by Howard Zinn
The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care.
Using this decision, the government could ask the federal courts for a sweeping set of injunctions to guard the rights of Americans in the Deep South. In the end, whether the government interprets its own powers narrowly or broadly depends to a great extent on the degree of its compassion for the victims of injustice.
A group of SNCC workers in Mississippi, along with white Mississippi lawyer William Higgs, in an unprecedented and imaginative legal action, have sought a court order to force the Department of Justice to take strong protective action in that state. That suit, officially called Moses v. Kennedy (Robert Moses v. Robert Kennedy), was turned down in the District of Columbia federal court, but is being carried to a higher court.
There is an additional problem which the civil rights movement in the South faces. Any action for injunctions or any move in the federal courts to restore constitutional rights to citizens can be swiftly blocked as long as judges with strongly-entrenched segregationist beliefs sit on federal courts. Here is one area where the President has great power to change the status quo, since he is authorized by the Constitution to appoint federal judges. Unfortunately, the appointments made by President Kennedy, in precisely those years when the civil rights struggle reached its height and court decisions were so crucial, were a great disservice to the cause of racial equality. As the Southern Regional Council suggested, if the President could not secure Senate approval for his appointments, he could leave the seats vacant to dramatize the issue.
Kennedy was just not bold enough to break the tradition of getting the approval of Southern segregationist Senators in the appointment of federal judges; thus, again and again, he appointed racists to sit on federal courts in the South.
In Georgia, he appointed J. Robert Elliott, an old member of the Talmadge machine. Elliott once said, before he became a judge (as reported in the New York Times): “I don’t want these pinks, radicals and black voters to outvote those who are trying to preserve our segregationist laws and other traditions.” But more important, as soon as he came to the bench, he acted to deprive the Albany Movement of its rights of peaceful protest, and to deny repeatedly its requests to enjoin interference with peaceful constitutional activities.
In Mississippi, Kennedy appointed William Cox to the federal bench, at the suggestion of Senator James Eastland. Cox consistently refused to rule that discrimination was being used against Negroes in Mississippi. In one case, in March, 1963, he said (the New York Times reported): “… I am not interested in whether the registrar is going to give a registration test to a bunch of niggers on a voter drive.”
In Alabama, Kennedy appointed Clarence W. Allgood, who ruled that it was legal for the Birmingham school board to expel 1100 Negro children from schools because they joined desegregation demonstrations.
In Louisiana, he appointed E. Gordon West, who reluctantly ordered an East Baton Rouge school board to present a desegregation plan, but wrote (as reported in The Boston Globe): “I personally regard the 1954 holding of the United States Supreme Court in the now famous Brown case as one of the truly regrettable decisions of all times.” Another Kennedy appointee in Louisiana, Frank Ellis, joined West in holding constitutional a Louisiana law requiring that the race of candidates be put on the ballot in elections.
Furthermore, Attorney General Robert Kennedy publicly defended, in the spring of 1963, the Administration’s appointment of Southern segregationists to federal judgeships. He said: “I’m very proud of the judges that have been appointed. We looked into all of them for questions of integrity and whether they would uphold the law of the land.”
If it were not for the Fifth Circuit Court of Appeals, which can review decisions by lower courts in these states, there would be real trouble enforcing the Fourteenth Amendment. But the fact that a civil rights attorney must wait so often until a case gets through the district court and up to the Fifth Circuit results in crucial loss of time, while the lives and liberties of people are in peril. It is essential that the President of the United States begin appointing judges in the South who will support the “equal protection” requirement of the Constitution of the United States.
It is the executive branch of the government—the President, the Attorney General, the Civil Rights Division of the Department of Justice—which has now the main responsibility for establishing the rule of law in the Deep South. The legislative branch did its job in 1866 when it passed the Fourteenth Amendment. The Supreme Court has made it completely clear by now what the Fourteenth Amendment means—that it makes illegal any kind of official action to support segregation and that it also protects the rights of free speech and peaceable assembly, as well as other First Amendment rights. From now on, the real job rests with the Executive.
Early in his administration, President Kennedy denied the need for a civil rights bill, saying that executive orders could do effectively what had to be done. He proved to be slow and cautious however, in this field, as his moderate and much-delayed order on housing showed. Kennedy delayed almost two years in signing this order, and then did not extend its coverage to all federally connected housing, as the Civil Rights Commission had asked. He also refrained from making comments on the moral issues involved in racial inequality. It took the severe violence in Birmingham in the spring of 1963 to arouse the President to an excellent, forthright statement on racism as a moral blight on the nation. Then, curiously, instead of being roused to sweeping executive action, he flung the responsibility at Congress, by putting a new Civil Rights Act into the works. After his tragic assassination, President Lyndon Johnson continued to put Congressional action, rather than executive responsibility, as the main issue before the nation, and the Civil Rights Act of 1964 became the focus of national attention.
