Mississippi Goddam!

Apologies to Nina Simone …

Brandon Terry’s extensively developed, very intense book recasts how we think about the “Civil Rights Movement,” a sequence of confrontations beginning in 1960 with black college student sit-ins in declaredly whites-only lunch counters in Greensboro, North Carolina, Nashville, and other cities in the South. This nonviolent theater inspired demonstrators and sometimes provoked very violent white opponents. Other efforts (marches too, maybe most notably later in Birmingham and Selma, Alabama, and in Washington, D.C., among many other places) also multiplied rapidly and widely, spreading nationally. These various happenings were celebratory, controversial, transformative, resisted: epochal seemingly. Terry treats this civil rights movement as separate from the earlier NAACP constitutional law and litigation campaign by Thurgood Marshall. Brown v. Board of Education or Cooper v. Aaron do not figure much in Shattered Dreams Infinite Hope.

Professor Terry is a social sciences savant well-read across many fields, complicatedly writing here often as if a socially and politically preoccupied literary critic (not a law professor or historian, for example). He closely deploys three orienting frames – romance, irony, and tragedy. He also makes insistent, provocative use of the idea of “exemplar.” Was and is the civil rights movement exemplary? To what point or purpose? Terry depicts his explorations as immersed in thinking of a notably distinguished group: prominently, Immanuel Kant; Hannah Arendt; Martin Luther King, Malcolm X, and Barack Obama; John Rawls; Derrick Bell, and Henry Louis Gates; Calvin Warren and other Afropessimists; Nikhil Pal Singh, W. E. B. DuBois, and ultimately A. Philip Randolph. Professor Terry questions all concerned intensely, builds out his own perspective at length too – takes charge of his crowd of notables. He resists simplifications. No simple romance, happy or harrowing. No irony becomes atmospheric.

What does this have to do with constitutional law?

There’s a real surprise in the middle of the book. John Rawls matters much. His “Theory of Justice” blockbuster published in 1971 is not “benign neglect” here; not just a few quick bows, gestures in passing acknowledging American racial conflagrations. Terry reads carefully and admiringly writing of Charles Mills, Rawls’s great judge in this regard. But Terry nonetheless disagrees with Mills. Rawls indeed wrote little at length about race in America in 1971. He had already organized his thinking in the 1960s however – Terry contends – already treating as “exemplary” Martin Luther King and the civil rights movement writ at large. Attention must be paid thus to this earlier writing too, especially to Rawls’s texts deployed in fierce 1960s Harvard interior skirmishes over civil disobedience, the justice or injustice of Vietnam War conscription and the like.

One 1966 exchange might count as evocative. Supporting Vietnam War conscription, Harvard political scientist Edward Banfield invoked Daniel Patrick Moynihan’s proposal a few years earlier. Terry summarizes: “Increasing black participation in the military would … provide a decisive boost to racial equality and black flourishing by reducing intractable black unemployment, providing opportunities for human and cultural capital acquisition…. Further, …conscription could ‘correct’ through military discipline, many of the forms of psychopathology, low self-esteem and deviance … were the fate of most men growing up in ‘disorganized and matrifocal’ black families.” (P. 242.) Rawls responded (Terry italicizes): “We feel that these considerations are irrelevant in view of the kind of justification required for compulsory service. Moreover, to maintain that these injustices are so great and the other institutions of our polity are in such a state of disarray that we must call upon the military to remedy our condition is tantamount to a confession of a social disorder so profound that were we to accept this confession as true, we should have to raise the question whether such a society has the right to conscript its citizens at all.” (P. 243, citing Folder 2, Box 24, Rawls Papers, 8-9 [not dated].)

Rawls’s response, Professor Terry declares, is “powerful and unforgiving.” (P. 243.) Why? Conscription in 1966 would in principle encompass all men (not women) who fell within an age range who were physically able, and who could not claim an again-generally worded exemption or deferment. But poorer black men, Moynihan and Banfield argued, would in effect also benefit distinctively if they fell within the draft pool for ordinary reasons. As Terry sees it, the issue was not for Rawls a matter of advantaged or disadvantaged treatment within the conscription regime per se. Rather, it was the distinctively ad hoc salience of the “in-effect remedy” emerging in the course of the draft. Terry supposes John Rawls in 1966 to be already arguing within the strict terms of his 1971 analytics, declaring a bar to treating basic liberties as if accidental, even notwithstanding compensating alternative advantages. A germinal “Theory of Justice”?

