Circa1865

What Congress Is Doing to Curb the Supreme Court

“Bills to counter recent Supreme Court rulings are starting to make their way through Congress. How much further will Congress go? Everything about the Court – how it operates, terms of judges, scope of rulings – is about to get a thorough review, the first in decades.

US News & World Report – July 12, 1957 – Congress is starting to strike back at the Supreme Court. A score of bills have been introduced to curb the Court’s power and to sidestep the effects of controversial decisions. It is clear that a growing number of Congressmen are convinced that new laws must be passed to overcome the effects of these decisions. Other Congressmen propose to go much further and trim the powers of the Court itself.

Senator Herman Talmadge (Dem.) of Georgia, for example, proposes to amend the code of laws to remove public schools from the jurisdiction of federal courts. Others have offered amendments to the Constitution giving States the exclusive power to regulate schools and all other matters relating to health and morals.

Limits on Tenure? Court decisions during the recent term have produced a rash of bills to make Supreme Court Justices less safe in their lifetime jobs. Senator Russell Long (Dem.) of Louisiana, offered a constitutional amendment to require reconfirmation of a justice by the Senate after 12 years on the bench.  Senators Olin D. Johnston (Dem.) of South Carolina, and James O. Eastland (Dem.) of Mississippi propose amendments to require reconfirmation every 4 years.

Behind all the proposals affecting the appointment of Justices is the objection in Congress that recent decisions have been more political than judicial in purpose and in effect.

To promote full debate, Senator Talmadge also is sponsoring a bill to require the Court to give a full hearing, with oral argument, on any case it decides. His contention is that the Court acted in at least ten cases during the recent term without hearing arguments.

All of these bills, in effect, are telling the Court that it is asserting too much power over Congress, the President and the States.”

Policemen in School Corridors?

The US News & World Report, December 6, 1957, pg. 94.

“Juvenile crime in New York public schools no becomes so serious that a grand jury wants to put police inside each school. “Blackboard jungles,” mostly in Negro and Puerto Rican areas, give most difficulty. Crime complaints exceed 2100 this year. Must schools be policed? A top official says, “We do not want Little Rock in New York City.” Yet trouble is mounting.”

NEW YORK CITY – Serious trouble in the public schools of the nation’s largest city broke into the open last week with a recommendation for drastic action.

Delinquency of all kinds had been growing with 1280 arrests made on New York City school grounds thus far this year. These had been for offenses ranging from petty thievery to rape and murder. A special grand jury investigating lawlessness in Brooklyn’s public schools came up on November 25 with this terse recommendation:

“This grand jury recommends that a uniformed New York City policeman be assigned to all schools throughout the city to patrol the corridors, the stairways and the recreation yards as a preventative measure.”

Reaction to the proposal was swift. New York City Superintendent of Schools William Jansen called it “unthinkable.”

Nevertheless, there was agreement that the situation was serious and close to being out of hand. The judge presiding over the grand jury, Samuel Leibowitz stated that “conditions were alarming and that school authorities have been utterly incapable of coping with the situation.”

Most of the “difficult” schools as listed by the city’s Board of Education are situated in predominantly Negro and Puerto Rican neighborhoods. Student achievement levels there are generally below the average for the city and discipline is a major problem. Teachers are reported to be frequently defied by pupils and, in some instances, to be threatened with physical harm by gang members who invade the classrooms.

The at-school crime that finally touched off the grand jury probe occurred in September at Thomas Jefferson High School in Brooklyn. There, a 17-year-old Negro boy hurled a bottle of lye into a classroom, partially blinding one boy and splattering 18 other pupils and the teacher.

Fear of being assigned to a difficult school has hurt teacher recruiting efforts although the extent of the damage cannot be measured. The facts now coming to light about New York’s school problem indicate that troubles here run deep, and serious school problems, it appears, are not confined to the American South.”

By the end of 1941 over 800 tanks and 873 combat aircraft had been delivered to Russia. In May 1942 Stalin’s Foreign Minister Molotov arrived in Washington to sign a mutual aid agreement with Roosevelt for $1 billion of war materiel.

When the Future of Mankind Was at Stake

“Entire factories have also been exported to the Soviet Union. Among them were a tire plant, an aluminum rolling mill, and two pipe-fabricating mills. Plants have also been built or were under construction for the manufacture of wall board, nitric acid and hydrogen gas. A block-signal system designed to increase the carrying capacity of existing facilities was installed on Soviet railways. Various projects for the provision of electric power were also approved by the US government.