What remained hidden from the American people was the fact that the already existing civil rights legishtion was not being effectively enforced, that important Supreme Court decisions were not being followed by strong presidential action. The Civil Rights Acts of 1957 and 1960, for instance, were specifically designed to end discrimination against Negroes in voting. They did not succeed, because the President and the Justice Department confined their enforcement actions to slow, cautious lawsuits. In that one area where the Attorney General did have specific statutory authorization, in voting, he did not act vigorously to enforce the law. Vivid evidence of that was given on Freedom Day in Selma, October 7, 1963, when a corps of F.B.I. men and Justice Department lawyers watched local policemen pull SNCC workers down the steps of a federal building and jab others with electric prod poles because they were bringing food to Negroes waiting in line to register.
Additional proof that the crucial problem is enforcement comes from the fact that the legislative basis for preventing discrimination on railroads and in railway terminals goes back to the Interstate Commerce Act of 1887, that the courts made the point very clear in the 1940s and 1950s, and that a specific I.C.C. regulation went into effect November 1, 1961. Yet, from the very first day that regulation existed, and continuing into 1962, 1963, and 1964, the executive branch of government proved unable or unwilling to enforce the law effectively (the brutal beating of the group in Winona, Mississippi in 1963 after they had used the white waiting room was only one extreme instance of this).
A dispatch from Canton, Mississippi, datelined February 29, 1964, by Claude Sitton of the New York Times, pointed up the inability of the law alone, unaccompanied by strong executive action, to guarantee voting rights to Negroes. Sitton quoted Dr. Leslie Dunbar, head of the Southern Regional Council, as saying: “The reality is that, to the Negro in Mississippi, the law is still the law as enforced by the sheriff, not the law that comes out of Washington.”
Sitton wrote about the Civil Rights Act of 1964: “The basic objection raised to the new legislation is that the task of e
liminating discriminatory practices would still be left to the Federal courts. Thus it represents no departure from the underlying principle of the Civil Rights Acts of 1957 and 1960.” He went on to report a white citizen of Canton as saying that Negroes would continue to be barred from voting despite the new Act “unless Kennedy comes down here with some Federal marshals.”
There are advantages to having a new Civil Rights Act spell out clearly what needs to be done in certain areas of discrimination, and once it is passed it creates even more principles whose enforcement can be publicly demanded. No one of equalitarian views is opposed to a Civil Rights Act. But it should not be used as an easy out for any administration which, pressed to take action, points to its accomplishment in getting something through Congress, while the provisions languish in the law books for lack of effective enforcement. The tremendous publicity given in 1963 and 1964 to the Civil Rights Act had one unfortunate effect: it diverted the attention of the public from the fact that the crucial problem in civil rights is not one of legislative enactment but of executive enforcement.
There is another serious disadvantage to proposing still another Civil Rights Act, and that stems from part of our judicial heritage. Constitutional tradition is that the president of the United States has almost limitless authority to act to enforce the Constitution and protect the welfare of Americans, even in the absence of specific legislation, provided Congress has not specifically barred such acts or rejected them as legislative proposals.
For instance, the Attorney General, on the basis of sound constitutional doctrine, already has the power to sue in court to defend any citizen’s constitutional rights against attack. But if Congress discusses a provision to give him this specific power in police brutality cases, and if it then rejects the provision, it would be easy for Southern officials to argue in court that the Attorney General’s power in this regard does not exist. Yale Law School Professor Alexander Bickel has pointed out, for instance, that the housing provision in the new Civil Rights Bill, because of what it excludes, actually weakens a power that the President had before the bill was proposed.
After first arguing with civil rights workers that the Justice Department simply did not have the statutory authority to go into court to protect them against police brutality, the Kennedy Administration omitted such a provision from its proposed Civil Rights Bill. When a subcommittee of the House inserted this authority into the bill, Attorney General Robert Kennedy went before it, in October of 1963, to argue against its inclusion, and it was removed.
One of the passages in John Lewis’ March on Washington speech was: “There’s not one thing in the bill that will protect our people from police brutality. This bill will not protect young children and old women from police dogs and fire hoses for engaging in peaceful demonstrations.…” There is strong support for injunctions in the letter which Professor Charles Black of Yale Law School wrote, in 1963, to Senator Jacob Javits of New York. Black said he believed that without new legislation the administration already had the authority to use the courts against police brutality and other violations of constitutional rights. He added:
I do not know why the Justice Department will not try this course. A cynic might suspect that what they are afraid of is that the Supreme Court would sustain the thesis that a government may invoke the equity process of its own courts to enjoin massive and widespread violations of its fundamental law—and that having been held to such a power, the administration would then be expected to use it.
