| Randall Kennedy, Martin Luther King's
Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law
Journal 999-1067 (April, 1989)(397 Footnotes Omitted)
I. What Martin Luther King Was up Against: the Legal Status of
the Southern Negro in 1955
At mid-century, as throughout the history of the United States, the
racial subordination of blacks constituted an explosive national
problem. The South, however, was the locus of the most intense and
visible racial struggles. In the 1950's, Southern society was beginning
to experience with increasing severity a sharp tension created by the
urgency of black aspirations and the inertia of the established order.
In racial terms, the most striking aspect of the status quo was
segregation--the relegation of blacks on the basis of race to a separate
and subordinate sphere in every arena of social interaction.
A. Segregation in the Public Sphere
Segregation was a way of life determined in large part by whites who
virtually monopolized state power and used that power to subjugate
blacks. Although the Fifteenth Amendment to the Constitution prohibited
states from disenfranchising persons on account of race, the White South
openly and successfully used private power and state authority to deny
the Negro the ballot. On the one hand, terroristic violence and economic
intimidation dissuaded many blacks from exercising their rights to
political participation. On the other hand, literacy tests, poll taxes,
permanent disenfranchisement upon conviction for certain crimes,
creation of super-majoritarian districting schemes, 'grandfather
clauses,' and 'white primaries' provided 'legal' means of
disenfranchisement. By the mid-1950's, some of these impediments had
been invalidated. But several of the most effective obstacles to black
participation remained untouched. In 1956, only 25 percent of all black
adults in the South were registered to vote as compared to 65 percent of
all white adults. Moreover, black voting was largely confined to urban
areas. In many rural areas, black voters were virtually non-existent; in
Mississippi in 1955, fourteen rural counties with large black
populations had no black registered voters. Although less oppressive
than in Mississippi, the environment in Alabama for Negro participation
in electoral politics was also dismal. In 1960, only 9.1 percent of the
voting age blacks in Montgomery County were registered, in comparison to
46.1 percent of the voting age whites. In two other Alabama counties
populated predominantly by blacks, none were registered.
The success of white supremacists in negating black political
participation produced all sorts of collateral consequences burdensome
to Negroes. The elimination of Negro voters freed white politicians to
ignore or to attack their black constituents at little or no political
cost. At the national level, white supremacists in Congress stymied
federal legislation aimed at relieving the oppression of the Southern
Negro. On scores of occasions between 1920 and 1950, the Southern bloc
in Congress succeeded in killing federal anti-lynching legislation. At
the local level, white supremacists turned every lever of state power
into an instrument of racial oppression. There was little that Negroes
could do through conventional politics to oust officials who hired only
whites as agents of the state--e.g., prosecutors, tax-assessors, jury
commissioners, or police officers. In Montgomery in 1954, the hiring of
four blacks to the previously all-white police force was considered a
noteworthy breakthrough. But even such a minimal change as this
triggered extreme white resentment. To placate enraged whites, the
Montgomery Police Chief stated that the new black policemen were 'just
niggers doing a nigger's job.'
White officials, reflecting their own personal biases as well as the
social dynamics that placed them in office, exercised discretion in ways
that almost invariably slighted black interests. What this meant
concretely was that blacks typically received inferior public goods and
services. The separate and unequal character of segregated public
schooling has been well-publicized. But what has not been adequately
appreciated is the all-inclusive extent of systematic inequity. From
sewer service to lighting to the upkeep of streets to law enforcement to
recreational facilities, blacks could realistically expect to receive
fewer resources because of racial bias.
Political subordination was facilitated by stigmatizing beliefs
regarding the alleged moral and intellectual inferiority of Negroes. One
asserted reason for excluding blacks from activities which ideally
required responsibility, honesty, and intelligence was that they simply
lacked such traits. Tremendous effort was expended toward eliminating
blacks as jurors, for instance, not only because their presence might
have made a difference in certain categories of cases--e.g., interracial
disputes--but also because it was simply not 'fitting' for blacks to
participate in the administration of justice, because they were
incapable of conducting themselves properly.
B. Segregation in the Private Sphere
Deep-seated contempt also expressed itself in governmental commands
requiring racial separation even in 'private' contexts in which
individual whites and blacks might themselves desire to interact. In the
mid-1950's, Southern statute books were full of laws that punished
interracial sex with enhanced penalties and that prohibited or rendered
void interracial marriages. The quasi-religious punctiliousness with
which local governments stamped segregation upon the social fabric of
their jurisdictions is vividly illustrated by a city ordinance in
Montgomery which declared it
unlawful to conduct a restaurant or any other place for the serving
of food . . . at which white and colored people are served in the same
room, unless such white and colored people are effectually separated by
a solid partition extending from the floor upward to a distance of seven
feet or higher and unless a separate entrance from the street is
provided for each compartment.
