Little Rock and the Law

...It has long been established that, if "state officials, purporting to act under state authority, invade rights secured by the Federal Constitution, they are subject to the process of the Federal courts in order that the persons injured may have appropriate relief" (Chief Justice Hughes in Sterling v. Constantin [1932...

...For one in my place sees how often a local policy prevails with those who are not trained to national views...

...He directed Major-General Sherman T. Clinger, Adjutant General of the Guard, "to place off limits to colored students those schools heretofore operated and recently set up for white students...

...A summons and ropy of the petition were served on Faubus, Clinger and Johnson...

...It involved a clash not only between Federal and state authority, but also between slate and local authority...

...The Governor expressed the opinion that violence would break out if integration were to proceed at Central High...

...In a public statement justifying his action, the Governor reiterated that he moved to preserve public peace and good order in Little Rock...

...The recently enacted Civil Rights Act did not deprive the President of the power to call the Arkansas National Guard into the Federal service or use other armed forces of the United States to uphold the authority of the Federal courts...

...Arkansas statutes make the Governor the commander-in-chief of the military forces of Arkansas (including the Arkansas National Guard) "except when they shall be called into the actual service of the United States...

...Whether the injunction should be suspended pending the appeal is for the court to decide, but it is likely to be guided by the recommendation of the United States attorneys...

...The Supreme Court has never accepted the view espoused at different times in our history by different states of the Union, in the North as well as the South, that a state has authority, superior to that of the Court, to decide for itself Constitutional questions affecting its citizens, or to suspend, even for a limited time, the operation of Federal law within its borders...

...People are coming to me," Faubus testified, "and saying, if Georgia doesn't have integration, why does Arkansas have it...

...When South Carolina passed its Nullification Ordinance in 1832, Jackson sprang to the defense of the Union and is reported to have stated that he would enforce any decision the Supreme Court rendered in the case which is said to have provoked the famous words above...

...In Little Rock, the situation may well have called for a quicker show of firmness...

...His disposition of the case was approved by the Court of Appeals for the Eighth Circuit on April 26, 1957...

...Carried to its logical conclusion, the rule would result in the civil authorities suppressing lawlessness by compelling the surrender of the intended victims of lawlessness...

...His article, "Jury Trials and Civil Rights" (NL, April 29), was instrumental in the enactment of the Civil Rights Act passed this summer...

...in another case involving the enforcement of a Supreme Court judgment against a state, said, "It is to be hoped that enough has been decided for patriotism, the fraternity of the Union and mutual consideration to bring [the controversy ] to an end...

...The Supreme Court intended public-school integration to proceed in the face of Southern resistance...

...The next morning, National Guardsmen surrounded Central High...

...And no President of the United States, to my knowledge, has ever refused to enforce an order of a Federal court—not even the much-maligned Andrew Jackson...

...They empower him to call up these forces in case of "insurrection, invasion, tumult, riot or breach of the peace, or imminent danger thereof, or to preserve the public health and security and maintain law and order...

...When the Commission indicated that it would obey the Federal court, Governor Sterling issued his own instructions to the commanding general of the Guard to enforce limitations inconsistent with the Federal court order...

...When the law officers of the United States were finally called in on September 9, they could have been asked to prepare a temporary restraining order commanding the Governor forthwith not to interfere with the integration order...

...Little Rock Mayor Woodrow W. Mann has maintained that it was not necessary to call out the National Guard because violence was never seriously threatened and his police force was able and willing to effect peaceful integration at Central High...

...In 1872, Tarble's Case gave Mr...

...The New York Times has also reported that most civil, religious, educational and business leaders in Little Rock support the integration plan which was patiently explained to them by Superintendent Blossom in hundreds of meetings extending over a two-and-a-half-year period...

...The possibility remains, however, that other Southern officials will use his pretext of ''threatened violence" to stall integration...

...Surely...

...The Federal Government was brought directly into the case on September 9, when Judge Davies requested the Attorney General of the United States and the United States Attorney in Arkansas to appear as amid curiae (friends of the court) to give the court "the benefit of their views and recommendations...

