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PAGE 2—MARCH 1956—SOUTHERN SCHOOL NEWS
Interposition
(Continued from Page 1)
national government, which neces
sarily includes the ancillary power
to determine for themselves the
question whether, in a given in
stance, such an excess or usurpation
has occurred.
Q. What is the historical basis of
“interposition”?
A. As intimated in the answer to
Question 2, “interposition” is histor
ically nothing more than a political
method of achieving nullification.
The word “interpose” is found, for
example, in the Virginia Resolution
of 1798, which was generally consid
ered to be at least a proposed nulli
fication of Congress’ Alien and Sedi
tion Acts. “Interposition” took the
form of political action coupled with
force in 1809 when the governor of
Pennsylvania ordered the state miltia
to resist execution of a federal
court’s decree. Numerous other in
stances of nullification, usually in
stigated by legislative “ordinance”
or resolution, occurred all over the
country, South and North, up to the
time of the Civil War. Many of these
were aimed at decisions of the Su
preme Court that had the effect of
invalidating state laws. The court
in fact was attacked so vigorously by
States Righters, including some dis
tinguished lawyers and jurists, dur
ing Chief Justice Marshall’s tenure
(1801-1835) that in one of his letters
Marshall himself gloomily predicted
collapse of the Union.
Q. (a) What is the legal basis?
(b) Is there a higher authority than
the Supreme Court?
A. (a) In this writer’s candid
opinion there is no legal basis what
ever for “interposition” as a nullify
ing or voiding device. As anything
more than a formal and official pro
test against federal action, the doc
trine is a legal absurdity. Of course
it was never recognized by the fed
eral courts in any case with respect
to rights or immunities created or
protected by the U. S. Constitution,
treaties, or valid federal statutes.
And as a reputable political theory,
“interposition” in the nullification
sense was dealt a grievous blow by
the Henry Clay-engineered Tariff
Compromise of 1833. After that even
most of the Southern leaders who
championed the right of secession
did not contend that a state could
both nullify and remain in the Union.
Certainly the outcome of the Civil
War did not enhance the legal and
political luster of “interposition.”
(b) In our federalism there is no
higher judicial authority than the
Supreme Court with respect to the
validity or invalidity of any govern
mental (and sometimes individual)
action, state or federal, under the
U. S. Constitution. The court’s su
preme authority includes its power
to interpret the Constitution in a
specific case, as well as to apply the
Constitution. Supremacy in this field
results from the “supreme law of
the land” clause of Article VI and
the court’s assumption of the power
of judicial review in Marbury v.
Madison (1803). As a general propo
sition, the latter power has not been
seriously questioned since the Civil
War, even in cases “arising under”
the U. S. Constitution but originating
in the state courts. Congress, how
ever, has the power under Article III
to regulate and thereby to curtail the
Supreme Court’s appellate jurisdic
tion. And of course the court can
overrule its own decisions. Other
wise, the only legal method of “re
versing” the court on a question of
constitutional interpretation is
amendment of the constitution. The
oretically, three-fourths of the states
could repeal or modify the Four
teenth Amendment.
Q. Has the doctrine of “interposi
tion” ever been tested in court?
A. The doctrine has not been test
ed in a direct way, i.e., by a court’s
appraisal of it as a specific defense
or justification of what would other
wise be unconstitutional state action.
But fundamentally the states’ right
to ignore or disobey the Supreme
Court’s mandates in constiutional
cases was thoroughly tested (and re
jected) as early as 1816 in the land
mark case of Martin v. Hunter’s
Lessee. The Sunreme Court there
held that the highest court of Vir
ginia had no legal power to treat as
a nullity a prior decision by the
Table Gives Enrollment, Negro Percentages
1955 Enrollment
1952 Enrollment**
Negro
%of
Total
State
Number of
Districts
White
Negro
Negro
% of
Total
Mixed
Districts
Negroes in
Integrated
Situations
White
Negro
Alabama
in
*485,000
*225,000
34.4
0
0
440,000
239,000
35.2
Arkansas
228
*315,000
*100,000
24.0
3
47
316,000
100,000
24.0
Delaware
104
49,989
10,479
17.3
21
1,230
43,552
9,172
17.3
District of
169
38,768
68,877
63.9
147
68,877
46,084
54,716
54.3
Columbia
Florida
schools
67
589,157
164,291
21.8
schools
0
0
408,000
127,000
23.7
Georgia
202
*630,000
*294,000
31.8
0
0
490,000
254,000
34.1
Kentucky
224
565,061
38,760
6.4
40
313
526,000
35,000
6.2
Louisiana
64
*350,000
*215,000
38.0
0
0
312,000
197,000
38.7
Maryland
24
378,530
102,908
21.4
9
81,975
305,650
81,074
20.9
Mississippi
971
273,722
268,216
49.5
0
0
268,000
268,000
50.0
Missouri
.224 having *630,000
*67,000
9.6
114
57,000
621,000
63,000
9.2
North Carolina .
