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”

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  3. Bron: You have a skill that permits you to work for yourself. A cashier or warehouse worker or secretary or burger-flipper might try to strike out on their own as a contractor, but they are highly unlikely to meet with any success.

  4. tony c:

    “and unfortunately people without any ethics or conscience or empathy rise to the top of organizations, because (without the threat of punishment) there is nothing they will not do to get there, no amount of betrayal, back-stabbing, lying, theft, blackmail or even threats of violence are too much.”

    there is some truth in this. It is why I work for myself, I could not stand those motherfukers.

  5. Bron says: I have met a few scum bags who were like you say but the vast majority of people want to do a good job.

    Without the law, the few scum bags (5%) do 99% of the harm; and the 95% that want to do a good job are not prevented from it, they are just double-checked on it. The extra cost of that double-checking is an added expense, true, but it is like an insurance premium we are forced to pay to minimize the cost of being victimized by that 5% of scum bags.

    If 5% of people are scum bags, how many people in a company does it take before there is a 99% chance of a scum bag in the company? Only 90 people; and unfortunately people without any ethics or conscience or empathy rise to the top of organizations, because (without the threat of punishment) there is nothing they will not do to get there, no amount of betrayal, back-stabbing, lying, theft, blackmail or even threats of violence are too much.

    Change the percentages, and the numbers don’t change much. 2% of people are clinical sociopaths and psychopaths, there is a 99% chance one of them is in a company of 228 people. And a 50/50 chance that one can be found in a company of just 35 people. A “few scumbags” is too many. Your claim is like saying the body does not need an immune system because the number of healthy cells far outweighs the number of disease causing cells to which we might be exposed.

    It isn’t true. For society, the immune system against the malignant cancer of sociopaths and psychopaths is the laws and police.

  6. Bron says: At some point you cannot prevent every accident from happening.
    Bron also says: he only way to eliminate accidents is to get rid of human progress.

    But we can prevent a large number of accidents from happening, particularly when the cause of the accident is something we built. You discount your own profession, Bron, by pretending that because we cannot engineer to prevent 100% of accidents, we therefore cannot engineer to prevent 95% of accidents.

    Bron says: How many people have died because of the FDA preventing a terminal patient from trying a new medicine or procedure?

    Some. How many people have lived because the FDA prevented them from being conned into buying fake medicine that would have done nothing but cost them money while they died, and thereby diverted them into effective medicine that cured them instead? How many people have lived because the FDA has prohibited unsafe medicines that kill patients or cause cancer or depression to the point of suicide? How many people have been cured because the presence of the FDA and rigorous testing for efficacy and safety has made pharmaceuticals and researchers move away from snake oil and aspirational bullshit to look for actual cures and relief that can pass the FDA guantlet?

    And I won’t even bring up the “Food” part of that, to which all the same points apply. The FDA was brought into existence because fraud, lies, and secrets were rampant and causing great harm. It isn’t perfect, but it has changed the landscape.

    This is always the problem with you, Bron, you are willfully blind to (or dismiss) the outrages that used to happen, that were the reason laws were passed in the first place, and no longer happen because of the law.

    You want to pretend the free market somehow corrected those ills, or could have done, but it didn’t. A believable threat of severe punishment corrects those ills. That is how sociopaths and psychopaths are controlled. Either incarcerated, or channeled into useful roles, or at least much of the harm they do is mitigated.

  7. tony c:

    you know what I am doing now? a site plan for a small addition, it will cost the owner about 25,000 plus when all of the engineering required by the county and the fees for the plan review are paid. this is a small addition which is adding only 500 sf of impervious area, that is it. The man will even have to dedicate an easement to a bike lane. It has already taken 6 months for them to review the documents as the interest rates rise. He is a small businessman and just wants to expand his business, he is being abused in my opinion.

    I would say this is oppressive and serves no earthly purpose, did I mention he has to plant a bunch of trees as well?

    You dont have a clue as to what goes on in construction unless you are in this business. There are some good regulations and there are some oppressive ones, getting a permit for a shed is oppressive in my opinion. Getting a permit to clear a few thousand square feet of land is oppressive in my opinion. In my county the only people who can afford to purchase a pool are the well to do. A teacher cant afford one because the extra engineering and permit fees can add $10,000 to a $25,000 pool, for what? You could do the same thing for $1000.00 if they would realize that you dont need a Rolls Royce (oppressive regulations) when a Hyundi will do.

    Some codes are necessary, like the simpson tie downs for high wind and earthquake areas but some are ridiculous and oppressive.

    By the way if a shed doesnt have gas, electric how is going to catch on fire? As far as I know there arent any codes for storage of flammable material in a shed other than gasoline being in a proper container.

    If you say lightening, well a tree could catch the neighborhood on fire too. At some point you cannot prevent every accident from happening.

