the Negro, and a tightening pattern of segregation as Southern States around the turn of the century began to expand their public school systems. Whether in response to this or to the new opportunities in expanding northern industrial centers the migration of Negroes to the North grew, especially during and after World War I. With this, racial problems truly became nationwide, for the Negro, along with the right to vote and perhaps a better paying job, found discrimination and segregation in housing awaiting him in the North. Meanwhile, as the 20th century progressed, the Supreme Court took a broader view of the Constitution. The commerce clause was expanded until the Court could say that it is as wide as the needs of the nation. Oddly, it was the commerce clause and not the Fourteenth Amendment that was first successfully invoked against segregation in transportation. In 1946, the Court held invalid a Virginia statute which required segregation on all buses in interstate as well as intrastate commerce, as an undue burden on interstate commerce in matters where uniformity is necessary.14 But during these years the Court also began to give new vitality to the civil rights amendments. In 1915, the Court struck down as a violation of the Fifteenth Amendment the Oklahoma "grandfather clause" by which Negroes were deprived of their right to vote.15 When Oklahoma later devised a scheme to give permanent registration to voters who had voted in a previous election but require others (including most Negroes) to register within a 12-day period or be permanently disfranchised, the Court struck this, too, saying that "the Amendment nullifies sophisticated as well as simple-minded modes of discrimination.16 In the same spirit the Court has stricken the white primary and various schemes to accomplish the same thing, holding finally that "It may now be taken as a postulate that the right to vote in ... a primary .. without discrimination by the State... is a right secured by the Constitution." 17 ... Similarly, in the field of public education, after a number of cases holding that facilities for Negroes were not in fact equal, the Court finally held that "separate educational facilities are inherently unequal" and that segregated Negro plaintiffs had been deprived of the equal protection of the laws.18 And in the field of housing, where the doctrine of separate but equal has never been applied, the Court has gone on from holding racial zoning ordinances unconstitutional to holding that judicial enforce 14 Morgan v. Virginia, 328 U.S. 373 (1946). See also Hall v. DeCuir, 95 U.S. 485 (1877); Louisville, New Orleans & Texas Ry. Co. v. Mississippi, 133 U.S. 587 (1890). Quinn v. U.S., 238 U.S. 347 (1915). 1 Lane v. Wilson, 307 U.S. 268, 275 (1939). "Smith v. Allwright, 321 U.S. 649, 661 (1944); Nixon v. Herndon, 273 U.S. 536 (1927); United States v. Classic, 313 U.S. 299 (1941). Brown v. Board of Education of Topeka, 347 U.S. 483, 495 (1954). ment of racially restrictive private covenants is governmental action constituting a denial of equal protection.19 These cases have caused great controversy. The authority of the Supreme Court to require an end to segregation in public education, even its authority to overturn a doctrine that it had sanctioned for several decades, is being challenged. But this is not new for the Court. Only the unanimity of the Court in the school decisions and some of the other racial decisions mentioned above is new. It can be observed that the Court has not assumed power over education as such. It simply applied a constitutional limitation on the States which applies to education in the same measure that it applies to State conduct of any other activity. Education is granted no immunity from the requirements of the Fourteenth Amendment. Whether the Court of 1954 or the Court of 1896 was correct in its interpretation of the Fourteenth Amendment, the fact remains that to interpret is the established function of the Court. As Chief Justice Marshall declared in 1819, it is "a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." 20 Mr. Justice Field remarked in 1894, in response to a contention that the position of the Court was in conflict with two of his own previous opinions, "It is more important that the Court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience." 21 Indeed there have been scores of prior decisions which the Court has directly overruled and many more in which previously enunciated doctrines have been substantially modified.22 This is not to say that everyone must agree with the Court. A decision may be characterized as wrong, improper, or unwise. Many so characterized the decision in Plessy v. Ferguson that interpreted the Fourteenth Amendment to permit segregation. Lincoln so characterized the Dred Scott decision. But, painful as it may be, those who disagree with the Court must, if they are to uphold the Constitution of the United States, accept the decision of the Court as the authoritative interpretation of the law of the land. Solely out of "obedience to, and respect for, the judicial department of government," Lincoln opposed acts of interposition or resistance to the Dred Scott decision. "But we think the Dred Scott decision 19 Buchanan v. Warley, 245 U.S. 60 (1917); Shelley v. Kraemer, 334 U.S. 1 (1948). Barrows v. Jackson, 346 U.S. 249 (1953). 20 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 21 Barden v. Northwestern Pacific R.R. Co., 154 U.S. 288, 322 (1894). 