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Peter Johnston

8 April 2009

AP US History, p. 7

Should the Supreme Court of the United States Intervened in Southern Racial

Practices?

As the Civil War drew to a close and the United States moved forward

into Reconstruction, the United States Congress, and by extension the

American people, made a commitment to eventual racial equality when it

passed the 13th, 14th, and 15th Amendments, which granted, respectively,

the abolition of slavery, the extension of citizenship rights and equal

protection to all Americans, and the right to vote regardless of race. Yet

despite the idealism of the Congressional Radical Republicans, equality for

all men was not achieved. Conservative Democrats regained control of the

South, and through apartheid legislation and a powerful Congressional

filibuster, the South was able to legalize its unjust treatment of the black

population for nearly 100 years. As the highest judicial body in the nation, it

became incumbent upon the Supreme Court to intervene in southern racial

practices in order to guarantee that the Constitution was enforced.

Throughout the first half of the 20th century, Southern racial practices

were in flagrant violation of the 14th Amendment’s Equal Protection clause,

and it was very clear that the southern black population could not address its

grievances. After Reconstruction ended and federal troops withdrew from the

South in 1877, southern white Democrats quickly regained power. In the

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ensuing decades, southern legislatures implemented regulations, known as

the Jim Crow laws, which essentially contradicted the intent of the 14th and

15th Amendments, namely equal rights for all and the right to vote. The Jim

Crow laws imposed de jure segregation: laws were passed that mandated

segregation of public schools, public transportation, and public places, such

as restaurants, restrooms and even drinking fountains. In addition, black

voters were increasingly disenfranchised as several states imposed voting

laws that instituted poll taxes and set literacy standards, which effectively

prevented most blacks from voting and kept them off juries and out of public

office. As the political cartoon (Doc G) cynically depicted, segregation and

Jim Crow extended even to houses of worship. With their representatives

voted out of power and the conservative Old Guard reigning in the South, it

became impossible for black Southerners to use the standard political

channels to call for equality, and thus it fell to the benevolence of federal,

state, and local governments to enforce the 14th Amendment’s protections.

The Supreme Court lent powerful legal support to these laws through

two important rulings. In the Civil Rights Cases of 1883, the Court ruled that

the 14th Amendment applied only to governments, thus legalizing private

acts of discrimination. In 1896, in the landmark Plessy v. Ferguson case, the

Supreme Court ruled that the “separate but equal” doctrine was

constitutional, a ruling that comprehensively legalized segregation,

extending to schools. In the wake of this decision, the Southern states took

action to segregate their schools, leading to vast disparities between black

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schools and white schools. While the South maintained that their separate

facilities were most definitely “equal,” and thus legal, the data indicates

otherwise. Black high school graduation rates lagged substantially behind

those of whites, (Doc J), and in the South, there were no black colleges that

offered any course of study leading to a PhD. Thus, the ruling white

Democratic governments successfully neutered the ability for the black

population to educate itself and to break a cycle of poverty and social

inferiority.

It was not until the Supreme Court took action in the 1950s that this

inequality could be significantly redressed. On 17 May, 1954, the Supreme

Court ordered that all segregated schools in the country were to be

integrated in the landmark decision Brown v Board of Education (Doc F). As

Chief Justice Warren indicated, segregation of white and black children in

public schools was found to have a detrimental effect upon the black

children, a negative effect strengthened by the sanction of the law. Warren

thus believed that the doctrine of “separate but equal” had no place in

education, as “separate but equal” inherently causes harm for the black

children (Doc C). As a result of this ruling, in the 1970s and 1980s, just as the

first cohort of post-Brown students was completing high school, graduation

rates shot up among black students as a result of better schooling in

desegregated schools. This abrupt reversal of decades of languishing black

education in the South utterly refuted the South’s claim that it was capable

of enforcing the Equal Protection Clause of the 14th Amendment.

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The southern response to Brown v Board of Education dramatically

demonstrated that southern politicians could not be trusted to bring about

equality for the southern black population. The Little Rock debacle in 1957

actually involved Arkansas’ governor ordering state National Guard troops to

contradict the United States Supreme Court in admitting only white students

to Central High School, the school being desegregated. Worse, after a single

year of integration, the governor chose to shut down the entire school rather

than have it desegregated. The behavior of Arkansas’s governor in ordering

the state troopers to obstruct the federally-mandated integration of schools,

and then sacrificing the entire school in his demagoguery, reflects the

sentiment in the state of opposition towards integration (Doc E). More than

anything else, this incident demonstrated that much of the Old Guard in the

South could not be trusted with enforcing the “equal protection” provision in

the 14th Amendment to the Constitution.

However, the black population of the South suffered great injustice

outside the realm of education. Perhaps the most egregious example of this

injustice can be found in the depressing ambivalence southerners displayed

towards the practice of lynching. While it is true that the practice of lynching

had gradually declined from its peak at the turn of the century to the 1950s,

the South’s attitude towards lynchings is nothing short of shocking. For

instance, in South Carolina in 1947, twenty-eight South Carolinians

confessed to the public lynching of a black man. Nevertheless, the jury, all

white by virtue of the Jim Crow juror restrictions, acquitted each and every
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one of these men (Doc I). This instance demonstrates one of the most

frightening aspects of the Jim Crow South: the entire establishment, from the

police officers through the judges and jurors, were in support of permanent

racial inequality. When the local jury, confronted with a gang of criminals

who already had confessed, cannot take the just course of action, it is

evident beyond doubt that some other governmental body would need to

involve itself in Southern racial practices in order to obtain justice.

