by Howard Zinn
The ordinary citizen of the United States might claim ignorance of what is happening in the Deep South—as many ordinary Germans claimed not to know of the death camps. But the national government cannot say it is ignorant. Hundreds upon hundreds of affidavits have been filed with the Department of Justice, crying out for redress of grievances, with no results. Phone calls have been made again and again to the F.B.I. or the Justice Department from civil rights workers in desperate need of immediate protection, but have gone unheeded. Requests for protection, made in advance of anticipated trouble, have been consistently refused. Justice Department attorneys have watched and done nothing (as in Selma) while local police arrested citizens who were standing peacefully on federal property. Men from the F.B.I. have stood by and watched (as in McComb) while policemen gave bloody beatings to citizens who were breaking no law, while (as on the Freedom Walk) state patrolmen administered electrical shocks to men who had committed no crime.
Every time a policeman willfully commits an act of brutality against a citizen, deprives him of the equal protection of the laws, of freedom of speech or peaceful assembly, or any other constitutional right, he is violating a federal law. That is the Enforcement Act of 1870 which supplemented a Civil Rights Act of 1866, and is written into the statute books as Section 242, Title 18, of the U.S. Code. The statute reads:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States… shall be fined not more than $1000 or imprisoned not more than one year, or both.
Despite hundreds of violations of this act, only in a few instances have Department of Justice attorneys initiated prosecution under it. One of their arguments is that they are reluctant to prosecute because all-white juries in the South will not convict a policeman accused of beating a Negro. This amounts to a virtual admission by the national government that it is powerless to execute its own laws. A barrage of prosecutions, even if they did not result in a verdict of guilty, might have a healthy deterrent effect. The Department might begin to think imaginatively of judicial devices to get Negroes on Southern juries, or even to remove cases to federal courts in other jurisdictions.
The Justice Department is full of arguments against using Section 242, but none of them stand up under close examination. They point to the difficulty of even getting an indictment. But since the crime is a misdemeanor an indictment is not necessary; the trial can take place simply by the filing of “an information.” They point to the interpretation of Section 242 in the Screws Case, in which a Baker County, Georgia, sheriff beat a Negro to death, and where the Supreme Court ordered a retrial. But that was in 1945, almost twenty years ago; we are living in a new time, we have a new Supreme Court, and there is an excellent chance of getting new interpretations of this statute, if only the Department of Justice would try.
Section 242 can also be used in cases where violence is done by private persons with the connivance or approval of law enforcement authorities so that all those instances where beatings have taken place in Southern prisons, in the presence of policemen, could lead to prosecution. But the Department of Justice has taken no action on these cases.
Another statute which the Justice Department could use is Section 241, Title 18, which makes it a crime punishable by as much as $5000 or ten years in jail if “two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” This could be a powerful weapon against not only public officials but private parties who act to deprive the Negro or anyone else of constitutional rights. But it has not been employed.
Sections 241 and 242 enable prosecution of those who have already broken the law, and this usually takes place long after the damage is done. But there is nothing to prevent either the F.B.I. or federal marshals, if they are on the scene while the violation is taking place (as they have been many times), from arresting the violator on the spot. Section 3052, Title 18, of the U.S. Administrative Code was amended in 1951 to give F.B.I. agents the same power which United States marshals have, to make arrests without warrants “for any offense against the United States committed in their presence.” Curiously enough, the F.B.I., which makes arrests in kidnapping cases, bank robberies, drug cases, espionage cases, etc., does not make arrests on the spot in civil rights cases. It would appear that not only are Negroes second-class citizens, but that civil rights law is second-class law.
For instance, when Sheriff Jim Clark marched across the street in Selma towards the federal building where two SNCC workers were standing on the steps with voter registration signs, one of the Justice Department attorneys or one of the F.B.I. men who were standing right there should have stepped in the way, and informed Sheriff Clark that standing on the steps of the federal building was a constitutional right, and that interference with this would constitute a crime. If the Sheriff persisted, he should have been taken into custody immediately. Thus far, no Southern official—whether Governor Barnett of Mississippi or Governor Wallace of Alabama or Registrar Lynd of Forrest County—has defied the federal authorities when faced with the possibility of arrest.
The Federal Bureau of Investigation has proved to be incapable of dealing with the civil rights crisis of the 1960’s, and absolutely ineffective in defending American citizens against intimidation and violence in the Deep South. Time and again SNCC people have found that F.B.I. agents were cold, unresponsive, and at times hostile.
