Congress, Politics, Society, Supreme Court

Massive Resistance and the Government Shutdown

 By Mike Appleton, Guest Blogger 

“We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation. 

-The Southern Manifesto,  Cong. Rec., 84th Cong. 2d Session, Vol. 102, part 4 (March 12, 1956)

‘This was an activist court that you saw today.  Anytime the Supreme Court renders something constitutional that is clearly unconstitutional, that undermines the credibility of the Supreme Court.  I do believe the court’s credibility was undermined severely today.” 

-Michele Bachmann (R. Minn.),  June 26 2012

Most people are familiar with the opinion in Brown v. Board of Education of Topeka, et al., 349 U.S. 483 (1954), in which a unanimous Supreme Court summarily outlawed public school segregation by tersely declaring, “Separate educational facilities are inherently unequal.” 349 U.S. at 495.  But many people do not know that Brown involved a consolidation of cases from four states.  The “et al.” in the style refers to decisions on similar facts in Delaware, South Carolina and Virginia.  And the response of Virginia to the ruling in Brown provides an interesting comparison with the actions leading to the current government shutdown.

In 1951 the population of Prince Edward County, Virginia was approximately 15,000, more than half of whom were African-American.  The county maintained two high schools to accommodate 386 black students and 346 white students.  Robert R. Moton High School lacked adequate science facilities and offered a more restricted curriculum than the high school reserved for white students.  It had no gym, showers or dressing rooms, no cafeteria and no restrooms for teachers.  Students at Moton High were even required to ride in older school buses.

Suit was filed in federal district court challenging the Virginia constitutional and statutory provisions mandating segregated public schools.  Although the trial court agreed that the school board had failed to provide a substantially equal education for African-American students, it declined to invalidate the Virginia laws, concluding that segregation was not based “upon prejudice, on caprice, nor upon any other measureless foundation,” but reflected “ways of life in Virginia” which “has for generations been a part of the mores of the people.”  Davis v. County School Board of Prince Edward County, 103 F. Supp. 337, 339 (E.D. Va. 1952).  Instead, the court ordered the school board to proceed with the completion of existing plans to upgrade the curriculum, physical plant and buses at Moton High School.  When the plaintiffs took an appeal from the decision, the Democratic machine that had for many years controlled Virginia politics under the firm hand of Sen. Harry Byrd had little reason to believe that “ways of life” that had prevailed since the end of the Reconstruction era would soon be declared illegal.

When the Brown decision was announced, the reaction in Virginia was shock, disbelief and anger. Reflecting the prevailing attitudes, the Richmond News Leader railed against “the encroachment of the Federal government, through judicial legislation, upon the reserved powers of the States.”  The Virginia legislature adopted a resolution of “interposition” asserting its right to “interpose” between unconstitutional federal mandates and local authorities under principles of state sovereignty.  And Sen. Byrd organized a campaign of opposition that came to be known as “Massive Resistance.”

In August of 1954 a commission was appointed to formulate a plan to preserve segregated schools.  Late in 1955, it presented its recommendations, including eliminating mandatory school attendance, empowering local school boards to assign students to schools and creating special tuition grants to enable white students to attend private schools.  Enabling legislation was quickly adopted and “segregation academies” began forming around the state.  Subsequent legislation went even further by prohibiting state funding of schools that chose to integrate.

In March of 1956, 19 senators and 77 house members from 11 southern states signed what is popularly known as “The Southern Manifesto,” in which they declared, “Even though we constitute a minority in the present Congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the States and of the people be made secure against judicial usurpation.”

Throughout this period the Prince Edward County schools remained segregated, but when various court rulings invalidated Virginia’s various attempts to avoid integration, the school board took its final stand.  It refused to authorize funds to operate any schools in the district, and all public schools in the county were simply closed, and remained closed from 1959 to 1964.

There are striking similarities between Sen. Byrd’s failed plan of Massive Resistance and Republican efforts to prevent implementation of the Affordable Care Act.  There was widespread confidence among conservatives that the Supreme Court would declare the Act unconstitutional.  When that did not occur, legislators such as Michele Bachmann, quoted above, attempted to deny the legitimacy of the Court’s ruling.  Brent Bozell went further, denouncing Chief Justice Roberts as “a traitor to his own philosophy,” hearkening back to the days when southern roadsides were replete with billboards demanding the impeachment of Chief Justice Earl Warren.