Under Lend-Lease, General Electric and Westinghouse developed a “power-train” which proved to be extremely effective in putting idle Russian plants to work. As soon as local utilities are functioning again, the train moves on to “spark” another area. Some sixty-odd trains have been supplied and the Soviets have put them to good use.

Both factories and power trains fitted into the scheme of helping the Soviets to help themselves. It took ingenuity and imagination and guts to fulfill the needs of our Soviet ally during those grim days when the future of mankind was at stake.”

(Lend-Lease is a Two-Way Benefit, Francis Flood, National Geographic Magazine, June 1943, pp. 506)

No Equality Other Than Political

Mr. Justice [Henry] Brown, after stating the facts in the forgoing language, delivered the opinion of the court in Plessy v. Ferguson, 163 U.S. 537 (1896)

“This case turns upon the constitutionality of an act of the general assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. (Acts 1890, No. 111, p. 152).

The constitutionality of this act is attacked upon the ground that it conflicts with both the Thirteenth Amendment, which abolished slavery and involuntary servitude, except a punishment for crime, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of States.

One: That it conflicts with the Thirteenth Amendment abolishing slavery . . . is too clear for argument. In the Civil Rights cases, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot justly be regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, property cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears. ‘It would be running the slavery question into the ground,’ said Mr. Justice [Joseph P.] Bradley, “to make every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in matters of intercourse or business.”

A statute which implies merely a legal distinction between the white and colored races, and which must always exist so long as white men are distinguished form the other race by color, has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand [why] the Thirteenth Amendment is strenuously relied upon by the plaintiff in this connection.

Two: the object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, 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 comingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of one race to the other, and have been generally, if not universally, recognized as within the competency of the State legislatures in the exercise of their police power.

We consider the underlying fallacy of the plaintiff’s argument to consist of 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 the reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.  The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced comingling of the two races. We cannot accept this proposition.

If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

(www.statesrightsjournal.com, accessed April 24, 2004)

The Marquis of Wellesley is reported to have said that the victory over Napoleon at Waterloo was unfortunate for England; having put down a power she might have controlled, she raised up a power that she would be unable to control.

Unleashing Uncontrollable Power

 “I firmly believe that if the coming vote in Congress on the repeal of the Neutrality Act carries, it will be our last chance to vote on the question of keeping out of war and that our representative form of government will be doomed. It will probably require another revolution to reestablish it . . .

Now we are linked to the bear than walks like a man; a ruthless, murderous Stalin than can send his best friend before a firing squad with utter complacency. So that’s our ally.

Do you think you want to team up with that kind of monster? Do you want your country to spend its substance in a fight to make the world safe for communism? That’s what we would be doing by coming to the aid of Russia . . .”

Rep. Anton Johnson (R. Illinois). From radio address, inserted in Congressional Record, Oct. 15, 1941, p. a4937.

(The Illustrious Dunderheads, Rex Stout, editor, Alfred A. Knopf, 1942)

It is estimated that the Civil War cost $8 billion, which, including destruction of property, derangement of the power of labor, pension system and other economic losses, is increased to $30 billion. To this total is added the human cost of 620,000 battlefield deaths – the war killed one out of every four Southern white males between 20 and 40 — and at least 50,000 civilians dead from indiscriminate Northern bombardment of cities, and starvation.

In the immediate postwar and its two million men in blue mustered out, the Grand Army of the Republic (GAR) became a rich political endorsement as Northern politicians lined up to offer higher pensions in return for votes.  

The Most Costly Price of the Civil War

“War always intrenches privilege in the councils of the nation. The power of the financier is increased. He is called in to rule. Otherwise the state would not go on. Such was our own experience as a result of the Civil War.

Prior to 1861 a democratic spirit prevailed in the nation. Economy was the note in government expenditures. The Civil War ushered on a new era. The need for revenue brought about a merger of the protected interests of Pennsylvania and New England and the banking interests of Wall Street with the Treasury Department, a merger which has continued ever since.

Corruption born of army contracts and war profits penetrated into Congress and the various departments of the government. The public domain of the West was squandered in land grants to the Pacific Railroads with no concern for posterity. The richest resources of the nation were given away. For years after the war, privilege was ascendant and democracy reached to lowest ebb in our history.

Taxes were collected not for the needs of the government, but to maintain a protectionist policy. Revenues were squandered and pork-barrel methods prevailed. Pensions were recklessly granted to prevent a treasury surplus, while appropriations for rivers and harbors, for public buildings, and other purposed became the recognized practice of congressional procedure.

