuban Missile Crisis very nearly brought to the world to a thermonuclear end. By 1963, as the country began already to blunder into the swamps and jungles of Vietnam, the question was whether America was the great liberating power, or just another name for Birmingham: Birmingham, Bombingham of the murders, of the spittle-flecked, mouth-frothing hatreds, of the firehoses and police dogs directed upon peaceful protesters by a member of the Democratic National Committee, of the murderous bombings of little African American girls on a Sunday morning at church preparing for divine service. The Cold War was running hot, and America’s friends at America’s enemies were watching.

They were watching events inside America, and measuring these against America’s moral claim to be a shining city on the Hill, the leader of the free world, the last, best hope of mankind, the citadel of freedom and Liberty.

Pending before the Supreme Court was Bell v. Maryland, 378 U.S. 226 (1964), arising from a 1960 sit-in in Baltimore. The initial conference showed the justices five to four in favor of upholding the resulting convictions, of the ground, established by much precedent, that the state could not trespass upon private business arrangements, including the refusal of service. This would have doomed the bill in Congress. Then, Justice Tom Clark of Texas changed his mind. Justice Douglas, who had delayed the decision as long as possible for fear of the congressional consequences to the civil rights bill, then delayed it further so as not to give cover to senators to vote against the bill on the grounds that the Supreme Court had already taken care of the problem. In the end, the court found a procedural reason to send the case back to the lower court.

Calculation, self-interest, and political profitability had accomplished, as they always do, what preaching and prayer had not. The Supreme Court had corrected its past errors of law and avoided committing a new error of politics. Congress had spoken. Now, though, the law had to be enforced.

I Am the Very Model of a Private Attorney General

WHEN THE CIVIL Rights Act of 1964 was passed, it was evident that enforcement would prove difficult, and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only.

When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone, but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority.

– Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402 (1968)

In Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court struck down section 4(b) of the Voting Rights Act of 1965, on the grounds that it had worked, and things had so changed in the country that the Act’s enforcement regime was no longer necessary or constitutionally justified. It had taken legislation and enforcement to reach that point: mere social pressure hadn’t done the job. Education had failed. Religion had failed. Congress and the Supreme Court had long failed. Civil society had failed. In fact, for much of the time, all of these were on the other side, allied to the evil.

M Homère Adolphe Patris Plessy had failed. General Cleburne, who’d urged emancipation and African American enlistment upon the Confederacy, had failed; General Lee, the apostle of reconciliation and the singlehanded desegregator of the communion rail at Saint Paul’s, had failed; General AP Hill, that Confederate abolitionist, had failed; General Jackson, who had defied Virginia law and custom to teach literacy to the enslaved, had failed: the white South had not been persuaded even by its heroes. President Lincoln, and President Grant, relenting at last upon Reconstruction, had failed, too, ending open resistance but leaving hearts and minds untouched and unreconstructed. Neither example from within the South nor pressure from without had accomplished what was necessary to be accomplished. Even the law had not worked … until Ike, and then Lyndon Johnson, by one and another form of raw power, rewrote the rules.

If things have so changed in the country that parts of the Civil Rights Acts can be taken for granted, much of the credit for that change is due to private lawyers for private litigants. Even after the passage of these acts, there was massive resistance, not only in the South, but throughout the country. There are only so many US Attorneys and their AUSAs. What Shakespeare called “the insolence of office, the law’s delays,” was deliberately deployed to resist the Civil Rights Acts. And, far too often, the resistance included local judges, prosecutors, juries, policemen, and sheriffs.

It is easy, and it is sometimes deserved, it has sometimes been earned, to agree with only half a smile to what Shakespeare has Dick the Butcher say: “The first thing we do, let’s kill all the lawyers.” Lawyers can sometimes be mercenary, in the sense of grasping. Lawyers are often mercenaries in the sense that they are guns for hire. But let us recall the words of another English poet, AE Housman:

Epitaph on an Army of Mercenaries

These, in the days when heaven was falling,
The hour when earth’s foundations fled,
Followed their mercenary calling
And took their wages and are dead.

Their shoulders held the sky suspended;
They stood, and the earth’s foundations stay;
What God abandoned, these defended,
And saved the sum of things for pay.

Sometimes, mercenaries are the last line of defense. Attorneys bringing suit for civil rights violations, as private attorneys general, are the Gurkhas of the Constitution.

Maurice Bessinger ran a chain of barbecue restaurants – Piggie Park – in North Carolina, all of them drive-through save one. Anne Newman, an African American minister’s wife, was denied service at one restaurant. A restaurant is a place of public accommodation under the Civil Rights Act. She sued. Bessinger’s defense for not serving a minister’s wife simply because of her race was that it violated his religious principles … whatever they were: as they were not Christianity.

There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.

– Galatians, iii. 28.

The Supreme Court was not amused, or impressed.

The District Court held that the operation of each of the respondents’ restaurants affected commerce within the meaning of § 201 (c) (2), 78 Stat. 243, 42 U.S. C. § 2000a (c) (2), and found, on undisputed evidence, that Negroes had been discriminated against at all six of the restaurants. 256 F. Supp. 941, 947, 951. But the District Court erroneously concluded that Title II does not cover drive-in restaurants of the sort involved in this case. 256 F. Supp., at 951-953. Thus the court enjoined racial discrimination only at the respondents’ sandwich shop. Id., at 953.

The Court of Appeals reversed the District Court’s refusal to enjoin discrimination at the drive-in establishments, 377 F.2d 433, 435-43….

When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees – not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

– Newman, 400-402.

Over the past half century since Newman, the concept of the private attorney general, the private litigator vindicating public rights on behalf of a private litigant, has expanded, as it had to expand. Gutless elected officials exist even in the federal system and the federal bureaucracy, let alone among elected sheriffs and police chiefs and prosecutors. The civil rights lawyer in private practice is the built-in failsafe of the system, and without him or her the past half century of progress made should not have been made.

Nor should that progress have been maintained without those lawyers. The price of Liberty is eternal vigilance. Today, just as there remain threats from white racists to the civil rights of racial minorities, there is also an assault from the Left, clothing itself in the language of wokeness, upon the Fair Housing Act and the Civil Rights Acts, appropriating the death of George Floyd – my (O, American irony!) seventeenth cousin twice removed, as it happens – and the maxim that Black Lives Matter, urging separatism and seeking to resegregate housing and education from the other axis, often coupled with a renewal of Jew-hatred not seen since the Nuremberg Trials: which must likewise be resisted.

Some lawyers are driven by a partisan agenda; some are cynical, with an eye to political reward; some are wild-eyed; some improperly exceed the bounds of arguing colorable legal principles, making claims, defenses, and other legal contentions which, impermissibly, are not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

But such lawyers do not last long in the profession, which is self-correcting. When, therefore, a private lawyer brings a civil rights action which is not facially nonsensical, but which, rather, seeks to vindicate the rights of his client, and further the purposes for which Congress passed civil rights legislation to make the Constitution truly effective, then, however uncomfortable it may make some of you, the proper and honorable response may be taken from the film version of To Kill A Mockingbird.

Miss Jean Louise, stand up. Your father’s passin’.

Here endeth the Lesson.