The House of Representatives has taken over 40 votes to repeal the ACA, quixotic efforts pursued for reasons known only to John Boehner and his colleagues.  And in accordance with the Virginia legislative model, the House has attempted to starve the ACA by eliminating it from funding bills.  Following the failure of these efforts, Republicans have elected to pursue the path ultimately taken by the school board of Prince Edward County and have shut down the government.

Even the strategy followed by Republicans is largely a southern effort.  Approximately 60% of the Tea Party Caucus is from the South.  Nineteen of the 32 Republican members of the House who have been instrumental in orchestrating the shutdown are from southern states. It is hardly surprising therefore, that the current impasse is characterized by the time-honored southern belief in nullification theory as a proper antidote to disfavored decisions by a congressional majority.

In reflecting upon the experience of Virginia many years later, former Gov. Linwood Holton noted, “Massive resistance … served mostly to exacerbate emotions arrayed in a lost cause.”  Republicans would do well to ponder the wisdom in that observation.

1,677 thoughts on “Massive Resistance and the Government Shutdown”

  1. I am not demonizing socialism or fascism, I am merely saying that a government which picks winners and losers in the market is either socialist or fascist. I leave it to the reader to chose.

    Engineering for the most part wont make you rich, comfortable maybe. And engineers have much more to think about than money. Money is pretty far down my list.

    But I do think a good deal about individual rights and liberty. And I also think about the idea that both political freedom and economic freedom are necessary for a free society.

    And you dont seem to understand that a shop keeper paying for protection is not graft.

    I think capitalism is much closer to human nature than socialism or fascism or communism. People are willing to work hard and take risks when they are rewarded for doing so. It is a pretty simple idea, it is also how animals are trained. The dolphin isnt going to do flips for a pat on the head and an attaboy from the trainer. Is the dolphin selfish for wanting a piece of fish as a reward?

  2. Bron,

    It’s also a fact that graft is by definition a minimum of a two party crime and that you’re demonstrating once again that you don’t have a proper grasp on either socialism or fascism but are instead using those words to demonize anything that doesn’t conform to your fantasy version of how free markets operate in practice. In some ways, you remind me of the hardline Communists who refused to accept long after the evidence was in that their dream didn’t work in reality or why it didn’t work: human nature. Where Communism didn’t take human nature into account, laissez-faire economics appeals to the very worst in human nature: selfishness and greed. Thinking about money all the time and using that as the primary lens by which to view the world? Warps your mind. See the evidence presented by economist Robert Frank for yourself. http://www.huffingtonpost.com/adam-grant/does-studying-economics-b_b_4141384.html

    1. First, great job everyone. This is a huge, huge thread and everyone has remains relatively civil. It would be great if someone could get the webmaster to cut off each post say after 2 or 3 lines and show the word “continued” or “read more of this post.” and place the replies directly under the original post and/or the post being replyed to. Can blogs even do this?

      Gene H.
      Why do you associate self interest with greed? When I go to work for some one, I do it to earn money, which is surely in my own self interest, unless you are willing to do my work for me. Hopefully, what I do and contribute to the group I’m working with, for or run, is seen by the group as beneficial to them, or I probably won’t be a part of that group for very long. Everyone works for their own self interests because no one else is going to do it for them. Thinking that there is no benefit to others, when I do something in my own self interest is failing to understand each persons potential benefits to others when simply taking care of themselves. I believe this simply misunderstanding of the market forces, being subject to many people working in their own self interest, that being greed and therefore bad, has made many loose site of the benefits of liberty and the human potential.

      I guess if someone could purely act in their own self interest 100% of the time and no one catch on to it, perhaps that is true greed. What is the worst potential, is when a group of greedy people join together in collusion. Don’t we call that Congress? Watching the latest debates on the shutdown and debt ceiling reminded me of this. I think this level of disagreement and dysfunction can only exist for any significant period of time within the institution of government, because no one person would tolerate being involved in anything so demoralizing and disheartening, unless their “substantive” economic power base is highly threatened and only government is there such a potential. In the private sector, they just fire someone, everyone or the company fails. Only in government can this level of problems and debt keep piling up with no one willing to significantly lower their economic power base. I guess we’ll just put it off again!!!