...But on September 4 National Guardsmen forcibly prevented 9 Negro children from entering Central High...

...The United States attorneys were asked to file a petition on behalf of the court against Governor Faubus, Major-General Clinger and Lieutenant-Colonel Marion E. Johnson, Unit Commander of the National Guard, to enjoin them from obstructing or interfering with the carrying out of the court's integration order...

...The ease against them was set down for hearing on September 20...

...Justice Field the occasion to elucidate the nature of our Federal system...

...He could be indicted for the crime of wilfully depriving the Negro children of their Constitutional rights and, if found guilty by a jury, subjected to a fine of $1,000 or imprisonment for one year or both...

...In attempting to effect such a widespread social change as racial integration in the South, the Federal courts are wise to proceed in a way that will minimize the possibility of violent community reaction...

...In the 1932 case, a Federal court had enjoined the carrying out of certain Texas Commission orders limiting oil production, even though Governor Ross Sterling had declared martial law and instructed the Texas National Guard to occupy the oil fields in order to enforce the Commission's orders...

...A rule which would permit an official, whose duty it was to enforce the law, to disregard the very law which it was his duty to enforce, in order to pacify a mob or suppress an insurrection, would deprive all citizens of any security in the enjoyment of their lives, liberty or property...

...John Marshall has made his decision, now let him enforce it...

...The Government will face the same question of strategy if Judge Davies issues a temporary injunction after the September 20 hearing and the Governor appeals...

...The use of troops or police for such purposes would breed violence...

...There could be but one final result, namely, a complete breakdown of government and a resort to force both by the law-abiding and the lawless...

...Thomas Fuller...

...Upholding the rule of law, the Chief Justice added that the "Governor of the state is in no different position from that of other state officials...

...Prepared by School Superintendent Virgil T. Blossom, the plan called for integration of the senior high schools this fall, the junior high schools beginning in 1959 or 1960, and the elementary schools not later than 1963...

...The all-white Central High School can accommodate about 2,500 students, the all-white Technical High School 250 students, and the all-Negro Horace Mann High School 925 students...

...Well...

...It was planned that, with integration, Technical High would become a city-wide school for all students, while Central and Horace Mann, together with the newly built West End High, would each have separate attendance areas...

...Justice Holmes, who...

...And delay is their only immediate objective...

...It is doubtful whether Jackson ever said...

...The board appealed immediately to the Federal District Court...

...Granting all this, however, will not justify the Governor's action in the eyes of the Federal courts, which in the past have enjoined similar use of the National Guard by a Governor...

...and a person accused of murder could be properly surrendered to the mob which threatened to attack the jail in which he was confined...

...They "control the constitution and laws of the respective states and cannot be controlled by them," announced Chief Justice John Marshall in the historic case of McCulloch v. Maryland (1819...

...On September 7, the school officials asked the court to suspend enforcement of its integration order, but Judge Davies refused, telling them that it was their duty to adhere to their own approved plan of gradual integration...

...Efforts to carry out a Federal court order to integrate the senior high schools of Little Rock, Arkansas have provoked the first significant clash between Federal and state power since the Supreme Court's 1954 and 1955 decisions in the school-segregation cases...

...It would constitute an assurance to those who resort to violence to attain their ends that, if they gathered in sufficient numbers to constitute a menace to life, the forces of law would not only not oppose them, but would actually assist them in accomplishing their objective...

...the citizens kept off the streets to prevent holdups...

...Justice Holmes said: "I do not think the United States would come to an end if we [the Supreme Court] lost our power to declare an Act of Congress void...

...It's getting almost so bad a colored man hasn't got any country...

...But it took the Civil War to finally resolve the issue...

...Unlike Governor Faubus, the Texas Governor did not claim that he used the Guard to aid the civil authorities, and he arrogated to himself the power to legislate...

...And in 1920 Mr...

...Fortunately, ours is « government of law, not of men...

...When Guardsmen entered the plant, forced the people at work to leave and occupied the premises, allowing admission only to six maintenance men on military passes issued by the Guard commander, the Federal court did not hesitate to enjoin the Governor, the Mayor and the Guard commander from interfering with the company's lawful use of its property (Strutwear Knitting Co...