The Civil Rights Commission, in its 1960 report, Justice, pointed out that the F.B.I. is often tied closely to local policemen because of their association in the solution of ordinary crimes. The Commission suggested that perhaps another agency might be used to enforce civil rights law. Moreover, SNCC workers have found that F.B.I. men in the South often share the segregationist views of the people around them; this is reflected in the lack of enthusiasm which F.B.I. men show in handling civil rights cases. Mrs. Fannie Hamer once told an F.B.I. agent, “If I get to heaven and I see you there, I will tell St. Peter to send me on back to Mississippi!”
But the real problem goes beyond the F.B.I., to the Department of Justice, the Attorney General of the United States and up to the President of the United States. What the president could do is create a special force of federal agents in the Deep South (and in other parts of the country when they are needed; violations of constitutional rights take place in the North as well). These agents would have one specific function: to defend the constitutional rights of any person against private or official action.
They would be present at all demonstrations; they would be subject to immediate calls for help; they would have the power to intercede whenever there was good reason to believe that a local official was violating someone’s rights. And while they would be trained to use persuasion and mediation, they would have the power also to make on-the-spot arrests in the event of a violation of federal law. In addition, every local police station in the country might have a “hot line” direct to the regional federal agents’ office, so that a person arrested could get help immediately if needed.
The Department of Justice has been reluctant to use its full powers to protect persons in the Deep South from invasion of their constitutional rights. Early in 1963, a letter was sent by John Pemberton of the American Civil Liberties Union to Mr. Burke Marshall, head of the Civil Rights Division of the Department of Justice, asking why the Department had refused to supply marshals or F.B.I. men requested for protection by persons involved in civil rights work. Marshall replied:
… in regard to your query as to why the Department does not supply federal protection when requested, it is appropriate to observe that the responsibility for preservation of law and order, and the protection of citizens against unlawful conduct on the part of
others, is the responsibility of local authorities.
What this statement amounts to is a withdrawal of the national government from its responsibility to enforce its own laws. If local officials respected federal law, then the national government could leave the field to them. But because in the Deep South—and often elsewhere—local officials have repeatedly and flagrantly violated federal law, it is the responsibility of the President, as directed by Article II, Section 3 of the Constitution, to see “that the laws be faithfully executed.”
Another high official of the Justice Department, Deputy Attorney General Nicholas Katzenbach, told a Boston College audience in April, 1964, that civil rights workers would have to depend on state and local officials to protect their rights, that “to do anything else would be making major changes in the federal system.” Civil rights groups, he said, “through despair or ignorance of the federal system seek to invoke the power of the federal government to enforce personal rights.”
Oddly enough, the civil rights workers would seem to have a clearer comprehension of the federal system than Mr. Katzenbach who, along with Mr. Marshall, keeps citing the delicate balance between state and nation in our federal system as an excuse for unchecked police tyranny. The truth is that the President and the Department of Justice have not been observing the constitutional requirements of that balance. When the Fourteenth Amendment was passed, a hundred years ago, it made explicit what was implied by the loss of half a million lives in the Civil War; that henceforth state and local governments could not deal with their inhabitants unrestrained by national power.
The purpose of the Fourteenth Amendment and of the Civil Rights Acts passed at the end of the Civil War was precisely to make sure that local officials could not deprive persons of their rights and to put such rights within the protection of federal authority. What happened then was that Northern politicians and Southern politicians got together in 1877 and put a definite end to Reconstruction by the Compromise of that year, agreeing, in effect, that the national government would from that time on leave the Negro in the hands of the white South.
As C. Vann Woodward put it in his book Reunion and Reaction, the Compromise of 1877 “did assure the dominant whites political autonomy and non-intervention in matters of race policy.…” The Compromise, which amounted to an abdication of the government’s responsibility to enforce the Constitution, has been observed by every American President for a hundred years. What SNCC and other civil rights groups are asking is that some President finally show the political courage in Washington that Negroes and their white supporters are showing in the Deep South and repudiate the 1877 Compromise for all time.
In Marshall’s letter to Pemberton, he noted that “this Department has utilized necessary force to suppress disorders so general in nature as to render ineffectual the efforts of local authorities to protect citizens exercising federal rights.” He was referring, apparently, to the dispatch of troops at times of intense crisis: by Eisenhower to Little Rock in 1957, and by Kennedy to Oxford, Mississippi, in 1961.
The response of the federal government to the civil rights crisis has been on two levels. It has initiated over forty suits in federal court designed to end voting discrimination in the South. These suits have been too few, too weak, too late, and ineffective in ending voting discrimination. The second type of action has been that referred to above—the dispatch of troops in major crises. What has been missing, however, is a third kind of action, and the most important of all: day-to-day protection of Negroes against infringement of their liberties by the establishment of a permanent federal presence in the Deep South in the form of special agents, as we have pointed out above. (The small number of prosecutions under Section 242 initiated by the Department of Justice does not meet the problem.)