  3. Mike Appleton:

    I think it is implied in the statement about life, liberty and property that it is a 2 way street. An individual does not have the right to pollute another’s well.

    Isnt that why we have government? To protect the rights of individuals from other individuals abridgements of those rights.

    “Needless to say, he would have thought even less of those businesses or industries that convince legislative bodies to grant them legal immunity from the consequences of their activities.”

    I am certain he would have, as would any true capitalist. I believe what you refer to is either fascism or socialism. Take your pick. And the legislative bodies which grant those favors are despots.

  4. Swarthmore mom,

    Watching Scotty Blow, Continued
    By Charles P. Pierce
    10/22/13
    http://www.esquire.com/blogs/politics/scott-walker-possible-recall-campaign-violations-102213

    Excerpt:
    Things have been getting interesting for Scott Walker, the goggle-eyed homunculus hired by Koch Industries to manager their midwest subsidiary formerly known as the state of Wisconsin. He’s got a book coming out, ghosted by Washington Post torture-porn columnist Marc Thiessen, no less. Things are sailing except, well, they’re not.

    “A former top-level assistant U.S. attorney has been appointed a special prosecutor in a burgeoning, secret investigation into a wide variety of state issues, including possible campaign violations during the recent recall elections, multiple sources said. Francis Schmitz – who spent nearly 30 years as a federal prosecutor and was once a finalist for U.S. attorney in Milwaukee – is leading the widespread John Doe probe, according to sources. Overseeing the case is Kenosha County Circuit Judge Barbara A. Kluka, who has been used by Milwaukee County judicial officials in past John Doe cases. Milwaukee County Assistant District Attorney Bruce Landgraf, whose office initiated the probe, declined to answer questions about the John Doe on Friday. Insiders said the investigation covers several jurisdictions, including Dane County. Police and prosecutors in these other counties have been lending a helping hand. “It’s now spread to at least five counties,” said a source familiar with the probe, adding that Landgraf has been investigating “all over the place.” Another source said one reason that these other counties have been roped into the investigation is a new state law that allows elected officials to be tried in their home counties for violations of ethics, lobbying and campaign laws. Ex-Assembly Majority Leader Scott Jensen had his case moved to Waukesha County under a Supreme Court ruling because of the law.’

    Walker’s first campaign was deeply, profoundly corrupt. Six people associated with it — and him — were convicted of various crimes. Now, it appears that there may have been some shenanigans in the recall elections as well.

    “It appears the state-related case opened in February 2012, meaning it was active at the same time as the one focusing on Walker’s county aides. However, several sources said they became aware of the newer probe only in the past month and that much of the recent activity has taken place in Madison. Sources familiar with the probe told the Journal Sentinel that it was scrutinizing a wide variety of state-related issues, including the recall races. Sources suggested the probe is looking at a current legislative leader and the governor’s contest. “This is activity that occurred since the 2010 election,” said a source. The legislative leader did not return calls on Sunday.”

    As he tours his book in preparation for a run for the presidency, it might be nice if someone asked Walker why every campaign he’s ever run has been investigated for corruption, and how he feels about becoming governor while six of his aides become convicts.

    *****

    Secret probe spreads to five Wisconsin counties
    Possible violations during recall elections among issues
    by Daniel Bice
    http://www.jsonline.com/watchdog/noquarter/secret-probe-spreads-to-five-wisconsin-counties-b99124190z1-228569231.html

    Excerpt:
    A former top-level assistant U.S. attorney has been appointed a special prosecutor in a burgeoning, secret investigation into a wide variety of state issues, including possible campaign violations during the recent recall elections, multiple sources said.

    Francis Schmitz — who spent nearly 30 years as a federal prosecutor and was once a finalist for U.S. attorney in Milwaukee — is leading the widespread John Doe probe, according to sources.

    Overseeing the case is Kenosha County Circuit Judge Barbara A. Kluka, who has been used by Milwaukee County judicial officials in past John Doe cases.