...the post office locked to prevent the mails being robbed...

...v. Olson [1936...

...This is not an unusual request for a court to make in cases in which it thinks, as Judge Davies did, that "the public interest in the administration of justice'' is involved in private litigation and should, therefore, be represented...

...Every one of these arguments has been made before and sharply rejected by the Federal courts...

...to remove, and not to create, obstructions to the exercise by the complainants of their rights as judicially declared...

...Governor Orval Faubus was the principal witness on her behalf...

...Carl Auerbach is professor of law at the University of Wisconsin...

...He could be sued for damages by the Negro children...

...It results in the restoration of peace and order at the sacrifice of law...

...It has a direct, even though dishonorable, relation to the maintenance of order, but no relation at all to the preservation of law...

...He could be proceeded against for contempt, both criminal and civil...

...In the first fortnight of the crisis, the Federal Government did its utmost to avoid precipitating a showdown...

...Armstrong denounced Eisenhower as "two-faced...

...If they do not oppose a request for suspension, it will probably be granted...

...Rejecting further trips abroad under Government auspices, he said: "The way they are treating my people in the South, the Government can go to hell...

...That is why Faubus bowed to the injunction against him...

...to aid in making its process effective and not to nullify it...

...Governor Faubus will heed the wise words of Mr...

...He argued that it was his duty as Arkansas's chief executive to call out the National Guard if he thought it was necessary and that he was accountable for this step only to the people of Arkansas, not to any Federal judge...

...He has sworn to enforce all laws and to protect all citizens, and there is no escape for him 'from the paramount authority of the Federal Constitution.' "The fact that a large group of individuals may have a grievance, just or unjust, . . . will not warrant a resort to violence to remedy that grievance, nor will the hazard, inconvenience and expense involved in suppressing the violence justify the state in refusing to enforce the law...

...Be you never so high, the law is above you...

...That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments...

...If this position was well taken, the Chief Justice said, "the fiat of a state Governor and not the Constitution of the United States would be the supreme law of the land...

...On May 24, 1955, the Little Rock Board of Education approved a plan for gradual integration of the public schools in its district...

...Under these circumstanccs, quick, cncrgetic action may have been necessary to vindicate moderate local sentiment as well as Federal authority and to discourage extremists elsewhere...

...Five days before school was to open in Little Rock, Mrs...

...On the night of September 2 (school was to open the next morning), Governor Faubus ordered units of the Arkansas National Guard to be stationed at Central High...

...He said that anti-integration feeling had risen in the preceding three weeks, "triggered" by the August 22 speech of Georgia's Governor Marvin Griffin to the Capital Citizens Council...

...As of May 1956, there were 3,126 white and 929 Negro students in Little Rock senior high schools, 3,831 white and 1,252 Negro students in junior high schools, and 9,285 white and 3,303 Negro students in elementary schools...

...Behind the court's order would stand the armed might of the United Stales...

...Governor Faubus claims not to be challenging the supremacy of the Federal Constitution, which he is sworn to uphold...

...In the course of his speech, according to the Southern School News for September 1957, Governor Griffin stated that he would use the highway patrol if necessary to resist integration in Georgia and, if that didn't work, would enlist "every white man in Georgia...

...Because of this testimony, Chancellor Murray 0. Reed issued an injunction ordering the school board not to proceed...

...But the Chief Justice also said that the proper use of a Governor's power to bring military force to the aid of civil authority is "to maintain the Federal court in the exercise of its jurisdiction and not to attempt to override it...

...I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states...

...It is apparently the Governor's principal contention that he acted in good faith to discharge his duty under Arkansas law because he honestly believed, and had reasonable ground for believing, that it was necessary to use National Guardsmen to prevent Net:ro children from entering Central High in order to head off a "riot or breach of the peace...

...The banks could be closed and emptied of their cash to prevent bank robberies...

...Judge Ronald N. Davies of Fargo, North Dakota (appointed by President Eisenhower in 1955 and temporarily assigned to the Federal court in Little Rock) responded...

