| 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)
The Montgomery Bus Boycott has attained a secure and honored niche in
the Nation's public memory. Indeed, it has become something of a legend.
One problem with making legends is that the process engenders a
distortive sentimentality. We must thus be careful to prevent admiration
for the boycott from exaggerating its accomplishments. The concerted
withdrawal of Negro patronage is not what finally desegregated the
buses; successful litigation constituted the decisive action. The
economic pressure of the boycott forced Company officials to break ranks
with the city commissioners. Its moral pressure impelled a few white
Montgomerians to commit the apostasy of actually siding with King. But
the boycott on its own did not succeed in inducing the political
authorities to make any substantial concessions.
Even within the small social space created by the boycott and its
attendant litigation, the transition from segregation was slow and
difficult. Browder largely stilled official resistance to desegregation
aboard local buses. Moreover, many white Montgomerians quietly accepted
the new dispensation. But others bitterly and vocally resisted, refusing
to sit beside Negroes or in what was formerly the Negro section of
buses. An elderly man who stood in the front of a bus despite the
presence of vacant seats in the rear spoke for a substantial number of
whites when he stated that he 'would rather die and go to hell than sit
behind a nigger.' Some die-hards even went so far as to incorporate a
private club--the Rebel Club--for the purpose of providing a
transportation system available only to whites.
Blacks were often the victims of segregationists' retribution. The
evening that the Supreme Court decided Browder, forty carloads of robed
and hooded Ku Klux Klansmen rode through Negro neighborhoods honking
horns and shining lights into residences. White 'traitors' were targeted
as well. The Alabama Association of White Citizens Councils urged 'the
real white people of Alabama never to forget the names Rives and
Johnson.' The judges were deluged with threatening calls and letters. A
cross was burned on Judge Johnson's lawn and the gravesite of Judge
Rive's son was desecrated.
Segregationist resentment expressed itself in other potentially
lethal forms. Two days after the inauguration of desegregated seating,
someone fired a shotgun through the front door of King's home. A day
later, on Christmas eve, white men attacked a black teenager as she
exited a bus. Four days after that, two buses were fired upon by
snipers. In one sniper incident, a pregnant woman was shot in both legs.
Then, on January 10, 1956, bombs destroyed five black churches and the
home of Reverend Robert S. Graetz, one of the few white Montgomerians
who had publicly sided with the MIA.
The City Commission suspended bus service for several weeks on
account of the violence. When the violence subsided and service was
restored, many black Montgomerians enjoyed their newly recognized right
only abstractly; they avoided the anxiety-producing friction that
attended what the segregationists called 'race mixing.' The boycott had
involved communal withdrawal from the presence of the color line. But
for a black rider actually to cross the color line was a different
matter that involved an exercise of individual will and personal
vulnerability that for many proved immensely and understandably
daunting. For others, the problem involved a loss of that heightened
sense of duty which, during the protest, had generated such glorious
departures from normalcy. In the aftermath of the boycott the
gravitational pull of old habits exerted their force: 'When we first
started getting back on the buses I sat up front,' one former boycotter
recalled, ' b ut then I began sitting in the back--I wasn't afraid or
nothing: it's just that I was accustomed to it.'
To the extent that the color line was crossed, the breach extended
only to the buses. In practically every other setting, Montgomery
remained overwhelmingly segregated, largely because of the popularity
(among whites) of sentiments like those expressed by Mayor Gayle when he
stated in response to the decision bearing his name:
The recent Supreme Court decisions . . . have seriously lowered the
dignified relations which did exist between the races in our city and in
our state. . . . The difficulties [which the invalidated laws were]
meant to prevent and the dignities which they guard are not changed here
in Alabama by decisions of the Supreme Court. . . . To insure public
safety, to protect the peoples of both races, and to promote order in
our city we shall continue to enforce segregation.'
Underscoring their commitment to the old order, the city
commissioners adopted, on March 19, 1957, a city ordinance declaring it:
unlawful for white and colored persons to play together, or, in
company with each other . . . in any game of cards, dice, dominoes,
checkers, pool, billiards, softball, basketball, baseball, football,
golf, track, and at swimming pools, beaches, lakes or ponds or any other
game or games or athletic contests, either indoors or outdoors.