Negroes
172
708,294
294,283
29.3
0
0
637,000
273,000
30.0
Oklahoma
.. 1,746
456,690
38,131
7.7
88
20,000
464,000
36,000
7.2
South Carolina .
108
*360,871
*276,019
43.3
0
0
285,000
228,000
44.5
Tennessee
152
605,140
122,488
16.8
1
85
566,000
111,000
16.6
Texas
. 1,802
1,448,707
224,894
13.4
65
10,503
1,249,000
207,000
14.2
Virginia
114
544,902
180,062
24.8
0
0
473,000
160,000
25.2
West Virginia .
55
*433,296
*24,452
5.2
49
16,000
420,577
26,133
5.85
Totals
.. 4,791
8,863,127
2,744,860
23.6
537
256,020
7,870,863
2,469,725
23.8
*1955 estimates based on 1954 figures. . „ .. .
*‘Figures for 13 traditionally southern states given to nearest 1,000 pupils, taken from Public Education in the South Today ana
..Tomorrow, Ernst W. Swanson and John A. Griffin (1955); figures for four border states and Distnct of Columbia reported in
Southern School News, September 1954.
Supreme Court in favor of a land
claimant invoking a treaty and
against another litigant claiming un
der Virginia law. A direct test of
“interposition,” urged in the defense
of a school desegregation lawsuit for
example, would undoubtedly proceed
to a quick and foregone conclusion
in the federal courts. It is almost in
conceivable that the Supreme Court
would accord to an “interposition,”
even if it were embodied in a state’s
constitution, any greater legal stature
than has already been accorded state
constitutional provisions requiring
segregation.
Q. What is the best example of suc
cessful “interposition”?
A. The only example, successful or
otherwise, of “interposition” put into
practice under the classical Calhoun
formula was South Carolina’s Nulli
fication Ordinance of 1832. The fed
eral protective tariff of that year,
which clearly had a discriminatory
economic impact upon the South, was
declared null by a South Carolina
convention. Submission of the issue
for decision by the other states as
sovereign units and in effect insist
ing on either unanimous acceptance
of the tariff by the minority units
or, at their option, secession (Cal
houn’s “concurrent majority” thesis)
was itself effectively nullified, how
ever, by President Jackson’s and
Congress’ aggressive acceptance of
the challenge. The following year
Congress and the President mollified
Calhoun’s group by reducing tariffs,
and the South Carolina ordinance
was formally repealed. But this was
something of a Pyrrhic victory for
the South in that nullification with
out secession was demonstrated to be
unworkable.
Q. “Interposition” aside, are there
instances in which the Supreme
Court’s authority has been defied to
the extent that the purpose of de
fiance was accomplished?
A. Yes. In 1793 the Court held in
Chisholm v. Georgia that citizens of
another state (who were executors
of an English creditor of Georgia)
could bring an original action in the
Supreme Court against the State of
Georgia as a sovereign defendant.
Georgia’s official reaction to this de
cision was passage of a bill in its
House of Representatives providing
that anyone attempting to enforce
the court’s decree should “suffer
death without the benefit of clergy,
by being hanged.”
Other states in the same debtors’
boat also protested, Congress got
busy within two days, and five years
later the Eleventh Amendment was
ratified, thereby “reversing” Chis
holm v. Georgia. In the Cherokee Na
tion cases Georgia successfully defied
the Court without constitutional
amendment. In one of these, Tassel v.
Georgia (1830), the Georgia courts
sentenced a Cherokee Indian to be
hanged for murder under Georgia
law. The defendant applied to the
U. S. Supreme Court for a writ of
error on the ground that the law
under which he was convicted vio
lated a treaty. The court issued the
writ and the governor of Georgia
was served with a subpoena. These
processes were openly disregarded
and Tassel was executed two days
later. How successful can you get?