    Milwaukee County Assistant District Attorney Bruce Landgraf, whose office initiated the probe, declined to answer questions about the John Doe on Friday. Insiders said the investigation covers several jurisdictions, including Dane County. Police and prosecutors in these other counties have been lending a helping hand.

    “It’s now spread to at least five counties,” said a source familiar with the probe, adding that Landgraf has been investigating “all over the place.”

    Another source said one reason that these other counties have been roped into the investigation is a new state law that allows elected officials to be tried in their home counties for violations of ethics, lobbying and campaign laws. Ex-Assembly Majority Leader Scott Jensen had his case moved to Waukesha County under a Supreme Court ruling because of the law.

    Sources said the investigation is following up on a number of leads turned up by an earlier John Doe probe, which was led by Milwaukee County District Attorney John Chisholm into the former and current aides of Gov. Scott Walker during his time as Milwaukee County executive.

    Six individuals — including three former Walker aides, an appointee and a major campaign contributor — were convicted of criminal charges as a result of the probe. The first-term Republican governor said he was not a target of the investigation, which ran for nearly three years.

    A John Doe probe functions much like a federal grand jury, allowing prosecutors to conduct searches, subpoena records and other material, and take testimony under oath from witnesses — all in secret.

    Read more from Journal Sentinel: http://www.jsonline.com/watchdog/noquarter/secret-probe-spreads-to-five-wisconsin-counties-b99124190z1-228569231.html#ixzz2iV3abQ3u
    Follow us: @NewsHub on Twitter

  5. SWM, Like all pols, Walker thinks he can be prez. He just wrote a book, it’s getting panned. It’s not on my reading list. I did not vote for him the first election, but did in the recall. As you know, a lot of folks did that. He is not prez material. He’s the kinda pol I can see being pegged for VP, but he’s so polarizing, he may not carry his own state. There is a very interesting Dem candidate for guv, Mary Burke. She’s on the Madison School Board. Her dad is Trek Bicycle in nearby Waterloo. Burke is an iconoclast. She just bummed around in her earlier years and now seems to want to do something w/ her life. Trek and Burke have been very supportive of magnet schools and vouchers. Although, just today, Burke stated she want to be cautious about increasing vouchers which is what Walker is advocating. Hell, you know Burke doesn’t need to pander to teachers, they ain’t voting for Walker. If the election were today I would vote for Burke. She’s a bit flaky[I think she did a good amount of weed..my kinda girl!] but she’s smart and fairly moderate. On the Madison School Board she like a John Bircher..everything’s relative. She’ll get hammered by Walker’s people but she has the money to fight back. Christie/Walker ticket?

  6. In all of the comments in which John Locke’s name is tossed about, I notice that no one ever mentions anything other than life, liberty and property. However, he specifically included health as a distinct property interest, and denied the right of any person to act in a manner harmful to the health of another person (other than in self-defense or in the course of lawful punishment). Therefore, he would have found no moral or legal justification for permitting either private or commercial activities which are detrimental to the health of human beings. Needless to say, he would have thought even less of those businesses or industries that convince legislative bodies to grant them legal immunity from the consequences of their activities.

    I am also surprised that I keep reading comments that describe the industrial revolution as though it were a period of great freedom and innocence. The growth of the great industrial fortunes in this country was achieved through equal parts hard work, political favoritism, public corruption, private fraud, luck and relentless oppression of the laboring classes under the protection of the god of Freedom of Contract. Those are not debatable facts; they are part of the historical record.

    And for those who are obsessed with their hatred of unions (and you know who you are), it would be wise to remember that the vast majority of human beings prefer to avoid conflict if possible, and will suffer injustice, humiliation and deprivation until those wrongs can no longer be endured. The union movement in this country was not a product of working class greed, but a response to intolerable conditions. Unions helped to equalize bargaining power to give some actual meaning to freedom of contract. Corruption in unions is no more justification for their elimination than corruption in corporate enterprises would justify their elimination. Power is a pendulum. The destruction of the unions does not benefit workers; it simply reconcentrates power in management and leaves workers literally at the mercy of their employers. The history of the middle class over the past 30 years ought to be sufficient proof of that truth.

    Finally, everyone has gone off topic.

