Justice for All (59 page)

Was Langer looking ahead to the next elections as he contemplated Warren's fate? If so, he was either scheming or prophesying. In 1956, Langer, nationally renowned in part for his stand against the controversial Earl Warren, would be urged to run for president of the United States. The American Rally, in its newspaper (“The Newspaper That Believes in the American People”), championed “Fighting Bill Langer” and titled its series on the senator “The Making of a President.”
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Later that year, the newly formed Pioneer Party, affiliated with the American Rally, convened delegates from sixteen states and drafted Langer as its nominee. Although Langer declined the third-party nomination—accepting it would have cost him his seniority in the Senate—the party picked him anyway. For his running mate, its nominee for vice president of the United States, the Pioneer Party chose Burr McCloskey.

Langer emerged from the hearings better known, if not better liked. Warren came through them having felt the sting of a legislative power not to legislate but to defame. And having felt that lash against himself, he did not need to consider the effect of legislative inquiry in the abstract. Two days after the public airing of the laundry list of allegations against Warren, a Philadelphia man named Burton Crane wrote to the chief justice to express his sympathy and outrage. Warren, he suggested, might well learn something from the experience he was undergoing:

 

The message was received.

Chapter 17

ALL MEN ARE CREATED EQUAL
¹

VERNON L. PARRINGTON
²

 

 

 

 

 

 

AMERICA'S DECLARATION OF INDEPENDENCE proclaims that all men are created equal—endowed by the same Creator, they are equally entitled to unalienable rights, among them life, liberty, and the pursuit of happiness. Government, the drafters of that profound and poetic document concluded, exists not to bestow but merely to secure the God-given rights of men. So elemental was that charge that the Declaration reserved for the people the right to destroy a government that failed to protect its people's rights. America's Constitution, struck just eleven years later, makes no such promises or threats. The Constitution was a triumph of ingenuity and a model of compromise, but its rights were more stingily proffered, and it brought into being a nation that embraced slavery, not to mention the disenfranchisement of women and most landless workers. The nation was the Constitution's victory; slavery was its curse. The trade dehumanized its victims and debased its practitioners while warping both the economy and the morality of the American South. Slavery recalculated values, aroused furies, and undermined America's place at the head of human liberty. And most perniciously, because the Constitution accepted slavery in order to make a union, it stood between America and its own Declaration. As late as the mid-twentieth century, the Declaration was best understood as a grand but unfulfilled pledge.

It was that chasm—between the ideals that gave birth to the nation and the rules that it chose to govern itself—that was responsible for America's defining trauma, its soul-wrenching debate over the place of blacks in American society. As presented to the United States Supreme Court in the early 1950s, the broad question for the justices, one burdened with nearly two centuries of neglect, was this: Were black men and women—whose ancestors were brought to this country in bondage, then freed into a world of legal oppression—to be allowed the full blessings of liberty promised by the Declaration, or were they to remain subjugated by law as well as custom?

While that was the question the justices knew they faced, the cases upon which they were to write the answer were, as cases always are, more narrowly cast. In this instance, the specific issue—presented to the Court prior to Warren's arrival but there still for him to decide—was whether Negro boys and girls were constitutionally entitled to attend the same public schools as white boys and girls. Much of the nation's history and of the Court's jurisprudence suggested they were not.

To understand why not, one must briefly step back to the end of the Civil War and the reunification of the nation under the postwar constitutional amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments to the original Constitution. Those amendments, respectively, freed the slaves, promised the full rights of citizenship and equal protection of the laws to those who had been freed, and prohibited withholding of the right to vote on account of “race, color or previous condition of servitude.” Of the three, the Fourteenth was the amendment with the most far-reaching implications, as it extended to all American citizens the “privileges and immunities” of their citizenship, regardless of the state in which they lived. Moreover, it promised those citizens due process of law against any attempt to deny them life, liberty, or property and guaranteed, for the first time, the “equal protection of the laws.”

The language of the Fourteenth Amendment would seem to speak for itself, but it was written in an era of casual discrimination. Indeed, the same Congress that passed the amendment also continued to fund segregated schools in Washington, D.C. As applied by the Supreme Court in the late nineteenth century, the Fourteenth Amendment thus came to stand for protections far different from those suggested by its plain language. Through a series of rulings after the amendment's adoption in 1868, the Court used it to protect contracts and corporations but withheld its guarantees from those whom the amendment was pointedly intended to help, Negro Americans. As the century drew to a close, the Court read into the amendment segregation itself, a finding it explicated in one of the most intellectually dishonest rulings in its history,
Plessy v. Ferguson
.
³

