Nine Men Against America - Rosalie Gordon

The Supreme Court Makes a Law

In order to bring about this revolution of totalitarian proportions, it was necessary for Chief Justice Warren and his colleagues to ignore 165 years of Supreme Court history and a decision of the Court that had stood unchallenged for nearly 60 years.

In 1896 a case (Plessy v. Ferguson) came before the Court involving a state law. Louisiana had a statute providing for segregation of races on railroad trains. The law was challenged on the ground that it violated the 14th Amendment to the Constitution. The Supreme Court decided that, since the Louisiana law provided for "separate but equal" facilities, it was not in violation of the Constitution. In other words, the Court affirmed that when a state provided the same facilities, even though they be physically separated, for whites and Negroes (or impliedly for girls and boys or men and women) it was fulfilling its duty under the Constitution. In this case the Court was carrying out its historic function under the Constitution. The problem of segregating or not segregating the races was a state problem.

The State of Louisiana, exercising its sovereign function, passed a law providing for segregation. The only question to be settled by the Court was whether or not that law violated any provision of the Constitution. The Court did not say to Louisiana: you must segregate, or you must not segregate. It simply said that because the Louisiana law, while providing for segregation, also provided for separate but equal facilities, Louisiana had fulfilled her obligation under the 14th Amendment to the Constitution.

Actually, this was not the first, or the last, time the question came before the Court. It arose at least six separate times in a period of 75 years. And each time the Supreme Court upheld the doctrine of equal but separate facilities.

Forty-six years ago, in 1912, Justice Charles Evans Hughes, speaking for the Court, remarked that the question could "no longer be considered an open one." In other words, under the Constitution it was settled. This naturally raises the query: why did the Supreme Court agree to hear the school cases in the first place? The Court is its own judge of what cases it shall and shall not consider and decide upon. (This brings us up against a situation in the Court which has been too little publicized—that of the role of those "bright young men" who serve as law clerks to the justices. We will consider them, and their influence, more fully a little later).

Following the 1896 decision, the Supreme Court in several cases involving schools upheld that eminently fair—and constitutional—interpretation of the 14th Amendment and the rights of the states (Cummings v. Board of Education, (1899) and Gong Lum v. Rice, (1927)). We must remember that only the states—three-fourths of them—can ratify an amendment to the Constitution. The highest courts of 23 of the states which adopted the amendment had held that it did not abolish segregation. Of equal importance is the fact—so well stated by James Jackson Kilpatrick (in The Sovereign States) after a thorough review of all the evidence—that:

"Neither the Congress that proposed the 14th Amendment, nor a single one of the thirty-seven States that considered it, understood that the amendment, of and by itself, outlawed segregation by race in the public schools."

There can be no better evidence of the truth of this statement than that the Congress which approved the 14th Amendment simultaneously passed a law establishing segregated schools in the District of Columbia. And when the Supreme Court included such a distinguished judge as Chief Justice Taft, and such heroes of the "liberals" as Justices Holmes, Brandeis, and Stone, it said unanimously that segregation in public schools had been

"Many times decided to be within the constitutional power of the State legislature to settle without interference of the federal courts under the Federal Constitution."

Faced with a body of law and precedent like this, what was the Warren Supreme Court to do? It did something unprecedented in our history. It threw out the window the Constitution and all previous Court interpretations, and arrogated to itself a function reserved only for our representatives in Congress. It wrote a new law—something the Supreme Court has no right to do—and proclaimed it the law of the land by judicial fiat. The Congress of the United States—the only body to which the Constitution gives law-making powers—has never passed a law forcing the races to be mixed in the public schools. If it had, it would then have been up to the Supreme Court to say whether the law was constitutional or not. In the light of our past constitutional and judicial history, a lawful Court would have had to declare such a law unconstitutional, since it would be an obvious invasion by the Congress of a purely state function.