  8. nick, Both are sleazy, but Cuccinelli is also a tea party extremist. There is at least a twenty point gender gap. It looks like the Tea Party is becoming more and more a southern thing. Hope Scott Walker is forced into retirement next year.

  9. Just because you don’t understand the implications of what you say doesn’t mean that others don’t, David.

    And the “you might be a Red” stuff is just adorable.

    I’ve been more than specific in my economics. If you cannot read what was written or understand what you read, ask a question. I’m a democratic socialist – if you must put a label on it – which means I’m for a mixed economy. The reason being that the free market is an irrational control mechanism and it has proven as faulty in practice as a command economy. If either polar extreme doesn’t work (free markets/command economy), then the answer is somewhere in between. Free markets are just fine for 90% of the crap we make and sell one another, but some market segments are too important to the survival of society to leave to the vagaries of markets and subject them to the tendency toward abuse that the quest for profits engender. If you understood how health care insurance companies make their profits (here’s a hint: it’s not from paying claims), you’d see perfectly well what I mean.

    And I don’t give a damn what you think is moral, David. The law isn’t based in morality. It’s based in ethics. As I’ve explained before, they are related but not the same thing nor do they come to the same conclusions.

    1. You really wrote this: “The reason being that the free market is an irrational control mechanism and it has proven as faulty in practice as a command economy.”

      So Gene, when to go and buy something, you use irrational thought to make your decisions? And when people produce things you thing they use irrational thought to make their decisions? Give me one book that proves that a free market economy is as faulty as a centrally planned economy. Even Maynard Keynes would disagree with that. Karl Marx might agree, but none of his ideas ever worked. You really need to stop making up stuff.

  10. DavidM: Making it a “parking lot” with painted lines was what the government forced me to do.

    I don’t think so, you certainly had options. You could have Xeriscaped it and put gravel down; in fact I have seen a restaurant in my state do that recently for expansion parking on a neighboring empty lot, and I know they got approval for that first. You could have skipped the concrete and put pre-fab pavers down (I have seen a parking lot made that way too), there are many things you could have done instead of paving it. Perhaps you should have investigated exactly what needed a permit before jumping into paving; a bit of an open mind in terms of solving the problem might have saved you a lot of headache.

    In fact, after some research you might be better off if you rip it out and start over right. A few hours with an attorney could have saved you a ton of money and resentment.

    No thanks on Stossel, if he allowed himself to be employed by Fox News I don’t trust his opinion, editing, or interviewing. But I say the same about many on MSNBC, which I also won’t watch.

    David says: You really should consider expanding your horizons and willing to listen to information from various sources, not just liberally biased sources.

    Now who is prejudiced?

    You are mistaken, my horizons were open, experience closed them to those venues, including FOX and MSNBC. I see no point in listening to any shows that demonstrate to me they are lying, biased, cherry-picking apologists or mouth-pieces for any side, why waste my time trying to pick apart what is true and what is not? Graphs, “facts”, and emphasis are all tools used to manipulate me into their belief system, and I am too skeptical for them.

    I get my news on the Internet (like this site). I don’t mind an openly stated bias, like Jon Stewart’s or Stephen Colbert’s (faked bias) or Glenn Greenwald’s or Matt Taibbi’s, I can even handle admitted mistakes, but once I detect what seem to be intentional partisan lies or duplicity (as I have on both Fox and MSNBC) I am done with them. Unlike you, I am not entertained by lies pretending to the be truth, if I want fiction (and I do, frequently) I will watch or read fiction that doesn’t pretend to be facts.

    1. Tony C wrote: “but once I detect what seem to be intentional partisan lies or duplicity (as I have on both Fox and MSNBC) I am done with them. ”

      If I used that standard, I would not subject myself to any news outlet or this blog or anything on the internet. I find misinformation in every outlet. Yes, I have observed it on Fox News, but it is worse on CNN and most every other outlet IMO. Whether they are lies or not doesn’t really matter because I don’t feel it is my job to determine whether the motive is intentional or whether the misinformation just comes from bias or faulty logic or repeating a bad source.