Homer Plessy was a man seven-eighths and by all appearances white. Even that thin rivulet of Negro blood in him was too much for Louisiana, which required him and all other Negroes to ride in black-only railroad cars. Louisiana's law was plain discrimination, but state authorities contended it did not violate the Fourteenth Amendment's guarantee of equal protection, because those cars were “equal” to the cars set aside for whites. Plessy challenged that rule, sat in the car reserved for whites, and was arrested. He was convicted of violating Louisiana's law and appealed his conviction all the way to the United States Supreme Court, which took the case in 1896. The purpose of the Fourteenth Amendment, the justices conceded, “was undoubtedly to enforce the absolute equality of the two races before the law.” But, they added, “in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”
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As Richard Kluger, in his defining account of the Court and desegregation, aptly points out, one might well ask of the
Plessy
authors: Why not? Why couldn't the Fourteenth Amendment have been intended to abolish distinctions based upon color when that is precisely what its language purports to do? And what, by the way, was meant by “in the nature of things”? Most appallingly, the Court had the audacity to blame Negroes for assuming that the establishment of separate facilities was intended to demean them. “The underlying fallacy of the plaintiff's argument,” the Court ruled, lay in “the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
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There are few instances in American history where men of such esteem have joined in a decision that was more hardhearted or more plainly false.

The one justice who disagreed, Justice John Marshall Harlan, denounced the opinion's deprivation of liberty and equality. Harlan did not deny his own pride of race—his opinion specifically trumpets his belief that whites dominate society and predicts they will continue to—but for him and him alone on his Court, the Constitution was not the place to write one's prejudices:

 

Notwithstanding that, the Court's ruling in
Plessy
became the law. An ebullient South embraced it and used it to construct Jim Crow, the separate society for American blacks. Blessed and encouraged by the Court, that separation had become all but complete by mid-century. Theaters, parks, beaches, courtrooms, drinking fountains, public bathrooms, trains and buses, restaurants, and schools all were separated by race.

Against that tide rowed a few lonely but determined advocates, chief among them Charles Houston and Thurgood Marshall. Houston was an austere man driven by an abiding purpose, the construction of a civil rights strike force under the banner of Howard University, whose law school he transformed and whose students he inspired. Marshall was cut from different cloth, but stood out among those whom Houston had tutored. Witty and earthy, energetic and stubborn, Marshall grew up in a middle-class black Baltimore neighborhood, raised by tough parents and stern teachers who attempted to squeeze scholarship out of the mischievous boy. Luckily for Marshall—and the nation—his elementary school principal would punish his misbehavior by making him read and memorize sections of the Constitution. He was in trouble so frequently, Marshall would recall later, “before I left that school . . . I knew the whole thing by heart.”
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He studied first to be a dentist, but switched to the law when he clashed with a biology professor. Marshall's law school options were limited, however: the University of Maryland law school in the early 1930s did not admit blacks. Accepted instead at Howard, Marshall studied under Houston and then joined him in one of the defining crusades of American political history: the painstaking, brave quest to roll away the nation's segregation laws.

At first, the education cases were aimed not at the “separate” or segregationist prong of
Plessy
but rather at its command that such separate facilities be “equal.” Marshall, Houston, and their colleagues accepted, for a time, the existence of segregated schools but demanded equal pay for Negro teachers, and later fought for equal educational facilities. In 1935, Marshall made the University of Maryland pay for its unwillingness to admit him when he successfully sued to force its integration. Three years later, Houston brought a similar case to the United States Supreme Court, where he argued on behalf of Lloyd Gaines, a promising student who was president of his class at Missouri's black college, Lincoln University. Gaines wanted to go to law school, but Missouri offered no legal education for blacks. Instead, it proposed to give him a scholarship to study elsewhere or to open a new law school at Lincoln just for Gaines.
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Neither option appealed: Gaines wanted the advantages of studying law in his home state, and he well knew that a one-man law school was no law school at all.

Charles Evans Hughes wrote for the majority that rejected Missouri's solution. “The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly on the equality of the privileges which the laws give to the separated groups within the State,” Hughes wrote. “The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege.”
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Hughes's opinion for the Court breathed new commitment into equalizing educational opportunities, but it notably did not attack segregation itself. If schools were equal, they could still be separate (the bitter, aging Justice McReynolds would not have given even that much; in dissent, he noted that Missouri could opt now to close its law school for whites or could break down segregation and, in the process “damnify both races.”
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).

Gaines
gave Marshall and Houston a significant new tool for attacking separate-but-equal, and through the 1940s they wielded it again and again at states that were offering a façade of equal education to blacks. Those cases, which were collectively referred to as the “graduate-school cases,” were among the proudest of Chief Justice Vinson's tenure, though they did not accomplish as much as he and some observers have suggested. In 1946, the University of Oklahoma refused to admit Ada Lois Sipuel, and she sued. Oklahoma courts upheld the university's right to discriminate against her, but she pressed her cause. The Supreme Court heard argument on January 7 and 8 of 1948 and ruled less than a week later, brusquely reminding the Oklahoma courts of the
Gaines
decision and stating unequivocally that Sipuel was “entitled to secure legal education afforded by a state institution.” Oklahoma, the justices declared in their brief per curiam opinion, was obligated to provide it to her “in conformity with the equal protection clause of the Fourteenth Amendment.”
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