Rosa Parks in 1955, with Martin Luther King, Jr. in the background

I was talking about history as a concept yesterday with Acamus and many other friends.

Wiki is never a bad place to begin a working paper because it will give a perspective and often ring a little memory bell for me.  It will remind me of something I have not thought about for awhile. Sometimes the piece is straightforward and sometimes it is written by someone who WOULD LEAVE THE ISSUE TO THE READER.

This is an important date for America. Every year, despite the wishes of Congressman Richard Cheney and others, we celebrate Martin Luther King, Jr's birthday. Reverend King was a perfect person to celebrate as a symbol of the single biggest changes in our Nation, in our culture and in our national identity since the passage of the 13th, 14th and 15th Amendments to the United States Constitution.

Segregation based upon race was legal in so many parts of this country fifty years ago, one hundred years ago and even earlier. Except for certain important Executive Orders banning discrimination on the basis of race, only the Judicial Branch stepped up to the plate to actually do something about this injustice.

It is the case involving Rosa Parks, who decided one day that she had had enough. There are many books and articles written on the subject of Rosa Parks and why she refused to 'sit in the back of the bus' one day in late December, 1955. Wiki offers this nice, succinct description of riding the bus in the Southern United States during those days and the significance of a local bus line:

On December 1, 1955 in Montgomery, Alabama, Parks, age 42, refused to obey bus driver James Blake's order that she give up her seat to make room for a white passenger. Her action was not the first of its kind: Irene Morgan, in 1946, and Sarah Louise Keys, in 1955, had won rulings before the U.S. Supreme Court and the Interstate Commerce Commission respectively in the area of interstate bus travel. Nine months before Parks refused to give up her seat, 15-year-old Claudette Colvin refused to move from her seat on the same bus system. But unlike these previous individual actions of civil disobedience, Parks' action sparked the Montgomery Bus Boycott.

I have seen a few interviews with Ms. Parks. She is interesting.  There are articles and books promoting the idea that her actions on December 1, 1955 was all planned, choreographed by the NAACP and other organizations to foment unrest in Alabama. During one interview, this heroine maintained that she had gotten on the bus after a long hard day at work and took her seat. She was tired. The law had been that anyone, even Negroes could sit anywhere they wished on a bus. But if the driver directed an African American to move to the back of the bus, it was a misdemeanor to ignore that directive.

Think about that for a second. I mean it becomes a real social control mechanism. I am white and you are black. If I wish, at any time I can demand that you sit elsewhere; that despite the fact that you paid the same fare as I did upon entering the conveyance, I CAN DECIDE WHERE YOU SIT.

It must have been degrading. An inconvenience, but a degrading inconvenience to whom the law applied.

In one interview I witnessed, Rosa Parks said that she was tired at the time of the incident. She just wanted to make it home to her family. And something told her:

ENOUGH IS ENOUGH.

This was not an example of road rage.

It was more like a quiet act of desperation. You can imagine why this was a perfect act for the Reverend King to use in his fight against statutory injustice. Here was a meek, mild hardworking woman. There was no assault involved in the incident. Not obscenities were issued by the victim.

Anyway, back to Wiki.

We are reminded that Ms. Parks' case was not the first 'bus' case to find its way to the Supreme Court.

Irene Morgan (April 9, 1917 - August 10, 2007), later known as Irene Morgan Kirkaldy, was an important predecessor to Rosa Parks in the successful fight to overturn segregation laws in the United States. Like the more famous Parks, but eleven years earlier, in 1944, the 27-year-old Baltimore-born African-American was arrested and jailed in Virginia for refusing to give up her seat on an interstate Greyhound bus to a white person. In a 1946 landmark decision, the U.S. Supreme Court ruled 7-1 that Virginia's state law enforcing segregation on interstate buses was illegal.

 

I looked up this earlier case, and 'history' hit me right between the eyes.

The Missouri Compromise was a mealy mouthed attempt by Senator Clay and others to further postpone the inevitability of a civil war. In the Ante Bellum South, the fear was that as new states were admitted to the union, the less political clout the South would have in the Senate as well as the House; unless half of the new states were admitted to the union as slave states. We all learn this fifth grade.

I mean if all the new states were admitted to the Union as free states, there would be more and more senators, more and more representatives who would declare themselves and being against slavery.

So the Compromise involved the admission of free states into the union in the same proportion as slave states. Well the Dredd Scott Decision really destroyed the Missouri Compromise and all efforts to effect some sort of accommodation between the existing free staters and slave staters.

The reason for all this had to do with Interstate Commerce and the Commerce Clause of the United States Constitution. There is a lot of irony in this.

