James J. Kilpatrick and the Soft-Focus of Historical Memory

Americans honor history not so much by forgetting it as by turning into a Disney movie. Nothing too scary, nothing ambiguous, above all nothing shameful. The Civil War was a big mistake that really had nothing much to do with slavery. The internment of the Japanese and Japanese American was a forgivable burst of enthusiasm. Segregation was a slight breach in manners; Martin Luther King was a jolly cross between Polonius and Santa Claus.

I thought of this national foible this week when American journalism gave a tender sendoff to conservative commentator James J. Kilpatrick, who died Sunday at the age of 89. The Washington Post called him "one of the most popular and eminent conservative writers of his generation." The New York Times said that "when he was not tackling national issues, he took aim at flabby prose and bureaucratic absurdities." His main contribution to national life, one would think from reading the obituaries, was "in-your-face, conservative bickering with liberal commentator Shana Alexander" that gave rise to Dan Ackroyd's famous line, "Jane, you ignorant slut."

To be sure, most obituarists rather diffidently praised Kilpatrick for moving away from his earlier segregationist views, which were then forgotten in a burst of admiration for his writings on grammar and usage.

Almost none of the obituaries noted that he did terrible damage to the United States Constitution--damage for which he never even weakly apologized, and which continues to do harm to the national dialogue today.

Kilpatrick's death comes in the midst of a new burst of pseudo-constitutional ugliness--with attacks on religious freedom, birthright citizenship, and federal civil-rights protections increasingly dominating the right-wing airwaves and the blogosphere. As I watch governors "reclaim" their state's "sovereignty" and legislators attack newborn children as "anchor babies," I am flooded with a sick déjà vu. I lived through this once before; and in that earlier cantata of hate, Kilpatrick was one of the choirmasters.

Jack Kilpatrick was my hometown newspaper editor during my childhood in Richmond, Virginia. I never met him and have been given to understand that he was a genial soul. But in print he was a racist dragon. His writings were hateful, but more than that, they were effective. Almost single-handedly, Kilpatrick laid the intellectual foundations for "massive resistance," the extremist Southern strategy of defying the Supreme Court by closing public schools to thwart court desegregation orders.

When Brown v. Board of Education was decided in 1954, a remarkable number of Southern leaders quietly expressed a willingness to comply. As segregationists, they weren't pleased; but the rule of law called for obedience to the Court.

A few, the most dedicated racists, would have none of it. "Segregation today, segregation tomorrow, segregation forever!" George C. Wallace memorably proclaimed. Wallace was a vulgarian; but the intellectual leader of the "segregation forever" movement was James J. Kilpatrick. Using the editorial columns of The Richmond News Leader, he made Virginia and then the South too hot to hold any white leader who talked of compromise.

Kilpatrick supplied a constitutional theory to justify defiance, and it is one that will seem familiar to anyone who follows the Tea Party movement today. The Supreme Court's interpretations of the Constitution were wrong--not just in Brown, he explained, but ever since 1803. "The sovereign states," not individuals, were the only important citizens of the Union. When the federal government, or the Supreme Court, overstepped its bounds, states could simply "interpose" their authority and nullify their orders. The Fourteenth Amendment (which was probably not valid anyway) did not provide for racial equality. The Tenth Amendment guaranteed state "sovereignty." The United States of 1954 was the United States of John C. Calhoun, "unchanged by John Marshall, unchanged by the Civil War, not altered in any way since the Constitution was created in 1787."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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