In the early 1960's, Montgomery began formally to rescind such laws,
but even that sometimes failed to deprive them of their power. In March
1960, one week after Montgomery rescinded its ordinance requiring
segregation in restaurants, ten white college students from Illinois,
their professor and his wife, and four Negroes associated with the MIA
were arrested in a black-owned retaurant merely for eating together and
talking with one another. A little over a year later, in May 1961,
President Kennedy was forced to dispatch federal marshalls to Montgomery
to quell violence directed against an interracial group of 'Freedom
Riders' who sought to test whether southern jurisdictions were complying
with federal laws that prohibited racial discrimination in interstate
transportation. Resentful of the MIA's success in formally desegregating
intrastate transportation, hard-line segregationists became apoplectic
in the face of interracial groups of 'outsiders' whose stated purpose
was to exercise all of the legal rights they possessed as travellers in
interstate commerce. The following description of the attack against the
Freedom Riders helps to illustrate the extent to which King's hopes for
reconciliation in a desegregated Montgomery were still virtually utopian
more than five years after Gayle.
[A] mob of several hundred launched a vicious assault on the riders.
A number of the youths were severely beaten, and one black seminary
student . . . was knocked unconscious with baseball bats. John Lewis [a
leading activist who is now a member of the United States House of
Representatives] was hit by a wooden crate and while lying in the street
was served with a state court injunction against the journey by an
Alabama official. The mob assailed reporters and photographers, black
passersby, and whites who appeared sympathetic to the protesters. One
black who was not a Freedom Rider was doused with kerosene and set
afire. John Seigenthaler [an aide to United States Attorney General
Robert Kennedy] was clubbed from behind while attempting to help one
rider get away and was left unconscious on the sidewalk for nearly half
an hour. White ambulances refused to come to the scene.
Even with respect simply to intrastate transportation, segregation
did not immediately end throughout the South in the wake of Gayle. Some
places did desegregate rather quickly. At the beginning of 1957, the
Southern Regional Conference (SRC) reported that 21 southern cities had
ended compulsory segregation in local buses without court action. But
other municipalities adopted many of the same stalling tactics that
effectively stymied enforcement of Brown. In some jurisdictions the
color line in seating remained intact as officials insisted that they
would maintain segregation on city buses until courts specifically
invalidated their local ordinances. It was not until 1957-1959 that
litigation brought desegregation to the buses of such major southern
cities as Miami, New Orleans, and Atlanta. In other jurisdictions,
officials sought to avoid desegregation by abandoning openly segregatory
laws while enlarging the discretionary powers of bus drivers who then
proceeded to recreate Jim Crow patterns. The City Commission of
Tallahasee, Florida, for instance, replaced a traditional segregation
ordinance with one that made it a crime to occupy any seat or standing
area other than one expressly assigned by the bus driver.' The drivers
allowed the rear of the bus to be nonsegregated, but refused to assign
blacks to seats in what had previously been formally designated as the
white section.
In still other jurisdictions, the color line remained intact persuant
to a strategy of privatization, which entailed rescinding official
requirements for racial separation and allowing private parties to
shoulder the burden. Boman v. Birmingham Transit Co., a case arising
from Birmingham, Alabama, shows the move to privatization, displays the
way in which some district judges were willing to allow that strategy to
succeed, and anticipates the doctrinal issues that awaited courts when
the Civil Rights Movement broadened its attack to include not only de
jure segregation but racial discrimination that, in an important sense,
really was 'private.' After being sued by blacks who were intent upon
enforcing Gayle, officials in Birmingham replaced the city's traditional
segregation ordinances with new provisions making no mention of race.
These provisions authorized carriers to 'promulgate such rules and
regulations for the seating of passengers . . . as are reasonably
necessary to assure the speedy, orderly, convenient, safe and peaceful
handling of passengers.' They also provided that a willful refusal to
obey the request of a driver enforcing the company's seating policy
constituted a breach of the peace. At the same time that city officials
made these changes, the bus company painted signs in the front and rear
of its buses which read: 'White Passengers seat from front, Colored
Passengers from Rear.' Soon after the signs were painted, a group of
blacks disregarded them by occupying seats near the front of a bus. When
the blacks refused to obey the driver's request that they move to the
back, they were arrested for breach of the peace and related
infractions. They subsequently sued the bus company and the Birmingham
Board of City Commissioners, charging, among other things, that the
signs violated the Constitution by designating seating according to
race.