Essentially the same thing hap
pened in Worcester v. Georgia and
Butler v. Georgia (1832), except that
the defendants (Worcester was a
missionary from Vermont) simply
remained in durance vile at hard la
bor. In Ableman v. Booth (1859)
Wisconsin defied a lower federal
court in which an abolitionist had
been convicted under the federal
Fugitive Slave Act of 1850 for aiding
an escaped slave. The state supreme
court immediately released the con
vict on habeas corpus. The U. S.
Supreme Court after considerable
delay reversed the state court, hold
ing that it had no jurisdiction to
release a person held under order
of a federal court.
It is questionable whether any of
these instances of state defiance are
pertinent to the present imbroglio
over racial desegregation. Attempts
to amend the Fourteenth Amend
ment would of course be perfectly
legitimate, with or without “inter
position” resolutions. But they are
likely to bear no fruit except more
of the bitter variety.
Q. What other forms of protest
could be made by states objecting
to the Supreme Court decisions?
A. Aside from “interposition” and
vocal movements to amend the Con
stitution, “protests” are obviously
available in the form of litigious re
sistance in the courts, school district
by school district; formal and infor
mal pressures—legal, economic and
physical — upon Negro individuals
and groups; and demands for im
peachment of the Supreme Court
justices (perhaps also for a court
“packing” bill in Congress). Other
wise, there seems to be little left
for the objecting states except to
abandon public education and rec
reation altogether or to embark upon
various (and legally dubious)
schemes of evasion.
Q. Are other factors and interests
—aside from segregation—involved
in the current movement for “inter
position?”
A. Yes. In Texas, for instance,
partly as a result of the President’s
recent veto of the Harris-Fulbright
bill, there are official plans on foot
for “interposition” against both de
segregation and federal intrusion
into the domain of natural gas prices
at the wellhead.
Q. What power does the national
government have to meet the test
of “interposition”?
A. Existing federal statutes assess
both money damages and criminal
penalties, enforceable in the lower
federal courts, for violations of con
stitutional civil rights. Congression
al withholding of funds for school
construction, lunches and the like,
from “interposing” or otherwise non
complying states is also available.
This power of course can be serious
ly handicapped by the Senate’s fili
buster privilege and committee de
laying tactics in both houses. And to
meet a test of really tragic propor
tions the Presidents’ command of the
U. S. military is a theoretically avail
able weapon in support of the federal
courts. For the immediate future,
however, those courts’ power to pun
ish for contempt of their orders and
decrees is probably the most prac
tical national sanction.
Colleges
(Continued from Page 1)
Delaware—The University of Del
aware at Newark has admitted Negro
students for several years. The only
other state-supported college in the
state is Delaware State, predomi
nantly for Negroes.
District of Columbia — Students
are accepted without regard to race
at both Minor Teachers Colleges and
Wilson Teachers College, now con
solidated, which are integral parts of
the district school system. Minor
formerly was for Negroes.
Kentucky—Of the eight publicly-
supported institutions formerly for
whites, all will now admit qualified
Negroes though none have applied at
three of the schools. The University
of Louisville, first southern school to
admit Negro undergraduates, now
has about 300 in graduate and under
graduate courses. Murray State Col
lege has seven; Ashland Junior Col
lege, six; University of Kentucky, 83.
Paducah Junior College also has a
few Negroes enrolled. Kentucky State
College, formerly for Negroes only,
now has several white students. In
all at least 531 Negroes are in once
all-white colleges in Kentucky.
Louisiana—Starting with admis
sion of Negro graduate students at
Louisiana State University in 1951,
four of Louisiana’s seven all-white
public colleges now have Negroes
enrolled. On the undergraduate level,
McNeese College at Lake Charles has
109 Negroes in its student body,
Southeastern Louisiana College at
Hammond has 33 and Southwestern
Louisiana Institute at Lafayette has
an undetermined number. Among
the eight private schools primarily
for whites, Sacred Heart for Women
at Grand Coteau and Loyola Univer
sity in New Orleans, both Catholic
institutions, admit Negroes. The state
maintains two Negro colleges.
Maryland—Under a state policy of
desegregation, presumably all public
colleges are desegregated, though no
students of the opposite race have yet
applied at Maryland State Teachers
Colleges at Bowie or at Coppin, both
formerly for Negroes; at Hagerstown
Junior College, Maryland State Col
lege (Negro branch of the University
of Maryland), or at St. Mary’s Junior
College. Nor have Negroes applied at
three of the seven private schools
receiving state financial support
through scholarship grants.
Missouri—Ten of the state’s 15
formerly all-white public institutions
now have Negro students on campus,
though the exact number is not
known. Central Missouri State Col
lege at Warrenburg has “a few” Ne-_
groes. Harris Teachers College at St.
Louis has a student body about one-
third Negro. Junior College of Kan
sas City accepts Negroes. Northeast
Missouri State Teachers College at
Kirksville has four Negroes and 1,577
white students. St. Joseph Junior
College has a few Negroes enrolled.
Southeast Missouri State College at
Cape Girardeau has about 10 Negro
students. Southwest Missouri State
College at Springfield has 10 or 12.
Both the University of Missouri at
Columbia and its Rolla branch of
mines and engineering accept Negro
students. Lincoln University for Ne
groes at Jefferson city has 10 to 20
white students enrolled.
North Carolina—Of the 10 public
institutions for whites in the state,
only the University of North Caro
lina accepts Negroes. Seven graduate
students and three undergraduates
are now enrolled. The state also has
six public and seven private institu
tions for Negroes.
Oklahoma—All 22 publicly-sup
ported colleges and universities in
Oklahoma operate under policies of
non-segregation. The number which
actually has Negroes enrolled has not
been determined.
Tennessee—Three of six public
schools and four of 31 private schools
now admit Negroes in Tennessee.
Austin Peay College at Clarksville
has two Negro graduate students.
East Tennessee State at Johnson City
has one Negro student. The Univer
sity of Tennessee at Knoxville, which
has admitted Negroes to graduate
level courses since 1950, has 17 on the
Knoxville campus and 15 in the
school of social work at Nashville.
Texas—Seventeen of 45 public in
stitutions in Texas admit Negro stu
dents. They are Amarillo College,
Del Mar College at Corpus Christi,
Frank Phillips College at Borger,
Hardin Junior College (a branch of
Midwestern University at Wichita
Falls), North Texas State College at
Denton; Odessa College; Pan Ameri
can College at Edinburg; Paris Jun
ior College; San Angelo College; San
Antonio College, with two enrolled;
Texarkana College, where no Negroes
have yet applied under a recent court
order; Texas Southmost College at
Brownsville; the University of Texas
at Austin, opened to Negroes by court
order in 1948 now has about 65 in
graduate courses; Texas Western
College, El Paso branch of the uni
versity, has admitted 11 fulltime Ne
gro students and six parttime fol
lowing a court order; Victoria Col
lege; Wharton County Junior Col
lege, which has 11 Negroes last year;
and Howard County Junior College.
Virginia—Of nine public institu
tions formerly exclusively for whites,
four now have Negroes enrolled. The
University of Virginia has 20, in
cluding both graduates and under
graduates, in residence at the Char
lottesville campus plus 38 in exten
sion classes throughout the state.
Medical College of Virginia at Rich
mond has 12, including both grad
uates and undergraduates, and about
30 in the nursing school which it op
erates. College of William and Mary
at Williamsburg and its Norfolk di
vision have one graduate law student
and six undergraduates. Virginia
Polytechnic Institute at Blacksburg
has four Negro undergraduates.
West Virginia—Of the 10 public
institutions (two predominantly for
Negroes), all operate under non-seg
regation policies. Only Glenvilk
State College has no Negroes en
rolled.
Legislation
(Continued from Page 1)
gation program involving about 100
Negro scholastics. The NAACP a®'
nounced it would attack segregated
schooling all through Texas. In Hous
ton (nation’s largest segregated school
system) the school board held a six- i
hour desegregation hearing Feb. 21
but reached no conclusions.
Virginia
The legislature overwhelmingly aP'
proved an interposition resolution
The state’s attorney general held the |
resolution cannot be used as a <
defense in the Prince Edward Count) J
case (one of the original five case*
reaching the U. S. Supreme Court
and does not suspend enforcement 0 .
the court’s decision, though he praise 3 I
it as a protest. Arlington Count) 1
which had announced desegregat 10
plans, faced what was in effect P 1 ^ ,
hibitive legislation in the Genet®
Assembly.
West Virginia
An NAACP suit was filed in
Dowell County though the scho^
board apparently had decided on
program of desegregation. A Chari®*'
ton newspaper reported editorial;.
that with the opening of next
fall'*
term, pupils in “every one of oU r .
counties will be attending
classes.”