In the spring of 1963, a group of distinguished lawyers and other social scientists gathered at Notre Dame University to discuss civil rights. Their conclusions, which did not command national attention to the extent they deserved, are particularly pertinent to the problems we have discussed in this chapter. In the field of voting discrimination they said:
… the Notre Dame Conference strongly believes that additional legislation is not a sufficient remedy. The problem is neither nation-wide nor region-wide. The condition which requires federal attention is the lawlessness that exists in a relatively small number of outlaw communities of the Deep South. This condition does not pose an issue of federalism. Federalism is a system of divided power among governments, and governments are instruments whose whole purpose is to establish an order oflaw. In these outlaw communities where citizenship rights are flagrantly destroyed, there is no law to respect. We have here, in short, a problem of enforcement.…
Referring to those “outlaw communities” of the South where Negroes are denied their voting rights, the Notre Dame Conference said:
New and more refined legislative remedies are not required to reach this blatant disregard of rights. To contain and disarmlawlessness, a clear federal presence is required at the first outbreak. We think the Attorney General has the power, in the face of detennined lawlessness supported by an acquiescent or conspiratorial community, to send federal marshals and agents of the Federal Bureau of Investigation for on-the-spot protection of the exercise of federal rights… and to make arrests for violations.
Martin Luther King, Jr., writing in The Nation in the spring of 1964, also pointed to the need for Executive action, and urged the use of federal marshals to enforce the law. In the stories of the old West, he pointed out, which are still shown on movie screens and on television, the marshal who came into a lawless territory and brought justice to it was a hero, and can be that again. He contrasted the sacrifices made by the Negro and the response of the national government:
Negroes have marshaled extraordinary courage to employ nonviolent direct action; they have been left—by the most powerful federal government in the world—almost solely to their own resources.… We are nearing the year 2000 and our national power almost defies description. Yet it cannot enforce elementary law even in a dusty rural Southern village.
Northern liberals who are afraid to use federal power in the Deep South for fear it will result in Civil War give little credit to the good sense of the white Southerner. Given a definite rule of law, the average white Southerner will obey it. Only a tiny minority can be led to use violence to maintain the old system in the South. The vast majority, as has been shown in hundreds of instances of desegregation in the South, will perhaps grumble, but will adapt to the new order of things. The few who attempt forceful resistance can be contained by a firm use of federal power—not federal troops sent in military array in a time of high tension, but a permanent, cool, firm federal presence using a combination of persuasion and threat of prison to make clear that all citizens are equal before the law.
Probably the most shameful act of the Department of Justice in the recent history of civil rights crises was its prosecution of nine civil rights workers in Albany, Georgia, in late 1963, following the picketing of a white grocer’s store. As John Lewis said, in his March on Washington speech:
In Albany, Georgia, nine of our leaders have been indicted not by Dixiecrats but by the Federal Government for peaceful protest. But what did the Federal Government do when Albany’s Deputy Sheriff beat Attorney C. B. King and left him half-dead? What did the Federal Government do when local police officials kicked and assaulted the pregnant wife of Slater King, and she lost her baby?
The vigor and relentlessness with which the Justice Department pursued this prosecution was a startling contrast to its inaction in defending Albany Negroes against brutality and illegal arrest. More than thirty F.B.I. agents were used; there had never been that many in evidence during the mass arrests in Albany.
The Albany indictments were based on the fact that civil rights workers in Albany had picketed the store of a white man who had served on a federal jury. That jury, all white, had just dismissed a civil suit brought by Negro Charlie Ware against Sheriff Warren Johnson of Baker County, after the sheriff shot him through the neck while Ware was in his custody. The picketing was to punish the grocer for his vote on the jury, said the federal government. Hence they charged Dr. William Anderson and two other members of the Albany Movement with conspi
ring to obstruct justice by that picketing. They charged five other leaders of the Albany Movement, including Slater King and Eliza Jackson, for denying they were at a meeting in their lawyer’s office to discuss the grand jury hearings. And they indicted Antioch College student Joni Rabinowitz for perjury for saying she was not at the picket line, did not see the picketing, did not know about the picketing.
Eventually all the defendants who were tried were found guilty except Dr. Anderson, whose trial resulted in a hung jury. They were sentenced to various jail terms and fines, but in the fall of 1963 the convictions were being appealed and the Department of Justice was becoming more and more embarrassed at the expressions of indignation by many Americans.
For an administration avowedly dedicated to the cause of equality before the law, the Department of Justice behaved strangely in the Albany cases. When defense attorneys argued at pre-trial hearings that their clients were not likely to get fair trials from all-white juries in Georgia, the Department of Justice—which had in many instances explained its reluctance to prosecute brutal Southern policemen on the ground that all-white juries would not judge the issue fairly—now insisted that these trials would be fair. And when each jury was selected, the government of the United States by peremptory challenge got rid of the only Negroes drawn from the panel, thus ending with an all-white jury.
Civil rights lawyer William M. Kunstler called the trials “a bone thrown to the segregationists” by the Administration. And in a critical analysis of the government’s action, Attorney Shad Polier of the American Jewish Congress called it all “a misuse of the power of the Federal Government to pander to local prejudice.” John Lewis’ delivered remarks at the Washington march omitted this sentence which was in the original speech: “It seems to me that the Albany indictment is part of a conspiracy on the part of the Federal Government and local politicians in the interest of expediency.” That was a harsh way of putting it, but it was very close to the truth.