For fifty years the reactionary influences which gained a foothold during the Civil War maintained their control of the government. This was the most costly price of the Civil War, far more costly than the indebtedness incurred or the economic waste involved.”

(Why War? Frederic C. Howe, Charles Scribner’s Sons, 1918, excerpt pp. 313-314)

James William Fulbright, 1905-1995, was born in Missouri and reared in Arkansas, which he eventually represented both in the House and Senate. He signed the Southern Manifesto which declared the Supreme Court’s 1954 Brown v. Board of Education ruling as “a clear abuse of judicial power” as only Congress can legislate; in 1964 and 1965 he opposed both the Civil Rights Act and Voting Rights Acts as unconstitutional invasions of clear State authority.

Fulbright additionally questioned the reasons why the Army, Navy and Air Force each spent “millions of tax dollars annually on persuasion of the public that its particular brand of weaponry is the best.” At the conclusion of the 1861-1865 war, Lee wrote to Lord Acton that “The consolidation of the States into one vast empire, sure to be aggressive abroad and despotic at home, will be the certain precursor to ruin which has overwhelmed all that has preceded it.” 

A Militaristic and Aggressive Nation

“Violence is our most important product. We have been spending nearly $80 billion a year on the military, which is more than the profits of all American business, or, to make another comparison, is almost as much as the total spending of the federal, State, and local governments for health, education, old age and retirement benefits, housing, and agriculture. Until the past session of the Congress, these billions have been provided to the military with virtually no questions asked.

Many people looked on [the Sentinel ABM program] as they now look on Safeguard, not as a weapon but as a means of prosperity. For the industrialist it meant profits; for the worker new jobs and the prospect of higher wages; for the politician a new installation or defense order with which to ingratiate himself with his constituents.

Military expenditures today provide the livelihood of some ten percent of our work force. There are 22,000 major corporate defense contractors and another 100,000 subcontractors. Defense plants or installations are located in 363 of the country’s 435 congressional districts. Even before it turns its attention to the public at large, the military has a large and sympathetic audience for its message.

These millions of Americans who have a vested interest in the expensive weapons systems spawned by our global military involvements are as much a part of the military industrial complex as the generals and the corporation heads.  In turn they have become a powerful force for the perpetuation of these involvements, and have had an indirect influence on the weapons development policy that has driven the United States into a spiraling arms race with the Soviet Union and made us the world’s major salesman of armaments.

A Marine war hero and former Commandant of the Corps, General David M. Shoup, has said: “America has become a militaristic and aggressive nation.”

(The Pentagon Propaganda Machine, J.W. Fulbright, Liveright Publishing, 1970, excerpt pp. 12-13)

After his election in 1876, Gov. Wade Hampton of South Carolina promoted a hiring policy for State employees which “depended on a man’s competency and his conduct, if he was capable and did his duty faithfully to retain him, black or white.” The “Hampton party” was Democratic and included both races in its ranks. The Republican party continued its policy of racial discord in an effort to retain political power in the South.

Red Shirts, Black and White

“Negro Congressman Robert Smalls was hampered in his campaign by the interference of the Red Shirts.  At a meeting in Blackville there were only three hundred Negro supporters of Smalls and an approximate equal number of Red Shirts, some of who were Negroes.

In the new county of Hampton he attempted to make a speech at Gillisonville. When he arrived at ten in the morning he found about forty Negro men gathered at the meeting place and groups coming up the street to attend the meeting when suddenly a large group of Red Shirts rode into town, giving the “real rebel yell,” or as Smalls described it, “whopping like Indians.” They drew up on the outskirts of the crowd and remained still . . . Smalls with some difficulty restrained the Negro men from counterattacking.

Then the leader of the white group insisted that he be given halftime at the meeting. Smalls refused to speak at all on the grounds that it was a Democratic meeting, but the Democrats insisted that there should be a joint session and gave Smalls ten minutes in which to make up his mind to hold the meeting.

During this time he withdrew with some of his supporters into a nearby outbuilding, where they were surrounded by Red Shirts who fired several shots into the building and threatened to set it afire. However, as the alarm was spread in all directions, Negroes from the countryside, armed with guns, axes, and hoes, began to converge on the town and the Red Shirts galloped away. A major riot was narrowly averted.”

(South Carolina Negroes, 1877-1900, George Brown Tindall, University of South Carolina Press, 1952, excerpts pp. 34-35)

By capturing, confiscating and conscripting black men for his war effort, Lincoln greatly succeeded where earlier British emancipation efforts to thwart American independence failed.  Had Cornwallis won victory at Yorktown, would George III and Parliament have hung Jefferson, Franklin, Adams, Henry and the rest of American leadership, and rewarded black slaves with political rights and the land of rebels?