Judge Harlan Grooms held that the racially designated seating did not
violate the constitutional rights of the plaintiffs because it did not
constitute state action. He emphasized that according to settled law the
Fourteenth Amendment constrained only governmental and not private
decisions involving race. According to Judge Grooms, the arrangement
challenged in Boman was that of a private business and thus 'a matter
between the Negroes and the Transit Company.' In his view, the city
could not longer be charged with supporting segregation on the buses.
The new ordinance mentioned no racial discrimination on its face.
Moreover, the judge noted that ' t he evidence wholly fails to reveal
that city officials had formed any policy, actually or tacitly, to apply
the new ordinance in a racially discriminatory manner.' He recognized
that the incident leading to the arrest of the plaintiffs arose only six
days after the enactment of the new ordinance, but concluded that this
one incident showed no pattern of discriminatory state action. The
arrest, moreover, had been made without the knowledge or permission of
the city commissioners. True, the company's signs did perpetuate racial
separation. But the decisive point to Judge Grooms was that segregation
remained intact on the buses not because of any official action but
rather because it was desired by the company.
The district court's judgment was reversed by a panel of the Fifth
Circuit that included the court of appeals' most progressive members on
matters of race--Judges Elbert Tuttle and John Minor Wisdom--and its
most reactionary member--Judge Ben F. Cameron. Over Cameron's dissent,
Tuttle and Wisdom held that Birmingham was legally implicated in the bus
company's racial policy. While their opinion purported to recognize the
limits of the state action doctrine, it actually demonstrated that
doctrine's accordion-like pliability:
Of course, the simple company rule that Negro passengers must sit in
back and white passengers must sit in front, while an unnecessary
affront to a large group of its patrons, would not effect a denial of
constitutional rights if not enforced by force or by threat of arrest
and criminal action. Where, as here, the City delegated to its franchise
holder the power to make rules for seating of passengers and made the
violation of such rules criminal . . . we conclude that the Bus Company
to that extent became an agent of the State and its actions in
promulgating and enforcing the rule constituted a denial of the
plaintiffs' constitutional rights.
This language can be read narrowly to embrace only those situations
in which municipalities expressly delegated to franchise holders the
power to make seating rules and explicitly criminalized infractions of
such rules. On the other hand, it could be read broadly to embrace any
situation in which a private bus company sought to enforce racial
separation by calling upon public police--the situation in which most
bus companies and other private businesses would find themselves if
confronted by anti-segregationist demonstrators. This, however, is not
the place to explore state action theory and the problem raised by
so-called 'private' racial discrimination. That issue posed the main
theatre of struggle in the next phase of King's career, the phase
memorably punctuated by the 'Letter from a Birmingham Jail,' the 'I Have
a Dream' speech at the March on Washington, and the Civil Rights Act of
1964. For present purposes, the importance of Boman resides in the vivid
way it illustrates the recalcitrance of the old order. Because of white
resistance, the conquest of segregation was forced to proceed inch by
inch and issue by issue with exhausting and embittering exactitude.
Montgomery and its aftermath teach lessons that reflect certain
truths about the Civil Rights Movement as a whole. One is that the
Movement wrought deep and lasting changes in the United States. Another
is that law, litigation, and lawyers played a significant and frequently
praiseworthy role in accomplishing the Movement's aims. Certain currents
in the historiography of the Movement suggest that it may be useful to
argue self-consciously in favor of these propositions even though some
observers may well consider them obvious.
Some commentators resist the suggestion that the Civil Rights
Movement was largely successful. Their resistance derives from two
sources. One is a fear that emphasizing the success of the Movement will
only facilitate complacency in a political culture prone to
self-congratulation. The other is a bitter disappointment with patterns
of income, housing, education, health-care, and vulnerability to crime
that remain racially disparate. Those who emphasize continuities in the
subordinate position of the Negro both before and after the Second
Reconstruction, are often willing to concede that the Movement succeeded
in removing formal impediments that prevented blacks from enjoying
opportunities on the same basis as whites. But they insist that that
success was shallow, a boon only to those blacks who possessed the
wherewithal to walk through newly-opened doors. King himself articulated
this view in his career, questioning the value of having the right to
buy a hamburger at a restaurant if one lacked the money to purchase it.
