or agency of the federal government, based on the supposed authority of said Integration Decisions, to cause a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state.

Section 2. The prohibitions and mandates of this act are directed to the aforesaid executive branch of the government of the State of Mississippi, all aforesaid subdivisions, boards, and all individuals thereof in their official capacity only. Compliance with said prohibitions and mandates of this act by all of aforesaid executive officials shall be and is a full and complete defense to any suit whatsoever in law or equity, or of a civil or criminal nature which may hereafter be brought against the aforesaid executive officers, officials, agents or employees of the executive branch of State Government of Mississippi by any person, real or corporate, the State of Mississippi or any other state or by the federal government of the United States, any commission, agency, subdivision or employee thereof. Section 3. This act shall take effect and be in force from and after its passage. Approved April 5, 1956.

Senator ERVIN. That was restricted to the laws of lawful, peaceful, and constitutional means, was it not?

Mr. LUSKY. It was, Senator.

Senator ERVIN. That is all.

Mr. LUSKY. I have a comment on that that I would like to make in just a moment.

Senator ERVIN. Excuse me. I won't interrupt you.

Mr. LUSKY. This interposition program was intended to mobilize the entire establishment of State and local government to prevent enforcement of the equal protection clause in Mississippi. It had the desired effect. For nearly 10 years officials have arrested, prosecuted, and otherwise harassed those who claimed their Federal rights in Mississippi. They are still doing it. The gap between the possession of Federal rights and the enjoyment of those rights in Mississippi is measured by the cost and suffering involved in arrest, imprisonment, and years of wearisome litigation.

A word should be said about the terms "lawful" and "peaceful" as used in the interposition legislation. It has been quite clear for at least the last 100 years that there is no lawful way in which interposition can be implemented. As used in this context, "lawful" can only mean "not violative of the criminal law," and "peaceful" must mean "not involving armed insurrection." The actual practice of the Mississippi government over the past decade shows that the terms "lawful" and "peaceful" were understood to be used in this particular limited sense. But there are many effective noncriminal ways of defying the Supreme Court. One of the most effective is for a Federal judge to abuse his vast discretionary authority to that end. The Yale Law Journal comment which I have already mentioned, shows concretely how this can be and, to some extent, has been accomplished in the fifth circuit.

To nobody's surprise, the Federal courts have flatly branded interposition as unconstitutional. Submitted herewith are photocopies of the pertinent portions of the Supreme Court's opinion in Cooper v. Aaron, 358 U.S. 1 (1958) and the opinion in Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960). Despite these decisions, the nullification effort in Mississippi has been remarkably effective and still is.

On the basis of his participation in the interposition program, Mr. Coleman can rightly be asked these questions:

(1) Did he believe interposition was lawful when he proposed it? (2) If so, does he still believe it?

(3) If he does not still believe it, what new law has he learned since 1956 that enlightened him on this point?

(4) Does he believe that his sponsorship of interposition was consistent with his oath as Governor to support the Constitution of the United States?

(5) If so, would he place the same construction on his oath of office as a Federal judge? If he would consider such an oath to be more binding than his oath as Governor, why?

It is hard to see how Mr. Coleman can give satisfactory answers to all these questions. If he does not, his confirmation would be hard to justify. Enactment of the pending civil rights bill will mean little if the judges charged with its enforcement are in fact dedicated to its stultification. Wolves are poor guardians for sheep.

Senator ERVIN. Do you not agree with me at the final adoption of the 14th amendment, down to 12 o'clock noon on the 17th day of May 1954, it was uniformly held by all the courts in the United States, both Federal and State, that the 14th amendment did not prohibit the States from maintaining a school in which the children are segregated a school system in which children are segregated on the basis of race?