I grew up in the fifties and the Commerce Clause was the real humbug of the Southern States as well as the political conservatives throughout the country. If a Federal Law was enacted, it had to have as its authority some Constitutional Provision. Otherwise it was unconstitutional.

Article I, Section 8, Clause 3:The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Since the Supremacy Clause of the Constitution provides that if there is some conflict between a Federal Law and a State Law, the Federal Law rules; state righters were less and less prone to support any federal legislation.

The clause in United States Constitution's Article VI, stating that all laws made furthering the Constitution and all treaties made under the authority of the United States are the "supreme law of the land." Chief Justice John Marshall interpreted the clause to mean that the states may not interfere with the functioning of the federal government and that federal law prevails over an inconsistent state law. http://www.yourdictionary.com/law/supremacy-clause

 

Just as an aside, many pols and many legislators are against any health care reform for this reason. Did you know for instance that millions of people have health insurance policies that are only in force while they are in their state of residence? The policy will provide that there is no health coverage for medical procedures performed in other states.  If any Federal Law is passed concerning health insurance--assuming it is not declared unconstitutional by the Federal Judiciary--it will void any conflicting health insurance provisions contained in any state statutes; unless of course the Federal Law says otherwise.

Well, it seems that Dred Scott's owner had decided to move with his properties outside of his own state and set up residence elsewhere within the nation.
 

As Justice Taney put it during his procedural discussion of the case:

 

Plaintiff ...states that he is of African descent, was born a slave, and claims that he and his family became entitled to freedom by being taken, by their owner, to reside in a Territory where slavery is prohibited by act of Congress and that, in addition to this claim, he himself became entitled to freedom by being taken to Rock Island, in the State of Illinois and being free when he was brought back to Missouri, he was by the laws of that State a citizen.  http://www.tourolaw.edu/patch/scott/

 

In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.

Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

http://www.tourolaw.edu/patch/scott/

Now bear with me here. The history is soooooo interesting to me. Ft. Snelling is next to what is now St. Paul, Minnesota. We of course were not admitted into the Union until 1858.

So regardless of a plethora of other legal issues, the  racist Taney was faced with a unique case involving the Supremacy Clause and the Commerce Clause.

I mean think about it. This case had everything to do with transportation. I mean Dr. Emerson is a United States Citizen.  Now you wish to take your horses and your wagon and your stuff, including your slaves from a state allowing slavery to a territory of the United States subject to Federal Law.

I am so surprised that no one has done a comedy about this judicial farce. 

When you think about it, it is something like the story of the Prince and the Frog. The prince morphs into a frog. Magically he is kissed by some princess with loose morals and becomes a prince again.

Dred Scott is born a slave and resides in a slave state. The owner moves Mr. Scott to a territory which outlaws slavery. All of a sudden, Mr. Scott is thinking:

YOU CAN CALL ME MR. SCOTT.

Knowing that he has gotten himself into a real conundrum, Dr. Emerson quickly sells him to somebody else.

Now, if I take my horse from Alabama and ride to Illinois, I have to be protected from people who claim that this is no longer my horse because Illinois does not recognize my ownership rights.

This is exactly the type of issue that the Commerce Clause should resolve. There are individual states, but there certainly is commerce between the states.

Now Taney has to take care of many issues. So he has to start with a finding of law that individuals of African descent CANNOT EVER BE CITIZENS OF THE UNITED STATES.

In other words, black people are the same as horses. Always have been and always will be property just like horses. And other states or territories cannot deny your ownership rights in your horses or slaves or wagons.

There is so much irony here. Taney is saying that the Judiciary decides what is constitutional and what is not constitutional. And he is saying that it is unconstitutional for the Federal Government to take away a property owner's rights.

Do not attempt to get into the many other issues involved in this mess of a case.  Just understand that the case--which you can read for yourself in toto at the link--goes on and on about how people of the Negroid Race are animals. Taney did not have to offer this garbage in support of his opinion. It was obiter dicta, as they say. But he offered his opinions concerning biology out of shear spite.

At any rate, let us get back to buses.

MORGAN V. VIRGINIA

 

March 27, 1946, Argued
June 3, 1946, Decided


MR. JUSTICE REED delivered the opinion of the Court.

This appeal brings to this Court the question of the constitutionality of an act of Virginia, which requires all passenger motor vehicle carriers, both interstate and intrastate, to separate without discrimination the white and colored passengers in their motor buses so that contiguous seats will not be occupied by persons of different races at the same time. A violation of the requirement of separation by the carrier is a misdemeanor. The driver or other person in charge is directed and required to increase or decrease the space allotted to the respective races as may be necessary or proper and may require passengers to change their seats to comply with the allocation. The operator's failure to enforce the provisions is made a misdemeanor.

You see how the commerce clause and the Supremacy Clause of the Constitution come to the fore here?