Others have even suggested that the eradication of formal barriers
coupled with the perpetuation of substantive inequality has actually
resulted in a net loss for blacks as a group. On the one hand, the
demise of rigid, formalized racial barriers have allowed the most
resourceful blacks to 'escape' confinement in all-black institutions,
depriving these potential bases of power of valuable talent and
leadership. On the other hand, formal reforms in laws and practices have
induced large numbers of whites (and a substantial number of blacks as
well) into believing that 'racism is dead' and that, therefore, any
further difficulties experienced by blacks as a group is either 'their
own fault' or indicative of incapacity.
As to the role of law, courts, and lawyering, the perspective against
which I argue views the legal apparatus as having been either largely
irrelevant--a mere recorder of results determined in other arenas--or
largely confining. According to this perspective, the legal apparatus
deradicalized the Movement by channeling powerful energies into readily
controllable, legalistic forms. This strand in the historiography of the
Civil Rights Movement is critical even of the lawyers who worked on
behalf of the Movement. Too often, the argument runs, the lawyers'
tendency was to subordinate the aspirations of their clients to the
dictates of legalism.
While I find much of value in this perspective on the Movement, the
thrust of my analysis is different in significant respects. First, I
emphasize that formal rights matter. What are now sometimes referred to
as 'mere' formalities were anything but 'mere' in the context that King
confronted. Negroes were willing to struggle to be called 'Mr.' or
'Miss' or have the right to sit anywhere on a bus because formal racial
distinctions exercise a symbolic power that is real, albeit subtle and
nonquantifiable. Invidious racial distinctions stigmatize those upon
whom they are branded with baleful consequences that ramify throughout
the society, corrupting both those who are privileged and those who are
victimized. It does make a difference--a huge difference--that largely
because of reforms won by the Movement, blacks are legally protected in
the most significant domains against invidious racial discrimination. It
makes a difference even when those laws are evaded and even to those
who, lacking resources, cannot take advantage of their rights. Frederick
Douglass put it best in the course of responding to those who suggested
that the loss incurred by the partial invalidation of the Civil Rights
Act of 1875 was of little real significance because the bill could not
be enforced anyway. 'There is some truth in all this,' Douglass
observed, 'but it is not the whole truth. The Act like all advance
legislation, was a banner on the outer wall of American liberty, a noble
moral standard, uplifted for the education of the American people. There
are tongues in trees, books, in the running of brooks,--sermons in
stones. This law, though dead, did speak.' The law created by the
pressure of the Civil Rights Movement also speaks, has widely been
heard, and is still very much alive.
There are hard empirical facts that can be marshalled to support the
proposition that in terms of employment, voting, and education, the
Movement effected a remarkable transformation in the power and
opportunities available to black Americans. That proposition is not
defeated by pointing out that more affluent blacks have been the ones
most able to benefit from the demise of formal racial restrictions.
First, in at least some notable contexts, the poorer sectors of black
communities were the ones most directly benefitted by desegregation;
prior to the struggle in Montgomery, middle-class blacks had avoided Jim
Crow seating by driving their own cars.
Second, those who deprecate the accomplishments of the Movement by
reference to the consistently dismal state of the black underclass
measure the Movement by indicia that fail to correspond to its primary
aim. The central goal of the Civil Rights Movement was to eradicate
racial barriers that impeded the aspirations of blacks. Over time, some
Movement leaders, including King himself, became increasingly aware of
the intimate relationship between racial and socio-economic impediments
and tried to broaden and reorient the Movement's aims; indeed, some of
the Movement's personnel joined the 'war against poverty.' But for the
most part the Movement remained focused rather narrowly on racial as
distinct from class discrimination and achieved in that concededly
limited area rather remarkable results.
Another reason for emphasizing, as I do, change over continuity, is
that the most impressive and consequential accomplishment wrought by the
Movement is now so often overlooked: the transformation of the
consciousness of millions of Americans, but particularly southern
blacks. The arduous, painful, and dangerous process of creating new
rights and exercising old ones forced blacks to confront not only their
oppressors but also themselves. More specifically, they were forced to
confront and overcome the inhibiting feelings of inferiority the
oppression often breeds. That is why to Martin Luther King, the primary
importance of the Montgomery Bus Boycott resided in its demonstration
'to the Negro . . . that many of the stereotypes he had held about
himself are not valid.' In Montgomery, as in other locales, the act of
attempting to change the world broke the spell of Negro acquiescence.