Rawls also stressed a different, concurrent fundamentality, it appears. He notes that the “state of disarray” Banfield and Moynihan pictured was, if taken seriously, “tantamount to a confession of a social disorder so profound” practically denying “society” real authority over “its citizens at all.” A de-constituted broken state? Philosopher Tommie Shelby, we know, has more recently strikingly explored at length implications of this sort within so-called “dark ghettoes.” Rawls, it is easy to think, appreciated too the profound politics of broken states (ignored by Banfield and Moynihan.) “Broken state” is itself a constitutive experience; deeply pressing, analytically antecedent, prior to immediate legalities. Its characteristics resonate culturally as either present or absent within familiar American conglomera – “popular sovereignty,” “equal citizenship,” “allegiance,” and “protection,” for example. Katrina Forrester, another of Terry’s colleagues, has illuminatingly explored Rawls’s early association in England with H. L. A. Hart, the two reading Ludwig Wittgenstein’s newly published “Philosophical Investigations.” Hart was beginning to work out his intricately structured “ordinary language” jurisprudence, published as “The Concept of Law” (a book seemingly never to be not-read.) Rawls, we know, treated his own distinctive terms “as if ordinary” too, unapologetically repeatedly reconsidering analytic connotations given apt criticism.

Rawls’s extended exploration of civil disobedience and related topics in 1971 further prompts Terry to take up Martin Luther King’s views – differing emphases, but clearly cousins.

Terry restating Rawls:

[C]ivil disobedience … and public reason broadly … are public, deliberative democratic speech act forms that concern the justice of the basic structure of society and speak to the widely shared conception of justice in a political community. Civil disobedience … breaks the law to address the majority’s “common sense of justice” and “declares that in one’s considered opinion the principles of social cooperation among free and equal men are not being respected.” (Pp. 252-53.)

Terry restating King:

In conditions of injustice, however, … characterizations of the public sphere may be woefully inadequate because the conditions of egalitarian, genuinely dialogical exchange do not obtain. … When denials of recognition respect are buttressed by particularly resilient forms of ideology or habits of disrespect, the expectation that the minority claims will be acknowledged is severely undermined, as such persons do not reliably appear in public as authoritative claim makers. (P. 262.)… [I]t may become necessary to introduce citizens and representatives of other societies as participants in discursive exchange (even if only imaginatively and symbolically). (P. 263.)

Terry himself declares: “Part of anticipating and reconstituting a new majority inevitably involves reconfigurations of cultural aesthetic questions of value, social scripts, affective attachments, and performances of esteem and appraisal that cut across existing axes of difference and disagreement.” (P. 269). King (sharply) and Rawls (quietly) spoke or wrote within this politics it appears to Terry.

It is difficult now to capture, viscerally, the depth of inferiorizing racial stigmas against black intelligence, organizational capacity, virtue, courage, and self-respect that ideologically buttressed the Jim Crow regime. … [D]irect action campaigns of the 1960s spectacularly up-ended calcified expectations…. The spectacle of discipline, direct action confrontation with dangerous mobs and police authority … “dissolved the stereotype…”. (my italics) (P. 270.)

The approaches of King and Rawls viewed within Professor Terry’s juxtaposed readings work well, it turns out, introducing ordering atmosphere, recourse to backdrops, emphases or extensions catching up “the civil rights movement as such” – on the ground too (notably not Terry’s immediate focus). The “spectacle of discipline” was initially evident in the students involved at the start, mostly enrolled in historically black colleges in North Carolina and Tennessee. Follow-on diversifying waves broke repeatedly across southern states, further outward and upward as well. Prerequisite instructional and organizational imaginings and installations owed much to extraordinary work of James Lawson and Ella Baker, propelling new “awakenings” of moral and political fervor.<a href=”https://conlaw.jotwell.com/mississippi-goddam/#easy-footnote-bottom-1-2141″ title=”See Clayborne Carson, In Struggle, Pp. 19-29 (2d ed. 1995); regarding Baker in particular, see Eddie S. Glaude, We Are the Leaders We Have Been Looking For, Pp. 78-107 (2024); regarding Lawson, see James M. Lawson, Jr., Revolutionary Nonviolence (2022)).” target=”_blank”>¹ The force thus pointed and powered diversified tactically – freedom rides and voter registration efforts; later great nonviolent marches perceived alternately as liberating or obstructive, arrests and confinements dramatically seized upon affirmatively. The King-led Birmingham demonstrations were complicatedly “exemplary” – his own jailing and his writing there legendary, Bull Connor’s dogs and fire hoses internationally pictured, dangerous theater of black children running happily into white shopping areas (with King rightly worried sick) – we know all this and much more. Together reconstituting: grand scale street politics emergent, prefiguring later famously triumphant Washington, D.C., and Selma marches, for example. There was also sharp opposition, we know too, itself assertedly counter-constitutive.

