the issue of racial preferences was hammered out in the political process in 1964. This occurred both in Congress and in the 1964 Democratic presidential primaries. In fact, the political struggle over civil rights legislation that year was perhaps the most intense legislative battle of the last century.
In Congress, as Trunk points out, our representatives included strong anti-preference language in both Title VI and Title VII. Without that language, the Civil Rights Act would not have passed. The original version of Title VII (which deals with employment) contained no provision that prohibited preferences for minorities. The prospect that the Act might result in such preferences became the centerpeice of the filibuster against the legislation. In those days, it took a two-thirds vote to end a filibuster. With the Democrats from the south firmly lined up behind the filibuster, the sponsors of the Act desperately needed Republican support. But neither the Republicans nor the moderate and border state Democrats were about to support a bill that could be portrayed as permitting discrimination against whites. Thus, the liberal sponsors of the legislation, led by Hubert Humphrey, were forced to add anti-preference language, which Humphrey touted with characteristic fanfare. Unfortunately, as Trunk points, the Supreme Court has willfully ignored this language, and Humphrey’s emphatic supporting pronouncements. I was at the Court when the Weber case was argued. When Weber’s lawyer quoted Humphrey, a smirking Justice Blackmun asked him how he thought Humphrey would vote in the case. The lawyer didn’t give the correct answer, namely that it doesn’t matter how the Hump would vote; it’s the language he had to agree to and the statements he had to make to get the law enacted that count.
The issue of preferences also took center stage in the 1964 Democratic primaries that took place as Congress was debating the civil rights act. That spring, George Wallace ran in three key non-southern primaries — Wisconsin, Indiana, and Maryland. In each, he faced a “favorite son” or surrogate candidate, who pledged to give his delegates to President Johnson (apparently too gutless to face Wallace himself, just as he wouldn’t face Gene McCarthy four years later). My high school civics teacher attended a Wallace rally in Maryland and brought his campaign literature to class. Wallace’s biggest theme — ahead even of school busing — was that the pending civil rights legislation would result in discrimination against whites. The Wallace campaign was amazingly successful. In Maryland, if memory serves, he captured a majority of white Democratic votes and about 45 percent of all Democratic votes. Results like these struck fear in the hearts of liberal Democrats and reinforced the urgency of including anti-preference language in the civil rights bill. The need was now two-fold: (1) to prevent further embarrassment to the president and (2) to make sure that northern and border state Senators could support the legislation without being victimized by white backlash (to use the popular phrase of the day).
So, yes, this issue was worked out through the democratic process. Unfortunately, the result of that process has been overturned by the undemocratic combination of our robed masters and our gowned masters.
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