      Last night I listened to Secretary Kathleen Sebelius on CNN explain the Obamacare website debacle. It was fascinating to me how she can believe that she created a market where there was none before. She also kept repeating how much people want the product because 20 million people visited the site. Does she forget that the law created the situation where everybody has to buy the product or face paying a penalty? Is she purposefully lying? I think she just suffers from poor logic, not recognizing all the facts, etc. The end product is the same. The low information person will listen to her and think Obamacare is a good thing and everybody wants it.

      At one point in my life, I made a vow not to listen to any news from any source for a whole year. I did not listen to radio, read the newspaper, etc. for an entire year. The only source of information would be from face to face communication with another person. It was an interesting experiment.

      1. @Bron – Actually the free market has supplied unemployment compensation in the past. The book “The Voluntary City” by the Independence Institute goes into detail, how various social organizations supplied unemployment compensation to their members during the mid to late 19th century. Organizations such as the many unions could do the same thing, if government got at of the way. I think so many people fail to understand that to cure problems associated with the free market, it appears it is better to provide free market solutions rather than government solutions. Just like minimum wage. if we applied free market solutions, such as eliminating the central bank, property and income taxes, employment would significantly increase, thereby placing employers in a position of having to raise wages. Instead we much beg politicians to raise minimum wages and they will raise it from $7.25 to say $7.75. about every 7-10 years when the inflation rate is far about that increase. It’s really about honest solutions and results that the government simply cannot supply. Just ask the homeless, unemployed and underemployed. If you keep reading and watching what the main stream media feeds you, you will forever be without the information necessary to improve our world.

        I do believe that you should listen to CNN, Fox and read the NY Times . It’s just hard to stomach them for very long if you want to find out the whole truth.

  12. Quite a choice the duopoly is offering the good people of Virginia. Would you like Sleazy or Sleazy, Irish or Italian?

  14. David, I’m just brushing up on my French for our decadent, capitalistic, Koch Brothers, sojourn, replete w/ expensive breakfasts and Caligula escapades. We leave December 4th. Any personal info or ANECDOTES about Tuscany, Nice, Cannes and Monaco will be appreciated. Ironically, this trip will be putting us in gypsy camps as my wife is researching a book. The blonde girl kidnapping in Greece is fascinating. Gypsies have a sophisticated welfare scam biz in Europe. You know, there’s a lot of free welfare money there, but only 1% fraud I’m sure. With Europe going broke look for a lot of Gypsies coming here.

  16. Did that not say anything to you about you, Gene??? Wow! I respect Mr. Turley immensely. Et vous?

  18. As Tony points to, an implicit premise is still a premise and yours is faulty, David.

    1. Gene H wrote: “an implicit premise is still a premise…”

      Correct.

      Gene H wrote: “… and yours is faulty, David.”

      Incorrect.

      He invented a premise that was never implied in anything that I said.

      I spoke of a philosophical framework where we have free market capitalism with private ownership of property on one end of a spectrum and communism on the other end. Most governments fall in-between these spectrums, with government regulations determining how far toward the ends a society is functioning. The greater the government regulations, the closer to communism that government is, and the less the government regulations, the closer it is to free market capitalism.

      I favor a place on that spectrum that is closer to free market capitalism. I view communism as immoral because it infringes upon the inalienable rights of human individuals. I think most of us are still trying to figure out how far toward communism you and Tony are functioning. Surely it is closer to communism than either Bron, Nick or me. When you get more specific about your economic philosophies, then we will know.

  19. Bron: 200 years ago I could down as many trees as I wanted and put fences in, stonewalls, change the grades, put in a pond without any government whatsoever involved. In fact I could do that into the 20th century.

    And we had to curtail that freedom because it was abused and people were taking unfair advantage of neighbors, downstream, downwind, downhill and so on. If you have ever worked land you should know the impact on neighbors can be significant, your logging or fencing or pond can result in large changes in runoff that drown or parch neighboring land, your smoke can make it unlivable; your stone fences can deprive it of game or interfere with migrations or even cause your neighbors to be overrun with mice or other pests. In the modern world, what my neighbor does with his house and land can impact both the property value and safety of my house. That is why I am thankful our deed restrictions won’t let him build a frikkin’ parking lot in his yard.

  20. Both of your mentions of Chessman are prior to my coming here. You remember, the good ol’ days!

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