It was virtually inevitable, of course, that state-enforced racial
subordination would condition the racial mores of private parties even
in areas left unregulated by statute. In the job market, for instance,
the racial prejudice of employers and labor unions, along with the
consequences of historical deprivations, combined to create a system of
occupational stratification under which blacks were relegated to the
lowest paying and least prestigious positions. In a typical Southern
city in the 1950's, at least 75 percent of the black men labored as
unskilled workers in contrast to 25 percent of the white men. While 50
percent of black working women labored as domestics, less than one
percent of white working women were so employed. In Montgomery in 1950,
the median income for whites was $1730, for blacks $970. In a city of
about 106,000-60 percent white and 40 percent black--three physicians,
one dentist, two lawyers, and one pharmacist occupied the top of the
black occupational hierarchy. By contrast, the white population boasted
144 physicians and surgeons, 43 dentists, 189 lawyers and judges, and 62
pharmacists. Ministerial service was the one professional occupation in
which the numbers of blacks compared favorably with the number of
whites: 92 black clergymen and 95 white.
What one analyst wrote in 1967 applied a fortiori to the state of
affairs a decade earlier:
In the South, Negro employment opportunity is rigidly prescribed by
traditions in race relations. The practice of dividing the work market
into 'white jobs' and 'Negro jobs' has been clearly defined, and
practices governing use of the Negro labor force have been reduced to
observable 'laws.' For example, Negroes seldom work side by side with
whites in the South, particularly in jobs that carry advantages in
income, responsibility, potential for upgrading, and cleanliness. This
is the case whether on the assembly line or elsewhere in the plant or
business. Negroes rarely, if ever, supervise whites in the South, and
opportunity for them to apply themselves at tasks commensurate with
their skills and abilities is overwhelmingly confined to segregated
areas of the economy that provide services to other Negroes.
Mrs. Rosa Parks' experience was characteristic. Although she was one
of a small number of black high school graduates in Montgomery, she
found herself unable to obtain employment in which she could put to full
use her educational training and abilities; all she could obtain were
menial jobs.
C. The Etiquette Of Segregation
Segregation also conditioned etiquette--the micropolitics of
day-to-day living. The essential function of segregationist racial
etiquette was to define and maintain the social distance necessary to
highlight the social superiority of whites in relation to blacks.
Jim Crow etiquette required blacks to address whites as 'Mr.' or
'Mrs.,' but allowed whites to address blacks by their first names. It
counselled blacks to enter a white person's dwelling from the rear, but
imposed no reciprocal expectation. It required blacks and whites to dine
separately under all circumstances. And it warned black men to show
absolutely no sexual interest in white women while tolerating white
men's sexual attraction to black women. As one observer commented, ' I n
the social framework of the southern region there is no place for the
discussion of sex relations involving a white woman and a Negro man.
Even a rumor of this kind threatens the security of the Negro.' Brutally
illustrating the degree to which the race line in sexual affairs
remained dangerously charged in the mid-fifties, particularly in the
rural Deep South, was the killing in August 1955--three months before
the advent of the Montgomery Bus Boycott--of a black youngster in
LeFlore County, Mississippi. Raised in Chicago, Illinois, and therefore
unfamiliar with the racial etiquette of southern segregation, fourteen
year-old Emmett Till made the fatal mistake of whistling at a white
girl. For that infraction, he was bludgeoned and shot in the head. Still
more instructive is that an all-white jury acquitted those charged with
Till's murder even though the evidence pointed overwhelmingly to their
guilt.
D. Segregation's Limits
Although segregation privileged whites at the expense of blacks, it
did not represent a complete victory for white supremacy. Rather, it
embodied an uneasy compromise between the racial egalitarianism that
emerged powerfully during the First Reconstruction and the white
supremacist reaction that followed. On the one hand, after dismantling
the First Reconstruction during the last three decades of the nineteenth
century, whites in the South largely succeeded in disenfranchising
blacks. On the other, the guarantee of the Fifteenth Amendment stood in
the way of a formal color bar in electoral politics. Similarly, white
power structures in southern locales largely succeeded in materially and
psychologically crippling black communities. Yet, the fact that, at
least formally, the states owed blacks services equal to those provided
to whites represented a nagging reminder that the Civil War and
Reconstruction had successfully imposed certain limitations on the use
of power by whites. Although the White North largely abandoned the
Southern Negro to his former masters after the collapse of
Reconstruction, the specter of northern intervention in southern affairs
remained a potent enough deterrent to exercise some degree of restraint
over white southern policymakers.
Segregation, moreover, never wholly succeeded in legitimating itself.
Some blacks embraced it. But many more recognized segregation as a form
of oppression and, with a few white allies, challenged it whenever they
thought they could reasonably do so without paying too high a cost. At
the turn of the century, for instance, blacks used boycotts to fight the
introduction of segregation to municipal transportation. Between 1900
and 1907, blacks boycotted segregated streetcars in at least
twenty-seven cities, including Montgomery. This precursor to the boycott
of 1955-56 lasted two years--from 1900 to 1902--and compelled a private
streetcar company to disregard, at least temporarily, the City's
segregation ordinance. The blacks' victory, however, was short-lived;
segregationist practice was soon reimposed. Even the memory of the
temporary victory was lost; neither Martin Luther King nor any of the
other leaders of the later boycott mentioned the earlier struggle.