Distinctive constitutional law marches on stage too, we might also think. Remarkable United States Supreme Court interventions inserted themselves within this melee, ambitiously and aptly. These decisions still remain, ready to be read and seized, as Terry supposed so juxtaposing Rawls in 1971 and King in the mid-1960s. Are these too exemplary?

— In New York Times v. Sullivan, still familiar today, the Court displaced Alabama defamation law giving broad discretion to juries in civil suits to judge allegedly false statements and to fix damages of whatever amount, however large. In the case itself this was an economic atom bomb ready to explode (it would have seemed), available to ruin financially the civil rights organizations and organizers sued, also deter national news media coverage of civil rights campaigns. Unconstitutional? Subtler: Writing in Sullivan Justice Brennan preempted Alabama jury latitude, in effect copying extant common law in other states (Thomas Cooley’s post-Civil War torts treatise writing in part) closely constraining juries. This was Court-fashioned federal “constitutional common law” Henry Monaghan would later declare, the Supremacy Clause thereby armed and ready.

— Garrison v. Louisiana stressed Sullivan concerns, this time in reviewing a criminal libel conviction. Again Brennan, noticing a different, encompassing danger: “At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration.“ A terse footnote: “Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev, 1085, 1088-1111 (1942).” A large excerpt, over twenty years old in 1964. The passage Brennan cites and only abstractly summarizes is extraordinary. It is a clearly written, thoroughly researched, carefully detailed account of the extensive and systematic uses made of libel litigation by German National Socialists in the course of overwhelming ordinary democratic politics, seizing power and breaking down opposition. Brennan, we realize, wants his readers (those concerned enough to explore his citation) to remember Adolph Hitler, and remembering, to recognize within American constitutional law the need to prepare to protect recurringly democratic politics at large.

— Dombrowski v. Pfisterer: State and local police arrested Dombrowski and other civil rights workers for statutory violations, raided offices, and seized records and files. A state judge quashed the arrest warrants and suppressed the seized evidence. Officials continued to threaten prosecutions, a state grand jury returned new indictments, and officials also repeatedly proclaimed that Dombrowski’s Southern Conference Education Fund was a subversive or Communist-front organization. Individuals caught up alleged that “the threats to enforce the statutes … are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution … to harass … and discourage … asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” Justice Brennan once more: “Cf. Garrison …, 379 U.S. 64, 74-75….” The apparently pertinent passage in Garrison reaches back to Sullivan. “What we said of Alabama’s civil libel law … applies equally to the Louisiana criminal libel rule: ‘It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.’” “[A]n unjustified preference over the public they serve”? Garrison explained, ultimately integrating Sullivan’s fundamental proposition: “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our ‘profound national commitment to the principle that debate on public isues should be uninhibited, robust, and wide-open….’” The point of departure in Dombrowski, we realize, is not free speech or legal process per se, but a strong organizing model of politics that legal process might either hinder or secure. “Self-government” – implicitly equal, free of “unjustified preference” – is if so “uninhibited, robust, and wide-open.” The First and Fourteenth Amendments are both at work, back and forth. The constitutional preoccupation extends beyond particular individuals immediately asserting rights (it is in this sense “transcendent”). It contemplates contest as well; the interplay of speech of particular individuals including officials set within a larger population of other individuals potentially acting in support or opposition. If this interplay is both free and equal, it organizes and expresses a distinctively embodied politics: popular sovereignty constituted  within conflict.

Professor Terry ultimately sets aside romance and irony as civil rights harmonics. But he holds on to tragedy.

I argue that tragedy offers a more philosophically serious and politically demanding mode of narrating black freedom struggles – one that foregrounds the reality of conflict, the contingency of action, the irreversability of loss, and the weight of responsibility. Tragedy, as I develop it here, is not despairing. It is a discipline of judgment; a way of seeing and feeling that does not deny hope, but refuses easy optimism. It reckons with the moral ambiguity of means and ends, the partiality of all victories, and the possibility that even the most courageous struggles can end in defeat without rendering their aims meaningless or their insights obsolete. (P. 322.)

Mississippi Goddam? Exemplaries and outrages both?

1. See Clayborne Carson, In Struggle, Pp. 19-29 (2d ed. 1995); regarding Baker in particular, see Eddie S. Glaude, We Are the Leaders We Have Been Looking For, Pp. 78-107 (2024); regarding Lawson, see James M. Lawson, Jr., Revolutionary Nonviolence (2022)).