Law played a central part in this as in other aspects of the
Movement's struggle. King and his associates met defeat of various sorts
in the legal arena. But much of the current thinking about law and its
relationship to the Movement unduly minimizes the benefits that blacks
received through their participation in state and federal judicial
forums. Litigation served as the Negro's most successful and aggressive
form of political activity throughout the first half of this century.
And even after that activity was supplemented by other forms of
protest--boycotts, sit-ins, marches, riots--litigation continued to
serve valuable functions apart from helping to shape the legal issues at
stake. Courtrooms provided one of the few contexts in American history
in which a cadre of Negroes--the Movement's black lawyers--bested whites
in an intellectual-professional setting on a consistent and
highly-public basis. When Alabama prosecuted King for violating the
state's anti-boycotting statute, his attorneys transformed a hostile
courtroom into an empowering forum in which the target of state power
fared better politically than the state itself. Similarly invigorating
was Gayle v. Browder. To be sure, the judicial victory alone would not
have been nearly as significant without the mass boycott from which it
arose, for the boycott facilitated active participation on a scale
impossible for any lawsuit. At the same time, it is important to
appreciate that without the suit and the eventual support of the Supreme
Court, the boycott may well have ended without attaining any of its
expressed goals, a result that may have been cruelly discouraging. In
retrospect, it appears that King and the MIA reaped the best of both
extra-legal protest and litigation, the grass-roots participation
generated by the former and the official legitimation bestowed by the
latter.
The successes of the legal struggle helped to create a state of mind
the was absolutely essential to the Movement, a consciousness that King
articulated with more power and grace than anyone: a sentiment of
righteous outrage. As Barrington Moore aptly observed:
People are evidently inclined to grant legitimacy to anything that is
or seems inevitable no matter how painful it may be. Otherwise the pain
might be intolerable. The conquest of this sense of inevitability is
essential to the development of politically effective moral outrage. For
this to happen, people must perceive and define their situation as the
consequence of human injustice: a situation that they need not, cannot,
and ought not to endure.
By winning in court and forcing segregationists to go outside the law
to maintain their power, the Movement's litigators helped to erode the
facade of inevitability that surrounded the segregation regime and to
create the perception of a gap between right and reality, authority and
force. Here it is useful to recall the speech with which King launched
the boycott in Montgomery. 'We are not wrong,' he told his listeners.
For 'if we are wrong, then the Supreme Court of this Nation is wrong.'
The boycott made black Montgomerians aware of themselves as a
community with obligations and capacities to which they and others had
previously been blind. On the eve of the boycott, few would have
imagined the latent abilities that resided within that community. The
protest elicited and clarified those abilities. On the eve of the
boycott, few black Montgomerians would have considered themselves as
persons with important political duties. The protest inculcated and
enlarged their sense of responsibility. Moreover, by publicizing their
willingness and ability to mobilize united opposition to Jim Crow
practices, the protesters in Montgomery contributed a therapeutic dose
of inspiration to dissidents everywhere. Later developments would attest
to the influence of the boycott as a role model that encouraged other
acts of rebellion. Participants in subsequent protests remember
Montgomery as a distinct, encouraging presence.
With the whole world watching, black Montgomerians grew in stature to
fill the roles that fate and their own efforts had created for them.
Indicative of the community's growth was the steadfast support that
enabled Martin Luther King to emerge as the leader of the boycott
movement. Factionalism had previously crippled potential black leaders.
During the boycott, however, that problem was largely overcome.
Promoting King's leadership constituted an achievement along another
dimension as well. For the support he received displayed not only an
impressive unity but also good judgment. King vindicated the tremendous
investment staked upon his ability to lead and represent the black
dissident community of Montgomery. He did so by recognizing not only the
power but also the limits of law. 'The enforcement of the law,' he later
observed, 'is itself a form of peaceful persuasion. But the law needs
help.' He continually provided that help by presenting to the nation in
a most attractive form the case for protest and against segregation. No
one in his generation would prove to be as talented as he in the art of
public persuasion. And no period in his illustrious career would prove
to be more impressive or consequential than the year of the boycott,
what King once described as 'our twelve months of glorious dignity.'
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