Still, the very occurrence of these twenty-seven turn-of-the-century
boycotts vividly indicates the presence of an active black resistance
even during the worst periods of segregationist repression.
Another manifestation of resistance was litigation aimed at
challenging various features of the segregation regime. This litigation,
much of it directed by the National Association for the Advancement of
Colored People (NAACP), attacked a wide spectrum of practices including
racial exclusion in the composition of juries, residential segregation,
voting discrimination, and segregation in interstate transportation. The
capstone of this effort was Brown v. Board of Education, the most famous
Supreme Court decision of the twentieth century, the case in which the
Justices unanimously held that de jure segregation in public schooling
violated the Constitution.
Viewed collectively, these suits embody the most successful campaign
of social reform litigation in American history. But inasmuch as
officials frequently ignored or evaded judicial decisions, one must be
careful not to exaggerate the consequences of victorious lawsuits.
Rulings often promised far more on paper than the legal machinery
delivered in the crucible of day-to-day living. By 1955, however, the
cumulative weight of Supreme Court precedent had combined with other
important trends and developments, such as a general revulsion against
racism in the aftermath of the Holocaust and a felt need to compete with
the Soviet Union for the hearts and minds of people of color in Africa
and Asia, to shift white public opinion, putting proponents of
segregation squarely on the defensive.
E. Segregationist Counter-Attacks
Segregationist defensiveness, however, displayed itself aggressively.
Authorities attempted to eliminate the NAACP by applying some of the
same tactics that states and the national government had previously
employed against left-wing organizations. States tried to force local
chapters of the NAACP to disclose their membership lists, enacted
statutes that prohibited the NAACP from urging blacks to use its legal
staff to seek redress through litigation, and disseminated derogatory
propaganda about the organization. Moreover, in the wake of Brown, the
political leadership of the Southern states engaged in 'massive
resistance' that included resolutions by state legislatures declaring
the Supreme Court's judgment 'null, void and of no effect,' laws that
imposed sanctions against anyone who actually implemented desegregation,
subterfuges that evaded or drastically slowed desegregation, and school
closing plans that authorized the suspension of public education and the
disbursement of public funds to parents and children for use in
obtaining education in 'private,' segregated facilities.
Although at mid-century, politics in the South remained predominantly
'white folk's business,' a segregationist reaction was prompted by NAACP
victories in the courts along with an increase in black voter
registration. To stem further increases, the Deep South states used two
maneuvers in tandem: one tightened registration requirements, while the
other augmented the discretion of local registrars. Tightening
registration requirements enabled states to exclude a disproportionate
number of blacks by even-handed application of race-silent criteria.
Augmenting the discretion of registrars enabled states to (1) cheat on
behalf of whites who would otherwise have been excluded by the elevated
criteria and (2) exclude blacks who, if fairly evaluated, could satisfy
the new standards.
In some areas, officials did more than slow or stop black progress;
they rolled it back. In Louisiana, for instance, parish registrars were
encouraged by a legislative committee to search the registration
applications of Negroes for errors that could be used as the basis for
revoking registration. Applying this method, registrars removed ten to
eleven thousand blacks from voting rolls in twelve parishes between 1956
and 1957.
Accompanying the reaction of state governments were responses by
private persons and organizations. A new group, the White Citizen's
Council, engaged in a campaign to 'persuade' blacks who had registered
to strike their names 'voluntarily' from the voting roles. In Sunflower
County, Mississippi, the Council's efforts caused black registration to
fall from 114 to zero within a matter of months.
Economic coercion played an important role in dissuading blacks from
voting or exercising other rights purportedly guaranteed by the
Constitution. Also influential was the willingness and ability of whites
to resort to violence in defense of the old order. Between 1955 and
1959, 210 incidents of racial violence were recorded in the eleven
states of the Old Confederacy. This catalogue of terror included six
murders, twenty-nine assaults with firearms, forty-four beatings, and
sixty bombings. To put the matter more concretely it involved
a raid by more than a hundred sheeted men into the black section of
Maplesville, Alabama, that left six Negroes injured . . . the castration
of a Negro handyman in Birmingham, Alabama, as part of a Klan ceremony .
. . the flogging of a white school teacher in Camden, South Carolina,
because he had allegedly made a favorable reference to desegregation . .
. the shotgun displayed by a robed Klansman as a motorcade of some one
hundred cars drove through a Negro residential section in Summerville,
Georgia . . . the dynamiting of a white physician's home in Gaffney,
South Carolina, because the physician's wife had written an article
favoring racial justice . . . the Negro woman who withdrew her suit
against a North Carolina school board after receiving threats that her
children would never return if they attended the white school . . .
[and] the flogging of a white sawmill worker in Stanton, Alabama,
because he was accused of 'associating too freely with Negroes.'
Such was the state of affairs in the South at mid-century.
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