Lincoln was certainly appreciative of the black military labor gained from captured Southern territory, and depriving the South of agricultural workers which was the primary target of earlier British emancipation efforts in 1775 and 1814. At the same time Lincoln had to face political reality once the Southern armies and leadership were dispensed with, and the votes of his freedmen were required to insure permanent Republican party hegemony.

Lincoln’s Lights

“While there is endless speculation about how Lincoln felt in the recesses of his heart and about what he would have done had he lived, it is usually agreed that he never gave his support to full equality for Negroes. Nor is there one shred of credible evidence that he ever modified his fundamental racial attitudes, in spite of his gentle nature, his kind feelings for Negroes, and his appreciation for their military prowess.

Beyond signing the bills that came before him and aiding the struggle to equalize military pay rates, the President generally stood aloof from the campaign being waged in Congress for more rights and advancement for Negroes.

Moreover, he never so much as hinted that the ballot be given to Negroes living in the North, and he apparently assumed no leadership in the battle to eliminate the Black Laws in Illinois and elsewhere in the Middle West.

Although he assented to the repeal of his colonization program in 1864, it is likely he never gave up the idea completely. As prospects for deportation dimmed, he suggested at various times that an apprenticeship system ought to be established to prepare for racial coexistence.

But it was the need to found a loyal political organization in the South, rather than his compassion for the Negro, that absorbed most of his attention, and the party he envisaged was to have a white base.  At one time the President suggested that the Unionist government in Louisiana might consider enfranchising “some of the colored people . . .”; but he steadily turned down demands that equal suffrage be imposed on the South and used his influence in Congress to block such legislation.

According to his lights, the freedmen were to be entrusted to the care of those conservative white Southerners whom he hoped would control politics in the new South. As Kenneth M. Stammp has said, “The Negroes, if they remained, would be governed by the white men among whom they lived, subject only to certain minimum requirements of fair play.”

(Free But Not Equal: The Midwest and the Negro During the Civil War, V. Jacque Voegeli, University of Chicago Press, 1967, excerpts pp. 168-169)

Robert A. Taft, son of William Howard Taft, was the last prominent Republican who might be considered a classical liberal and conservative Republican. Another would not appear until Barry Goldwater in the mid-1960s, and no more to this day. For the 1952 presidential election, he was cast aside by the Republican Party to make way for Dwight Eisenhower, a career military man with no political ideals or experience.

Though a constant critic of Roosevelt’s assumption of powers not granted to the executive, it is difficult to understand how Taft could state that he was an admirer of Abraham Lincoln, who began in earnest the erosion of constitutional principles and whom FDR emulated.

America’s Slide Toward Totalism

“By the time Bob Taft was elected to Congress, the New Dealers’ admiration for the Soviet experiment had diminished markedly, yet there remained the possibility that the United States might slide, almost unwittingly, toward totalist politics.

The maintenance of ordered freedom being the root of Taft’s politics, he never ceased to warn the American public against the erosion of constitutional principles, and he never was deterred by ridicule.

“The trend of thought on forms of government throughout the entire world,” Taft insisted, “has been pushing all peoples consciously or unconsciously away from democracy to different forms of totalitarianism. In Europe, democratic ideals were crushed between the dynamic dogmas of Communism and Fascism.

In the United States, we often lose sight of the real nature of the principles on which freedom depends, in our desire to remake our world according to the popular method of the day – methods formulated for the most part by European socialists.”

The American people had perceived by 1938, he said, that this tendency was most perilous; but the coming of the war diverted public attention from such fundamental concerns. So in speech upon speech, during the Second World War, Taft prodded Americans into vigilance against the encroachment of collectivist ideas and measures at home. Some of the basic principles of American politics already had been damaged, he declared in 1941:

“We have seen during the past twelve years a steady increase in government regulation of business and of the individual, and we have seen, through courts which are hardly independent of the executive, a constant tendency to increase the powers of the federal government over the States, and the powers of the Executive over the individual.”

He saw his prediction[s] fulfilled:

“In our efforts to protect the freedom of this country against aggression from without, we are in a situation today where we must constantly be on guard against the suppression of freedom in the United States itself . . . Unfortunately the [Roosevelt] administration, more than any other in the history of the country, is utterly unscrupulous in its demand for more power . . .”

(The Political Principles of Robert Taft, Russell Kirk and James McClellan, Fleet Press Corporation, 1967, excerpts pp. 62-64)