I am Dred Scott IV and reside in Boston. I pay money to the Greyhound Bus Company for a seat on their bus in order to travel to Virginia to see my cousins for Thanksgiving. Now it is 1944, but Boston recognizes me to be a citizen of the great State of Massachusetts; a full citizen with all the rights of a citizen. At least I am a full citizen by law even if that was not the case in fact.

 

But as soon as I reach the border of the great State of Virginia, I become a frog. I become a lesser citizen. I can no longer sit in my seat labeled as 3A, because now I am magically subject to laws of a State that will not even pretend to see me as a member of the human race.

 

According to the statement of fact by the Supreme Court of Appeals of Virginia, appellant, who is a Negro, was traveling on a motor common carrier, operating under the above-mentioned statute, from Gloucester County, Virginia, through the District of Columbia, to Baltimore, Maryland, the destination of the bus. There were other passengers, both white and colored. On her refusal to accede to a request of the driver to move to a back seat, which was partly occupied by other colored passengers, so as to permit the seat that she vacated to be used by white passengers, a warrant was obtained and appellant was arrested, tried and convicted of a violation of § 4097dd of the Virginia Code. On a writ of error the conviction was affirmed by the Supreme Court of Appeals of Virginia. 184 Va. 24...

 

Actually, the first question alone needs consideration for, if the statute unlawfully burdens interstate commerce, the reserved powers of the state will not validate it...

[2]
We think, as the Court of Appeals apparently did, that the appellant is a proper person to challenge the validity of this statute as a burden on commerce. If it is an invalid burden, the conviction under it would fail. The statute affects appellant as well as the transportation company. Constitutional protection against burdens on commerce is for her benefit on a criminal trial for violation of the challenged statute. Hatch v. Reardon, 204 U.S. 152, 160; Federation of Labor v. McAdory, 325 U.S. 450, 463.

This Court frequently must determine the validity of state statutes that are attacked as unconstitutional interferences with the national power over interstate commerce. This appeal presents that question as to a statute that compels racial segregation of interstate passengers in vehicles moving interstate...

 Because the Constitution puts the ultimate power to regulate commerce in Congress, rather than the states, the degree of state legislation's interference with that commerce may be weighed by federal courts to determine whether the burden makes the statute unconstitutional. The courts could not invalidate federal legislation for the same reason because Congress, within the limits of the Fifth Amendment, has authority to burden commerce if that seems to it a desirable means of accomplishing a permitted end.

This statute is attacked on the ground that it imposes undue burdens on interstate commerce.  http://www.blackpast.org/?q=primary/morgan-v-virginia-1946

 

Now it has been said that the American Civil War overruled the Dred Scott Decision.

What I am attempting to demonstrate here is that way back in 1944; the Commerce Clause of the U.S. Constitution was used to overrule a state statute imposing segregation.

The same clause used by Taney to uphold the right to own slaves throughout the country; that is to uphold the property rights of a citizen of the United States of America as he travels from state to state or from state to territory.

We needed one more little push in order to attack the laws governing segregation in intrastate commerce.

Just think about it. If I am traveling on Interstate 90, am I not on a Federal Highway?  Then we get into funding of state highways and blah, blah blah...

Now we get back to my hero Martin Luther King, Jr. along with his staff and his allies in the fight against segregation.

 

MLK knew all about Morgan v. Virginia. MLK knew all about the 13th, 14th and 15th Amendments to the U. S. Constitution.

 

He knew all about the Commerce Clause and the Supremacy Clause of the United States Constitution.

 

MLK also knew about Plessy v. Ferguson, a case that voided many of the rights contained in the legislation of the Radical Republicans following the Civil War. A case that established the principal of 'separate but equal'; thereby condoning segregation de jure. http://www.bgsu.edu/departments/acs/1890s/plessy/plessy.html

 

And he also was well aware of new inroads like the cases involving Brown v. Board of Education. A case that was overruling the tenets of  Plessy v. Ferguson.

 

And per the Reverend King's policy of nonviolence, he hit upon his plan for the boycott of buses in Montgomery, Alabama.

 

He was on solid legal ground.

 

He had found the PERFECT VICTIM of outdated statutes.

 

He could use the same Bible the racist Bible thumpers used to support his cause.

 

He knew he could organize the people of Montgomery to carry through on the boycott.

 

He knew the boycott would financially strap the bus company.

 

He knew he could get goooooooood solid press from northern papers.

 

Oh he knew that he and his followers would be prosecuted for a number of infractions. It was not going to be easy. But he knew how to use the law, religion, peaceful assembly and the media to further his cause.

 

But it took one lady, who had had a difficult day at work to say out loud:

 

ENOUGH IS ENOUGH.