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

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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."

Kilpatrick's concern was not simply purity of principle though; he was frank to say it was the purity of the white race. "What has man gained from the history of the Negro race?" he wrote in 1957. "The answer, alas, is 'virtually nothing.'" When the founders of the segregationist Prince Edward Academy fell short in assembling a library needed for state accreditation, Kilpatrick donated his own books to make sure that the all-white school could open on schedule. As late as 1964 he wrote an article for The Saturday Evening Post arguing that "the Negro race, as a race, is in fact an inferior race." Mercifully, in view of violence against black people in the South, the editors spiked this piece.

Which brings us to Kilpatrick's legacy. "Kilpatrick, by propagating a whole vernacular to serve the culture of massive resistance -- interposition, nullification, states' rights, state sovereignty -- provided an intellectual shield for nearly every racist action and reaction in the coming years," Pulitzer Prize-winning authors Gene Roberts and Hank Klibanoff wrote in their 2006 book, The Race Beat.

Ideas have consequences, conservatives like to say. Kilpatrick's racist ideas legitimized the worst kind of hatred, and his constitutional doctrines gave cover to defiant Southern governors like Orval Faubus and George Wallace.

But Kilpatrick never quite faced up to his. In later years he admitted that his racism was a bit much. But he rewrote his own history to make himself a moderate. ("I ardently supported [the Voting Rights Act of 1965] because I knew, as only a white Southerner can know, what chicanery my people had employed to prevent blacks from voting," he wrote in 1988. In 1965, however, he was actually denouncing that Act for striking "with the brute and clumsy force of a wrecking ball at the very foundations of American federalism.")

The evil that men do lives after them. Kilpatrick's ideas echo in the rhetoric of figures like Arizona state Sen. Russell Pearce, Texas Gov. Rick Perry, and Virginia Atty. Gen. Ken Cuccinelli. They want to break the nation into 50 kingdoms, where local majorities can stigmatize and segregate the groups that they don't like, where the federal commerce power cannot protect citizens' health and safety, where federal civil rights laws cannot reach intransigent local sheriffs and mobs.

We've been here before, not just once but several times. After the Civil War, we let ourselves forget the agony that "state sovereignty" had inflicted. After "massive resistance," we rewrote the history to make Martin Luther King a toothless windbag and Jack Kilpatrick a beloved uncle. Now it may be happening a third time. The constitutional dialogue has turned toxic; we need to remember that where "sovereignty" and "interposition" appear in public discourse, they are usually quietly escorted by racism and intolerance.

Historical memory is our only protection. Sadly, that requires some harsh words in an old man's obituary. But the alternative is worse.


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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, and is the author of American Epic: Reading the U.S. Constitution.

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