America's Death Penalty: Between Past and Present

6 Interposition: Segregation, Capital Punishment, and the Forging of the Post–New Deal Political Leader

166 | 6 Interposition Segregation, Capital Punishment, and the Forging of the Post–New Deal Political Leader Jonathan Simon Introduction: From the New Deal to the “Crime Deal” via the Politics of Race Historians and political scientists have long viewed Franklin Roosevelt’s “New Deal,” as a watershed period in American political development that created a fundamental new political order, one that dominated politics and transformed American governance for at least forty years from roughly 1936 to 1976.1 More recently sociologists of punishment have suggested that the roots of America’s turn toward hyper-punitive mass incarceration policies since 1980 mark the emergence of a post–New Deal political order, formed in large part around fear of crime.2 Crime, or fear of crime, became a key construct, and the crime victim, a key figure, around which the fragmenting political contradictions of the New Deal order could be realigned and reframed. Perhaps the most famous of these contradictions was race. The New Deal coalition had held together in the Democratic Party by subordinating the issue of racial inequality to the issues of economic opportunity. Once the Civil Rights movement pushed the national government for effective action on civil rights, first through the courts and then through Congress and the presidency , this coalition began to come apart. At the national level President Lyndon Johnson understood that signing the Civil Rights Act of 1964 probably lost the South for the Democratic Party for a generation, whereas Republican politicians like Richard Nixon and Ronald Reagan saw these opportunities to pick up votes by signaling a willingness to soften civil rights enforcement. At the same time leading supporters of Jim Crow segregation policies in the South saw in fear of crime, and demands for tough “law and order” policies, a way to recast their opposition to federal policies, from a southern-only defense of segregation to a national defense of citizens against crime.3 Interposition | 167 As political scientist Vesla Weaver4 suggests, a full understanding of these sea changes in American political order requires attention below the national level to state-level politicians. The creation of a post–New Deal political order around fear of crime required the transformation of statelevel political organizations. Political leaders, shaped to govern through New Deal mechanisms, needed to find new political footing. For crime to be that footing required more than simply rising public concern about crime (even assuming it preceded political initiatives). It also required that those leaders find a way to interpolate themselves into an issue, long dominated by local political figures (prosecutors and judges). This chapter explores the path of the governor from a little “New Deal” executive derivative of the national government in Washington to a dominant executive in a post–New Deal order based on fear of crime and in which the governors have regularly dominated over Washington. Key to the story is the proximity of both segregation and capital punishment as important legal challenges to state authority during the pivotal decade from 1954 to 1964. Entering this decade, promising New Deal–style governors focused on building up a new political power base around welfarist New Deal policies were emerging both in the North and South. Beginning first with segregation , but soon thereafter with capital punishment, constitutional attacks to state authority on social issues with strong populist appeals across traditional economic boundaries posed a powerful political challenge to these little New Deal leaders. In the South governors like Faubus (Arkansas) and Wallace (Alabama) abandoned their appeal based on welfarist social policies to one based on an unapologetic defense of segregation. Although their association with segregation prevented them from rising to national power (although Wallace tried), their ability to cast their mission as one of defending citizens against the unconstitutional excesses of courts, a legal theory loosely known as “interposition,” gave them a new logic of appeal distinct from racism itself (and one readily transferable). In the North governors like Mike DiSalle (Ohio) and Edmund “Pat” Brown (California), who as yet faced no problem with segregation (those lawsuits come later), and who were well posed to push the limits of a welfarist governance (think of Brown’s investment in the University of California system), found themselves tangled in a formally unrelated (but culturally and politically probably quite related) issue, that of capital punishment. Unable to convince divided publics to embrace abolition , both governors ended up damaging their political standing and ultimately lost elections before promising national political careers could begin. A few years later...