The historian C. Vann Woodward contributes his third article to COMMENTARY analyzing the desegregation crisis, following “The ‘New Reconstruction’ in the South” in our June 1956 issue and “The Great Civil Rights Debate” in October 1957.
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The annual fall maneuvers have left the school desegregation front very little altered in the Border States and the Upper South. Beyond the wavering front line, resistance remains to all outward appearances rigid and determined, save for the dubious enclave of North Carolina. Behind the line a few small pockets of resistance have been cleaned out, but the advance has been the smallest yet scored. In all, since the 1954 decision, 792 school districts have completed or at least begun the process of desegregation, but only twelve of those have been added since the last school year. That number includes some districts where the issue is still much in doubt. More than two thousand bi-racial districts still remain segregated. All but fifteen of the desegregated school districts lie in the Border States, none at all in the Lower South. The campaign had come very near grinding to a halt.
In the western theater of operations, moreover, the main campaign was not waged for new territory at all, but for the recapture of Little Rock. Won the previous fall with paratroops and with many prestige casualties, this strategic point had to be besieged anew. In the eastern theater gains were registered in Virginia, where a deep salient was driven into the left flank at Norfolk, another into the center at Charlottesville, and a shallow advance was effected on the right in Warren County. Some of these advances appear over-extended and still in jeopardy.
Activity of both defensive and offensive character centered in the courts, and litigation flew fast and thick through late summer and early fall. Nothing was heard of the classic complaint of “the law’s delay.” Special sessions were convened, dockets were cleared, justices burned the midnight oil, and decisions were handed down faster than opinions could be published—or even written. Segregationist law-makers and attorneys dashed from one calculated expedient to the next, only to find a Federal judge sternly blocking each supposed loophole. When one local Federal court yielded before the onslaught in Arkansas and granted a two and a half year postponement of desegregation orders, the Federal judiciary outdid itself with a speed more than deliberate in order to shore up the breach and repair the damage. As the words of the opinion were pronounced by the Chief Justice to settle that litigation, they were forwarded by telephone to Omaha, taken down by a stenographer, and rushed to a Court of Appeals that was simultaneously sitting upon the Little Rock “private school” plan. Whereupon the judges in Omaha issued a temporary restraining order and more than a hundred Federal marshals sprang into action in Little Rock to serve copies of the order the same evening.
Never before perhaps, or at least not for a century, has the Federal judiciary deliberately placed itself in a more exposed position during a political crisis. While the executive and legislative branches have remained in dugouts behind the lines, the judiciary has both led the offensive and withstood the brunt of attack on the firing line. In the last great struggle for equality, the one during the First Reconstruction, the courts took cover and retired from the fight. This time they not only laid down strategy but virtually assumed tactical command. Their leadership has been intrepid and unwavering. Those in search of hopeful signs in the crisis over desegregation would do well to make the most they can of the encouragement offered from this source.
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The high point in judicial firmness and boldness was reached in the Supreme Court opinion in the Little Rock case on September 29, the first major pronouncement on the subject the justices have rendered since May 1955. The Court emphasized the unanimity of the opinion by pointing out that although three new members had been added since the original decision, the Court still spoke with one mind on this matter. Veteran Supreme Court reporters confessed themselves moved by the drama of the occasion and by the earnestness and severity with which Chief Justice Earl Warren read the opinion. He began by pointing out that the case raised “questions of the highest importance to the maintenance of the Federal system of government,” since it involved the defiance of Court orders by the governor and legislature of a state.
Specifically the Court was urged to uphold the suspension of the Little Rock plan of desegregation granted by a district judge who found that one year’s trial of the plan had produced “chaos, bedlam, and turmoil” in Central High School, acts of violence against the Negro students, and “tension and unrest” among teachers, administrators, and parents.
Without going into the merits of this description of conditions at Central High, the Supreme Court opinion retraced the history of the efforts of the school board of Little Rock to put into effect a plan of desegregation and in doing so conceded the “entire good faith” of the board from beginning to end. The Court placed the blame for frustrating the board’s plan wholly upon state officials and quoted the school board itself as saying: “The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements vilifying Federal law and Federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.”