But the Warren Court did what Justice Black (who concurred) had once accused President Truman of doing—it usurped the legislative function of the Congress. It wrote a law—a law based on the very doubtful psycho-sociological precept that if the races went to separate schools, it would retard the development of the Negro children. It might just as well have said that the development of the girls who attend Julia Richman High School in New York City is being retarded because there are no boys in the school! Dr. Pitirim A. Sorokin, one of our most distinguished students of sociology, has said of this combination of sociology and psychology that both "are in a blind alley of subjective and evanescent hearsay trivia. In our courts most of this 'hearsay stuff' is rejected as evidence." But not in the Supreme Court of the United States. It wrote a law based on this pseudo-science of "hearsay trivia." It departed entirely from the constitutional question involved, and took upon itself the issuance of a ukase in the field of pedagogy—and a doubtful pedagogy at that, since it is based on a doubtful psycho-sociological "science." It said that Negro children would be retarded in their development if they were not mixed with white children in the schools because this "generates a feeling of inferiority as to their status." Those are the Court's words.

This brought a stinging rejoinder (in the Richmond Times-Dispatch, Aug. 23, 1955) from Mrs. Zora Neale Hurston, a most distinguished American writer and playwright, who is a Negro. She is one of the few members of her race who have had the courage to speak out despite the pressures of the NAACP. Mrs. Hurston declared:

"The whole matter revolves around the self respect of my people. How much satisfaction can I get from a Court order for somebody to associate with me who does not wish me near them? The American Indian has never been spoken of as a minority and chiefly because there is no whine in the Indian. Certainly he fought, and valiantly, for his lands—and rightfully so. But it is inconceivable of an Indian to seek forcible association with anyone. His well-known pride and self-respect would save him from that. I take the Indian position. . . .

"I regard the ruling of the United States Supreme Court as insulting rather than honoring my race . . . In the ruling on segregation, the unsuspecting nation might have witnessed a trial balloon. A relatively safe one, since it is sectional and on a matter not likely to arouse other sections of the nation to the support of the South. If it goes off fairly well, a precedent has been established. Government by fiat can replace the Constitution."

Yet it was to enforce this unlawful "law" of the Supreme Court that we have since had the sorry spectacle of the President of the United States sending federal troops into a sovereign American state.

The principle involved in the President's action in Little Rock, Arkansas, had nothing to do with the merits of integration or segregation. Sending federal troops into a sovereign American state under such circumstances was a clearly illegal act by the President. The United States Code—the body of law which governs the United States—contains a section passed in 1878 known as the "posse comitatus act." It was restated and recodified by Congress on August 10, 1956. It states:

Whoever, except in cases and circumstances expressly authorized by the Constitution or act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

Only a nation drugged by twenty years of communist-socialist propaganda, and a group of politicians in Congress with one eye on the Negro vote in the North, could have sat by and permitted the Executive to get away with this unlawful intrusion upon the rights of the sovereign states. We have since had an interesting, though inadvertent, admission of the illegality not only of the President's action but of the Supreme Court's as well, from the New York Times (Dec. 8, 1957).

When the federal government forced the Governor of Arkansas to withdraw the state militia from a high school in Little Rock, some rioting broke out around the school before the federal troops arrived. The federal government made threats about the arrests and prosecutions which awaited the rioters when the federal law-enforcement officers caught up with them. Several months went by and nothing happened, so the New York Times sent a reporter to find out why. He declared that the Department of Justice was not to blame for failing to prosecute, because—in the words of the New York Times:

"The basic fact is that, under the Constitution, the job of maintaining order locally is given almost entirely to the states, not to the federal government. Thus the federal government has no constitutional power to punish an ordinary breach of the peace or assault."

But the gravamen of the Times' story was this:

"It [the federal government] can reach that kind of offense only if some federal right is involved, and then only if Congress has passed a specific statute to cover the offense".

But so far as the Supreme Court's decision in the segregation cases is concerned, the socialist revolutionaries in America now have what they want—the opening wedge for complete control of education by the central government.