Mr. LUSKY. Senator Ervin, I have used a great many of your opinions as a judge in my classes in law school and I have come to have great respect for your opinion as to the law. I have not studied these cases, but if you tell me that's what they said, I believe you. Senator ÉRVIN. I appreciate your confidence in me. I will tell you that I think I could produce about 65 cases to that effect, Federal, State, and incidentally, two or three of them are from New York State itself. They were handed down by the New York Court of Appeals in the days of Judge Parker-the chief judge and you can understand that it was a very drastic impact upon many people in the country for the Supreme Court to decide that the uniform interpretation which had been placed upon the 14th amendment, not only by the courts, but by Presidents and Congress itself was rather a drastic thing, was it not?

Mr. LUSKY. Are you talking about lawyers now?

Senator ERVIN. Lawyers, judges.

Mr. LUSKY. I don't think the lawyers were very surprised. The Supreme Court had really given fairly clear indication that a very clear indication in Sweatt v. Painter that it was going to do this eventually. Actually, if I may go back just a moment to one of the cases referred with one of the other witnesses, the 1928-the 1927 decisionthat is a case I do know about. I would like to ask you that was the Taft decision for the unanimous Supreme Court-if that was not a case which did not really involve segregation. As I recall it, that involved a little Chinese girl who was affirming the legalities of segregation. Her position was that she was entitled to a separate school herself because she was the only Chiness in this little Mississippi town. If segregation is valid for other people it ought to be valid for her.

Senator ERVIN. If you will pardon me for disagreeing with you— I know that case so well I have almost memorized it and the only case Chief Justice Taft, who wrote the opinion stated twice that the only question in that case was whether or not the State of Mississippi could set up separate schools for children of different races and classify a

Chinese girl as a member of the colored race and assign her to a school attended by members of the colored race than one attended by the white races without violating the 14th amendment.

Mr. LUSKY. Again, Senator, I must defer to you. I did read the case just last Saturday and it seemed to me Lum was not opposing the segregation. But if you say otherwise, I will just accept your

statement.

Senator ERVIN. I cannot say otherwise because Chief Justice Taft said otherwise in the course of the opinion.

Mr. LUSKY. So we will just take it as common ground that down to 1954, at least, the Supreme Court had never ruled that racial segregation in and of itself was a violation of the equal protection clause.

Senator ERVIN. I believe the Sweatt case, Chief Justice Hughes wrote it, did he not? That is the Sweatt case-didn't Chief Justice Hughes write the Sweatt case?

Mr. LUSKY. I can't even now be sure. (Documents referred to follow :)

Cooper v. Aaron

OPINION OF THE COURT

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . Abelman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases Sterling v. Constantin, 287 U.S. 378, 397-398.

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other State activity, must be exercised consistently with Federal constitutional requirements as they apply to State action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive

that it is embracd in the concept of due process of law. Bolling v. Sharpe, 347 U.S. 497. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

CONCURRING OPINION OF MR. JUSTICE FRANKFURTER 1

While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake.

By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirments of this Court's decree in Brown v. Board of Education, 349 U.S. 294. The Little Rock School Board had embarked on an educational effort "to obtain public acceptance" of its plan. Thus the process of the community's accommodation to new demands of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted:

"14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attenance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guar d at Central High School." 156 F. Supp. 220, 225.

All this was disrupted by the introduction of the State militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or non-action the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty, The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain law but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board's and the State's constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court.

We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the con1 This opinion was filed October 6, 1958.

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sequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness, and lawlessness if not checked is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signalled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system but of the presuppositions of a democratic society. The State "must *** yield to an authority that is paramount to the State." This language of command to a State is Mr. Justice Holmes', speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler, and Mr. Justice Stone. Wisconsin v. Illinois, 281 U.S. 179, 197.

When defiance of law judicially pronounced was last sought to be justified before this Court, views were expressed which are now especially relevant:

"The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment. "But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they kney as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositiories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for." United States v. United Mine Workers, 330 U.S. 258, 307-309 (concurring opinion).

The duty to abstain from resistance to "the supreme Law of the Land," U.S. Const., Art. VI, ¶ 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is "the supreme Law of the Land." (See President Andrew Jackson's Message to Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 ed.), 610, 623.) Particularly is this so where the declaration of what "the supreme Law" commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the