22 See the opinion of Mr. Justice Byrnes in Edwards v. People of State of California, 314 U.S. 160 (1941). is erroneous," he said. "We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this." 23 However, until the Court changed its mind or the country changed the Constitution, Lincoln called on the people to do their constitutional duty: We think its decision on constitutional questions, when fully settled, should control not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution." In the light of this history, of these fundamental principles, and of the present requirements of the Constitution, the Commission conducted its studies and appraisal soberly but full of hope. It is sobering to know that a substantial number of the people and of the public officials in one region do not yet accept the mandate to end racial discrimination in public education with all deliberate speed, and to know that there are a considerable number of counties where Negroes are denied the right to vote. Standing in the way of reasonable solutions to the difficulties involved in ending discrimination in all walks of our public life is the great stubborn fact that many people have not yet accepted the principles, purposes, or authority of the Fourteenth and Fifteenth Amendments. The legal dispute over the validity of these amendments has been settled by history-and by the Supreme Court, the only organ of our Government that can decide such questions. But the human response to these national rules is not settled. There remains the enduring American problem of obtaining the consent of the governed. Moreover, this problem is not now limited to one region. The degree of racial discrimination in the field of housing that exists throughout the country, and is particularly critical in the great metropolitan centers of the North and West, suggests unwillingness on the part of a substantial portion of Americans to follow the rule of equal rights. Concentration of colored Americans in restricted areas of most major cities produces a high degree of school segregation even in communities accepting the Supreme Court's decision. With the migration of Negroes and Puerto Ricans to the North and West, and an influx of Mexicans into the West and Southwest, the whole country is now sharing the problem and the responsibilities. This is historically just, for the South alone was not responsible for slavery. Yankee slave traders, sailing from New England ports, purchased and carried to these shores the uprooted men and women of Africa, and sold them here, pocketing great profits. Lincoln at Springfield, June 26, 1857. See Stern, The Life and Writings of Abraham Lincoln (Modern Library edition), p. 418. 34 Ibid. What is also sobering is the magnitude of the injury inflicted upon Negro Americans by the events recorded in this historical review. It is reflected in the poor education, low income, inferior housing and social demoralization of a considerable part of the Negro population. What compounds the problem is that these unfortunate results of slavery, discrimination, and second-class citizenship are in turn used by some more fortunate Americans to justify the perpetuation of the conditions that caused the injury. Yet the Commission is hopeful because it has faith in the Constitution and in the American people. Other great problems have been successfully resolved through the process of persuasion ordained by the Constitution. The frictions, the tensions, the checks and balances, the division of power, the divergent views on great issues by the different levels and organs of government and by the people are all part of the American process of education and peaceful change. Out of it all, with deliberate speed, our republican federal system is generating the consent of the governed. Already this has worked in the field of racial discrimination in many parts of our national life. Southern States themselves took the initiative in outlawing the hooded violence of the Ku Klux Klan.25 Several Northern States have recently enacted far-reaching laws against discrimination in housing. The right to vote is established in most of the country, including many areas in the South. Segregation has ended in interstate transportation everywhere and in buses and streetcars in a number of Southern cities. Along with the voices of frustration, disobedience, and violence there have always been and are today the other voices advising, as Robert E. Lee advised his countrymen, that it "should be the object of all . . . to allay passion" and "give full scope to reason and every kindly feeling." 26 .. Moreover, in but a few generations of freedom Negro Americans have made progress in nearly every field of endeavor and in increasing Alabama has statutes forbidding flogging while masked (Ala. Code, t. 14, sec. 35), against abusing or beating accused persons (t. 14, sec. 354), against lynching (t. 14, sec. 355) or the wearing of masks in public (t. 14, sec. 351 (1)). Arkansas has mask and coercion laws (Ark. Stat. Ann., 1947, secs. 41-2601 et seq.), and also Tennessee (Tenn. Code Ann., t. 39, ch. 28, secs. 39–2801 et seq.). Louisiana prohibits the wearing of masks or hoods in public places (La. Rev. Stats. t. 14, sec. 313.) and Kentucky prohibits banding together for unlawful purposes (Ky. Rev. Stats. t. XV, ch. 437, sec. 437, 110). Florida prohibits the burning of crosses or wearing of masks (Fla. Stat. Ann., sec. 876. 11 et seq.), as does Georgia (Ga. Code Ann., sec. 26-5303a et seq.). North Carolina has statutes to prevent entering of jails for lynching purposes (N.C. Gen. Stats. sec. 162, 63 1952), and provides for lynching investigations (sec. 114-15). Oklahoma prohibits wearing of masks and disguises (Okla. Stat. Ann., 1951, t. 15, ch. 54). Anti-lynching laws are found in South Carolina (S.C. Code, 1952 Supp., sec. 16-234 et seq.), Virginia (Code of Va., 1950, sec. 18-36 et seq.) and Teras (Vernon's Tex. Code., t. 15, ch. 17A art. 1260a, sec. 1-5). There are statutes also in Virginia against the wearing of masks and burning of crosses (sec. 18-349.1 et seq.). 20 Freeman, Robert E. Lee, vol. 4, p. 483. numbers have reached high levels of educational, professional, artistic, political, and economic achievement. Finally, the Commission is full of hope because, as Lincoln said, "intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty." 27 The "mystic chords of memory" remind us that dissent, even to the great propositions established in the Constitution, is in the American tradition, and that the white people of the South have behind them the tradition of Jefferson, Madison, and Jackson and the other great Southerners who drafted or fought for this country's original declarations of human equality and bills of rights.28 The Commission shares Lincoln's faith that the whole American people will be "again touched ... by the better angels of our nature." 29 First Inaugural, March 4, 1861. See Stern, op. cit. supra note 23 at 656–57. Ibid. 517016-593 |