In peremptory fashion the Court refused to uphold the suspension of the Little Rock school board’s plan, declaring that “law and order are not here to be preserved by depriving the Negro children of their constitutional rights.” Then in judicial rhetoric that expressed displeasure amounting to anger, the Court repudiated the implied claim of governor and legislature that they had no obligation to obey Federal court orders which rested “on this Court’s considered interpretation of the United States Constitution.” It reminded those officials that the Constitution was the “supreme law of the land,” and recalled Marshall’s dictum that “it is emphatically the province and duty of the judicial department to say what the law is,” and that to permit states to defy such law would be to make the Constitution “a solemn mockery.”
Going further still to anticipate evasion, the Court declared that its decision could “neither be nullified openly or directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation.” As for so-called private school plans, the Court prohibited “any arrangement, management, funds, or property” of the state being used to support segregated schools.
It is impossible to see how the Court could have gone any further in the direction of clarity and firmness. There is little doubt that the decision was intended to speed up “deliberate speed” and stiffen the resolution of Federal district courts in the South and the courts of appeals. Insofar as judicial thunder could break the impasse, the Supreme Court opinion of September 29 would seem to have about exhausted the possibilities. In several quarters of the executive branch in Washington there were sighs of relief and a disposition to reflect that now it was only a matter of time. Secretary Arthur S. Fleming of the Department of Health, Education, and Welfare felt sure that “the good judgment and common sense of the citizenry would result in the reopening of the schools.” Attorney General William P. Rogers felt equally assured about the future. “It seems inconceivable,” he said, “that a state or community would rather close its public schools than comply with the decisions of the Supreme Court of the United States.”
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Inconceivable as it doubtless is to many, Southern intransigence did not wilt before the toughened Court position. The immediate response, at least, was a stiffer tone of defiance. “I will never open the public schools as integrated institutions,” declared Governor Orval E. Faubus of Arkansas. And the somewhat less flamboyant Governor of Virginia, J. Lindsay Almond, Jr., merely took the trouble to qualify his own “never” with the adverb “voluntarily.” Both states busied themselves with jerry-built plans for providing private schools while more than 16,000 school children waited.
The closing of those schools that were under court order to desegregate could only be regarded as a temporary expedient. It was obvious that if the courts were prepared to declare the exclusion of a few Negro children from a white school deprivation of equal protection of the law, they were more than prepared to declare unconstitutional for the same reason the exclusion of all the children, white as well as colored, so long as the rest of the public schools in a state remained open. The only apparent recourse the Court had left to the segregationists was to close all the public schools. The threat of some states to do just that cannot, unfortunately, be dismissed as mere bluster. It certainly can happen and in all probability will. South Carolina and Alabama have already put themselves in a position to do it. Instead of nearing its end, the resistance is only entering a more desperate phase.
Comfortable assurances about respect for the law being ingrained in the character of the South are misleading in this instance and lend a false color of optimism to the outlook. The fact is that a large proportion of the people have persuaded themselves, or allowed themselves to be persuaded, that the Brown decision against segregated schools and those decisions that follow from it are not properly to be regarded as the law of the land. There were a number of this persuasion from the start, of course, some of them irresponsible demagogues, but the number of converts to this point of view has grown alarmingly in the last year.
During 1958 the Southern attack on the Supreme Court received great comfort and encouragement from other parts of the country. The non-Southern critics of the Court were often not concerned with the segregation decisions, or said they were not, and some of them were not in sympathy with the Southern attitude on segregation. Not all of the attacks were made from the states’-rights point of view. The critics varied widely in learning, prestige, authority, and political leanings, and they were by no means all cranks, crackpots, or conservatives. They included, for example, Judge Learned Hand, whose Harvard lectures attacked the Brown decision frontally for lack of judicial restraint; Professor F. S. C. Northrop, who criticized the Court for inconsistency in the same decision; and Thurman Arnold, who confessed his concern at the sight of the justices “roaming the stormy field of economics, sociology, psychiatry, and anthropology, their black robes flapping in the winds of controversy.” A predominantly conservative bar has been vocally critical for some time, and to the chorus from the conservative press even the Washington Post has lately added gentle remonstrances.
During the month before the opening of schools in the fall of 1958 two disaffected groups of great influence and authority simultaneously reached a climax of running assault upon the Supreme Court. These were the Conference of Chief Justices of State Supreme Courts in their annual meeting and the 85th Congress of the United States in the final weeks of its session. The chief justices, meeting in Pasadena, engaged in a full-dress debate on the adoption of a report of their committee on “Federal-State Relations as Affected by Judicial Decisions.” The report championed the rights reserved to the states, severely criticized encroachments upon them by the Federal judiciary, and demanded that the Supreme Court exercise more judicial self-restraint. The school-segregation case was nominally avoided, but as one of the opponents of the report said, it was “quietly imbedded in the resolution you are asked to adopt.” The report was adopted by the overwhelming majority of 38 to 8. Only the chief justices of California, New Jersey, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Hawaii voted against it. The chief justices were not speaking for their courts, of course, but as Chief Justice Joseph Weintraub of New Jersey remarked: “Any man or group of men who choose to place themselves above the constituted authority as determined by the Supreme Court . . . is sure to find comfort . . . in the sweeping reflections upon the Supreme Court in this report.”
In Congress the Southern opponents of the Court were joined by critics from other sections in an assault of explosive and startling violence against the Court’s prerogatives, its philosophy, and its decisions of recent years. The House passed bills placing several restrictions upon the Court’s powers, and the Senate was prevented from doing so only by a combination of luck, fatigue, and fast maneuvering. The Senate came within eight votes of passing an omnibus bill that would have nullified several Supreme Court decisions concerning state laws, civil rights, Congressional investigations, and Communists, and within one vote of prohibiting the Court from excluding states from any legislative area occupied by Congress unless Congress specifically agreed. In the opinion of Senator Wayne Morse these measures would have taken us “back to the Articles of Confederation.” Altogether, the attack was the most bitter and violent the Court has sustained for a generation.
On top of these stimulating reinforcements from Congress and the state chief justices, the Southern resistance received an additional fillip from President Eisenhower about the same time. Asked to confirm a report that he had privately deplored the Brown decision and said that integration should proceed more slowly, the President declined to express approval or disapproval of any decision, but then added in his best Stengelese: “Now with respect to the other one, it might have been that I said something about slower, but I do believe we should—because I do say, as I said yesterday or last week, we have to have reason and sense and education and a lot of other developments that go hand in hand as this process—if this process is going to have any real acceptance in the United States.”
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Grasping at any encouragement, the segregationists have dug in for a determined resistance. To understand their stubbornness one must realize that with at least half their minds they believe they are right. Since the struggle has centered in the courts and in the interpretation of the Constitution, they have concentrated their attention upon legalistic arguments. They are in this a part of a historic pattern, for like the old defenders of slavery they have wrapped themselves so heavily in legalistic defenses that they are blinded to realities—even the realities of the law itself.
North Carolina has proved a partial exception. There the segregationists started out on the path of massive resistance too, with all the legal paraphernalia and propaganda that was being simultaneously developed in sister states. But someone of influence evidently realized in time how moderate the expectations of the Supreme Court actually were, how much was left in the hands of local authority, and how small a concession it really took to appease the mildly troubled conscience of the North. In the fall of 1957 a tiny handful of Negro pupils were admitted to three schools in three cities, and ten of them actually attended throughout the year. The following fall the cause of integration was very deliberately speeded by the admission of one more Negro pupil. This made a grand total of eleven going to school with white children out of a total of some 322,000 Negro pupils in North Carolina.
It is true that there were difficulties: withdrawals, transfers, expulsions, fights. One Negro girl was shamefully insulted. The Ku Klux put on a demonstration. The Haliwa Indians absolutely balked at going to school with Negroes, and in order to maintain red supremacy they established a private school. Nevertheless, North Carolina was “integrated.” It was only token integration, to be sure. Yet Northern opinion beamed approval and relaxed. North Carolina had complied, bowed to the Court’s orders, respected the law of the land. Here was the model, the Lincolnian plan of the Second Reconstruction, the way out.
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To the doctrinaire adherents of massive resistance, however, the North Carolina plan meant trifling with principle. And to them by this time everything was a matter of principle. Tokens were sordid compromise, whether tokens of seven, or eleven, or seventeen. It made no difference. In this private world of principle the Supreme Court decision became the end of racial integrity, mass mongrelization at bayonet’s point. Words began to shift their significance and lose their common meaning. A “moderate” became a man who dared not open his mouth, an “extremist” one who favored eventual compliance with the moderate plan of desegregation. “Compliance” took on connotations of treason. The NAACP assumed the hideous mask of Mau Mau.
Letters from down South speak painfully of the price that is being paid. Lifetime friends have stopped speaking to each other. Men of good will are silent. Old contacts between the races on the old basis have been broken or strained. Few have been established on the new basis of equality. Harry Ashmore of the Arkansas Gazette, who has fought a good fight and a long one, wrote in September: “We, and those who shared our view across the South, have failed. There is no way, for the time being at least, to obtain such compliance [with the Court’s orders in Little Rock] without doing serious and perhaps irreparable harm to the system of public education upon which all our children, colored no less than white, are dependent.”
Faced with implacable opposition, the judicial plan of reconstruction appears destined to suffer frustration in large areas of the South. Either that or it may evoke token compliance that is evasion so thinly disguised as to amount to an affront to the dignity of the Court and a blow at the prestige of the Federal system. There is so far no professed intention of compliance in the Lower South, and there is open boasting of the fact. Civil disobedience and passive resistance to authority on grounds of principle are old traditions in America. They have a rather remarkable record of success, and they have not been employed exclusively on the side of the angels. If they have been effectively used to nullify the Fugitive Slave Act, they have also been used to nullify the Volstead Act and to make a mockery of treaties guaranteeing the rights of Indians that were backed by decisions of the Supreme Court. There is also the American tradition of great promises and noble experiments becoming semi-hoaxes after the fashion of the Homestead Act and the Eighteenth Amendment.
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Having rejected judicial reconstruction, the South has so far escaped Congressional reconstruction. Congress has thus far cautiously refrained from intervening in the struggle against segregated schools. In fact, it has shown remarkably little effective interest in the whole fight for Negro rights. Time and again the Senate has tabled, emasculated, or talked to death bills of this kind that were placed before it. In the summer of 1957, however, Congress did pass a Civil Rights Act, the first since 1875. The bill provided, among other things, for Federal assistance to encourage and protect the registration of Negro voters. A determined fight by Southern Senators with Western help, however, defeated Part III, which Senator Richard Russell of Georgia denounced as “the heart of this bill.” This part empowered the Attorney General at his own discretion to file suit for an injunction whenever he suspected interference with a whole range of unspecified civil rights, including presumably the right to go to an unsegregated school. Even liberal Senators who favored Part III backed away from the aggressive Southern accusation that they were trying to revive the dark Reconstruction days.
The secret of Congressional forbearance in the civil rights and desegregation struggle has been Southern influence in Congress, particularly in the Senate. That influence is not built into the Constitution. It rests upon a set of rules that can, with difficulty, be changed. Especially important are rules of seniority that make Southerners chairmen of the important committees in any Democratic Congress and the famous Rule XXII guaranteeing unlimited right of debate—and therefore the privilege of filibuster. Efforts to change these rules and reduce the power of the Southern delegations in Congress have repeatedly been made and repeatedly defeated. Senate Leader Lyndon Johnson and Speaker Sam Rayburn have been most ingenious in forestalling these efforts.
Southern influence has nevertheless been slipping of late. There are signs of further decline in the near future. Several Northern conservatives with whom the South has cooperated in the past are destined for retirement. A Democratic swing in the fall elections will bring in a lot of new members, many of them with liberal leanings, who are not obligated to the Texas leaders. A new state has been admitted to the Union and will be sending uncommitted congressmen to Washington. A new census is just around the corner and following that a re-apportionment of representatives that will diminish the South’s relative strength in the House. Northern liberal members have already served notice that they will revive the fight to change the old rules, including Rule XXII, and they have promised also to dig up the Part III that was stricken from the Civil Rights Bill of 1957 and attempt to push it through over Southern opposition. Behind this latter design is a mounting impatience in the North at the South’s defiance of court orders. Congressional reconstruction may well be on the way to supplement the moderate judicial reconstruction.
Historians have often attributed great political gifts to the South, gifts of sagacity and shrewdness in leadership. There have certainly been times in national history when this reputation has been deserved and when the country has relied heavily on the political genius of the region. But there have been other times when the political leaders of the South seemed blind to political realities, even blind to their own advantage. One such time was the tragic decade a century ago, which saw the crisis of secession, and again in the crisis of reconstruction. In the latter crisis they failed to use wisely the opportunity for moderate reconstruction provided by the presidential plan and as a consequence brought upon themselves a plan that was quite different. At such times the superstitious would say the gods were determined to destroy the South and had first made the people blind, if not mad. In the present instance there is still an opportunity, a brief reprieve, but the time is running out.
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