Furthermore, as long as lynching remained a generally tolerated practice of

terrorism in the South, there was always a threat of reprisal for Southern

black workers who wished to improve the South, as is poignantly

demonstrated by the lynching of three civil rights workers in Mississippi in

1964 and cartoon representations of such brutal lynchings (Doc H).

And lastly, various legislative bodies in the South had already taken

the initiative to enact and extend various laws perpetuating Jim Crow

apartheid in the South. Thus in the South, law enforcement agencies, jurors

and judges, state legislatures, and the public’s general sentiment was

strongly in opposition to the prospect of racial integration. In order for the

14th Amendment to be enforced at all in the South, it became increasingly

clear that a superior federal institution would be responsible for the task.

However, during the first half of the 20th century, it became

increasingly evident that Congress was powerless to do anything about civil

rights because of the senatorial power of the filibuster and the Southern

delegations’ obstructionism on the issue. The filibuster was consistently used

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as a tool of obstruction in the Senate so that the Southern senatorial

delegations, with the numbers to indefinitely extend their filibusters, could

block any civil rights legislation.

A key case study in senatorial obstructionism came in the form of anti-

lynching legislation. As is revealed by Gallup polling at the time, the vast

majority of the North and a majority of the South supported the federal

criminalization of the practice of lynching. However, wielding the senatorial

power of the filibuster, the Southern senatorial delegations disagreed.

Despite support from the American public and from the House of

Representatives, Southern Democratic senators scuttled popular anti-

lynching legislation in the 1920s, the 1930s, and again at the 80th Congress,

which adjourned in 1949 without passing the anti-lynching legislation. These

senators accomplished this feat even though they were in the clear minority

in both houses. With this sufficiently large bloc of Southern obstructionary

senators in place, it was impossible to rely upon the United States Congress

to address the civil rights issue in any meaningful manner.

Worse, the entire Southern Congressional delegation, already with the

power to throttle any legislation via the filibuster, had vehemently expressed

their opposition to civil rights reform in the damning document known as the

Southern Manifesto (Doc B). In this declaration, the Southern representatives

and senators stated their inflexible, hard-line conformation to the

constitutional philosophy of original intent (with regards to the interpretation

of the 14th Amendment’s Equal Protection Clause) and their refusal to accept
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any sort of federal intervention of their racial policies. More relevant than

their particular stances on the issues, however, was their general tone. The

tone of the document is extremely antagonistic and hostile to compromise,

and refuses to yield even an inch to Northern calls for racial harmony. With

these obstructionists possessing veto power in the Senate, the US Congress

could not hope to past progressive legislation on the issue.

Thus, the only manner by which to address the issue of wretched Jim

Crow segregation in the South fell to the two remaining federal branches: the

executive and judicial, as Southern institutions, governments, and the US

Congress itself were incapable or unwilling to act on the issue. Roosevelt was

largely occupied with first the economy and then the war during his 15 year

tenure, and chose not to antagonize southern Democrats by supporting the

anti-lynching legislation. Truman did establish a Committee on Civil Rights,

and as a consequence issued two executive orders, calling for the

desegregation of the federal work force and the desegregation of the army

(Doc D). Unfortunately, however, the president had little leeway in which to

bring about change. Neither Roosevelt nor Truman had the political attitude

to go about offending a key constituency, namely southern Democrats, in a

serious regard. The only Republican president during this time period,

Eisenhower, showed little interest in the issues of civil rights. And even had

these presidents possessed the initiative and political cover to pursue

serious desegregation, the limit of the executive’s jurisdiction would have

largely relegated the presidents to their bully pulpits, not crafting actual
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policy (the space of Congress).

Thus, given the state of racial practices in the South at that time, it fell

to the Supreme Court, quite literally the only institution in the United States

with the political authority and the impetus to act, to take steps to resolve

the civil rights issue. Moreover, the Supreme Court, in essence, had an

obligation to act, given that Plessy v Ferguson was the ruling that legitimized

the Jim Crow laws in the first place. Although earlier Supreme Court decisions

(Sweatt v Painter, McLaurin v Oklahoma) presaged the civil rights movement,

it was truly the 1954 Brown v Board of Education decision which pointedly

struck down the “separate but equal” doctrine from Plessy. This opinion, with

but a stroke of Earl Warren’s pen, comprehensively destroyed the legality of

the entire Jim Crow system and laid the foundation for desegregation and the

gradual narrowing of the racial gap. Therefore, if justice, harmony, equality,

and true progress were considered to be the values of American society, the

Supreme Court most definitively was right in involving itself in Southern

racial practices, for it was the only body in the entire United States with the

ability to truly enforce and guarantee the notion of “equal protection of the

laws,” a right to citizenship guaranteed 90 years earlier in the 14th

Amendment to the Constitution.

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Works Cited

Block, Herbert. Poplarville, Mississippi, USA, 1959. 1959. Washington Post. 8

April 2008.

Block, Herbert. Pray, Keep Moving Brother. 1960. Washington Post. 8 April
2008.

"Lynching Must Go!". Editorial. The Interracial Review, May 1947

"Retreat from Newport" Time Magazine. 23 Sept 1957.

Sutherland, Arthur E. "Segregation and the Supreme Court". The Atlantic

Monthly, July 1954

United States. Cong. The Southern Manifesto. 84th Congress, Second

Session. Washington: GPO, 1956

United States. Department of Congress. Bureau of the Census. Current

Population Reports. Washington: GPO, 1940-2007

United States. President Truman. Executive Order: Establishing the

President's Committee on Equality of Treatment and Opportunity in the

Armed Services. Washington: GPO, 1948.