The President already has the authority to create such a force, using the same statute which empowers him to send troops to trouble spots. That is Section 333, Title 10, of the U.S. Code, which says:
The President, by using the militia or the armed forces, or both, or by any other means (my emphasis), shall take such measures as he considers necessary to suppress, in a State, any… domestic violence, unlawful combination, or conspiracy, if it… opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.…
It is precisely because the day-to-day protection is missing, and because the legal action brought by the Department of Justice is so ineffectual, that major crises occur which then require the use of troops.
The creation of a federal presence in the South will act as a deterrent to official lawlessness. Policemen, deputy sheriffs, and local officials must know that they will be immediately locked up in a federal penitentiary upon evidence that they have violated federal law in actions against citizens. Habeas corpus and due process will be accorded them, but they will face what thousands of innocent people have endured up to now: the burden of raising bail money, of physically getting out of jail, of waiting for slow judicial processes to take effect.
There is no purity of choice before the nation. Either we put up with jailing and brutality for tens of thousands of Negroes and whites who have done nothing but ask for rights asserted in our Constitution, or we put into jail—without brutality—enough local policemen and state officials to make clear what the federal system really is.
In liberal circles there is genuine trepidation about the creation of such a federal power. But there was similar concern when the New Deal was born, with its stringent federal regulation of economic activity, until people realized that the absence of central power may simply leave the citizen victim to the greater tyranny of local or private power. It was the storm of economic crisis in the 1930’s that blew out of sight Jeffersonian caution in regard to federal power in economic activity. The nation learned that there is no necessary lessening of individual freedom with stronger central authority, so long as such authority is specifically confined to a limited field of action. With governmental power so overwhelming in our time, perhaps one tactic of defense for the otherwise helpless citizen is to exercise a kind of political judo, and turn the force of the state back upon itself.
Along with the establishment of a day-to-day federal presence in the South, what is needed is a bold use of the injunctive power by the Department of Justice. Injunctions could be extremely potent devices for protecting constitutional rights in the South. For one thing, they act to deter and prevent violations before they occur, because they are court orders, secured in advance, directing that local officials should not engage in certain activities. Also, if a policeman or sheriff or registrar or governor violated the injunction, he could be tried by the judge alone without the use of a biased Southern white jury.
In civil contempt cases, in which a person is jailed until he begins to comply with the court order (for instance, a registrar might be jailed until he registered Negroes in his county), no jury trial is required. And, as the Supreme Court ruled in the spring of 1964 in the case of Governor Ross Barnett, even in criminal contempt, where the person is jailed for a definite period, he is not ordinarily entitled to a jury trial. Besides, it is written into law that when the government gets an injunction, no trial by jury is necessary.
For instance, the government could go into the federal courts and secure injunctions to prevent policemen or any other officials from interfering with the right of free speech, or the right to distribute leaflets, or the right to picket peacefully, or the right to hold a peaceful demonstration, or the right to register to vote without intimidation. This would immediately place all state and local officials on notice that they would be sent to jail if they engaged in such activities. And with federal marshals or other agents at all trouble spots, immediate arrests could be made in the event of violations.
This most powerful device has been shunned by the Department of Justice. It has advanced the very conservative and narrow legal argument that it needs specific authorization in the form of a statute from Congress bef
ore it can go into court to ask for such injunctions. Indeed, its view is so conservative that one suspects the Justice Department does not want to have and to use such powers.
There is an important Supreme Court decision, the Debs Case, which has never been overturned, and which specifically asserts the authority of the national government to ask for injunctions in any case of constitutional rights being violated, whether or not Congress has passed a specific statute on it. As Jack Greenberg has written in his classic study, Race Relations and American Law:
While proposed legislation would give the Attorney General the right to seek injunctions on behalf of civil rights other than voting… he probably, even without explicit statutory authority, may use this procedure in nonvoting cases, as indicated by In re Debs (1895), something, however, he has never attempted.
Why, one might ask, has the Attorney General “never attempted” this course?
In the Debs case, the government secured an injunction against a railroad strike, though Congress had passed no statute giving it a right to ask for an injunction in such a case. But the Supreme Court said such an injunction could be issued because: “Every government, entrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance … whenever the wrongs complained of … are in respect of matters which by the Constitution are entrusted to the care of the nation.…”
The Supreme Court went on in the Debs Case to make an important statement. An Attorney General determined enough, or a President bold enough, could use that statement as a basis for any action to defend the Constitutional rights of Americans wherever they are threatened. The Court said:
