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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.”