    As far as I know, the shop drawings were the culprit, the inspectors did there job but I think they missed the glass being hard to put in, there were some signs that something wasnt quite right. That is usually what happens in a failure like that, there are small warning signs that are within statistical norms and a chain of events, any one of which if done differently would have prevented the collapse.

    Your precious codes do nothing in those types of events. The only way to eliminate accidents is to get rid of human progress. And that is what many regulations do, they stifle innovation because people are afraid to take chances. How many people have died because of the FDA preventing a terminal patient from trying a new medicine or procedure?

    I have met a lot of people and they dont think like that, they do what they are paid to do. I have met a few scum bags who were like you say but the vast majority of people want to do a good job.

  8. Bron says: where did I say they were oppressive?

    HERE, on this thread, you said (and I quote):

    I want to build a shed in my backyard without having to get a building permit and complying with the Corps of Engineers. And do many other things without government watching me and forcing me to do things which are not in my best interest.

    Obviously you DO think they are oppressive; and obviously you DO only care about your personal best interest regardless of the effect upon others. The building permit, inspections and complying with established standards are how we enforce our rights to not be endangered by you or pay the cost of your negligent or ignorant mistakes. Nobody prevents you from building beyond code; although we may prevent people from “innovating” in un-studied, un-proven, un-reviewed ways on your own say-so that it is just as good as the public standard. Because that is precisely what people trying to circumvent the standard, to save money by endangering people, always say. “This is just as good.” Probably what happened at the Hyatt. And without inspection and oversight during construction, “Phuck it, nobody will ever know.” Perhaps also what happened at the Hyatt.

    Because that is human nature. Builders get caught up in the moment of building and getting their job done quickly, and they aren’t thinking about the structure 40 years from now, or the child 40 years from now that dies by their negligence or naivety in substituting an inferior component for the more expensive component, or expediently just pounds in a nail instead of using a bolt, or whatever.

    Sorry to break it to you, but just trusting people to be conscientious and act responsibly does not work, people under pressure tend to act in their own immediate self-interest, and often that is getting to their kids soccer game at 7:00, or preserving their profit margin or schedule after buying un-returnable wrong parts.

  9. RTC:

    what I am trying to say is that the codes were written by human beings who have, many times, their own ends in mind.

    Instead of using a Smpson tie down, why not use a pc of rebar and thread one end and put a hook in the other and bolt the sill using that. Simpson does all that testing to sell product, I use it all the time.

    The walkways at the Hyatt happened while I was in school, in Missouri in fact; it was a careless mistake. If I remember correctly the design was correct but the fabricator muffed it and the original engineer didnt catch it, he lost his license for that.

    By the way, I highly regard a true carpenter, I have met some really good ones and had the opportunity to work with them when I was a kid. St. Louis is a union town and they had really good programs for training. Those guys could do just about anything with wood. I could barely pound a nail straight and it always took me 3 or 4 whacks.

  10. Sorry Bron, I hope I didn’t give you the wrong impression. I have a lot of respect for engineers – the ones who do their job properly, at any rate. And, unlike many carpenters, I have a high regard for architects, as well.

    I get your point about the codes representing the minimum, however, when you said that they were simply devised by the industry to ensure consumption by the building industry, it sounded like you were implying that the requirements were somewhat needless. I guess you were saying the actual books themselves were needless.

    At any rate, most clients that I’m aware of don’t have a problem with overengineering. You just have to know how to present it to them, as in what an ounce of prevention is worth.

    So, as I said, unless you were the guy who designed the atrium walkways in the Kansas City Hyatt, you have my respect. How was I to know that someone accusing the government of trying to limit the production of oranges and tractors would actually possess a degree. DavidM doesn’t.

  11. tony c:

    where did I say they were oppressive? I personally dont think they are high enough and so I design my structures more rigorously than I need to when I can get away with doing so. I design for more than the code requires.

    My point is that most engineers do and that the codes in many cases reduce the quality of a structure because the owners dont want to pay the extra money, they only want to design to the bare minimum.

    I dont know why you cant seem to understand that codes can also reduce quality.

  12. Bron says: IBC and IRC are minimum standards.

    That is a tautology. Of course they are, any law or standard specifies the minimum criterion we find acceptable. Lawyers pass the bar, that is a minimum standard of knowledge required to practice law. PhD candidates pass their qualifiers, we have a minimum passing grade for that, too.

    But these are minimum standards you told us you thought were oppressive and you should be allowed to ignore!

    If you want to protest something, shouldn’t it be an excessive standard? Something that requires more than minimum safety? If what you want to build would not even meet minimum safety requirements, isn’t it inherently, and logically, unsafe? Meaning, it has a greater risk of harming somebody than a structure built to code.

    Why should we let you build such an unsafe structure? We have a limit on how much risk we are willing to tolerate in structures, and yours exceeds that limit. We aren’t violating your rights, we are protecting our own; we have a right to demand you do not endanger us. You do not have a right to endanger us beyond the limit we agreed upon, by establishing a minimum standard building code.

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