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Vernellia R. Randall
Professor of Law
The University of Dayton

 

   
   

 

 

Randall Kennedy

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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