...This does not mean that a halt should be called to the march of integration whenever violent resistance is threatened...

...Court Precedent and Federal Policy Little Rock and the Law By Carl A. Auerbach Two weeks after Arkansas Governor Orval Faubus sent National Guardsmen to halt integration at Little Rock's Central High School, and a week after President Eisenhower conferred with Faubus, jazzman Louis Armstrong said that he had had enough...

...Southern recalcitrants will have forged a powerful weapon of delay...

...Article VI of the Constitution declares that the Constitution and the laws of the United States "shall be the supreme law of the land...

...If an injunction is issued against Governor Faubus and not stayed pending appeal, the issue of Federal or state supremacy will be sharply posed...

...Hence, Central High, reputedly the best in Arkansas, became the place of conflict...

...Whether this go-slow approach was justified is a difficult question to answer...

...That surrender to the demands of a public enemy in time of war or accession to the demands of insurrectionists or rioters, at other times, is one way of restoring peace and quelling disorder, no one will deny...

...In upholding a Federal decree ordering the Governor not to interfere in any way with the lawful production of oil, Hughes attacked the argument that the Governor was not answerable for his actions in the Federal courts...

...After all, the basic national objective is to have Negro and white children go to school together—an objective which cannot be achieved without the acquiescence, if not cooperation, of the white community...

...No Negro child tried to enter...

...There are within the territorial limits of each state," he explained, "two governments, restricted in their spheres...

...It is significant that in Clinton, Tennessee, where a firm stand was taken last year, 8 Negro students began classes at Clinton High this year without, the Times reported, "so much as a discernible hard look from white students...

...The two governments in each state stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories...

...It is certain that, while the state government is functioning, it cannot suppress disorders the object of which is to deprive citizens of their lawful rights, by using its forces to assist in carrying out the unlawful purposes of those who create the disorders, or by suppressing rights which it is the duty of the state to defend...

...Finding that the school authorities were proceeding in good faith to accomplish integration "at the earliest practicable date," District Judge Miller refused to upset the plan...

...On February 8, 1956, Negro school children brought an action in the Federal District Court in Little Rock, charging that the approved plan did not make the "prompt and reasonable start" toward integration which the Supreme Court required...

...Clyde A. Thomason, secretary of the Segregationist Mothers League of Central High, brought suit in the Chancery Court of Pulaski County, Arkansas to compel the school officials to halt integration at the high school...

...Few doubt that Federal authority will ultimately prevail, but whether the cause of peaceful integration will have been advanced by the Little Rock crisis is more doubtful...

...On August 30, he invalidated the Chancery Court injunction and enjoined Mrs...

...and the law, as Professor Auerbach shows, is clear...

...Thomason and "all persons, in any manner, directly or indirectly from interfering with the plan of integration...

...Gravest of all, if he attempted to use any armed force to obstruct the carrying out of the court's order, he might be guilty of treason against the United States by "levying war against them'- within the meaning of Article III, Section III of the Constitution...

...Precisely this position was taken by a Federal court when Governor Floyd B. Olson of Minnesota, at the behest of the Mayor of Minneapolis, called upon the National Guard to close the struck plant of the Strutwear Knitting Company in order to prevent injury to lives and property...

...But the crucial question in each case is whether appeasement or firmness is most likely to assure integration without provoking violence...

...Its opinion answers the major questions raised by the Arkansas Governor, as the following excerpts will show: "No official entrusted with the enforcement of the law can select the laws which he will enforce or the citizens that he will protect...

...If this happens, Federal authority will ultimately be vindicated but Negro children will not attend Central High this year...

...But he retained jurisdiction of the case in order to assure that the approved plan was effectuated...

...This petition was filed on September 10...

...The school officials asked Judge Davies for instructions and were told to proceed "forthwith" to carry out the integration plan...

...To flout the court order would subject the Governor to heavy penalties...

...However, no Negroes live in the West End High area...

...As early as September 4, when National Guardsmen barred the doors of Central High to Negro students, Governor Faubus might have been proceeded against for contempt of court because he disobeyed and resisted the court's injunction of August 30...