Site Ed. Note: With regard to "The Amish", see the Supreme Court decision of Wisconsin v. Yoder, 406 US 205 (1972), which upheld the right of the Amish to avoid the Wisconsin law of compulsory education beyond the eighth grade, based on a showing that the history, traditions, and practices of the sect were sufficient to establish a genuine religious custom and one which did not impair the physical or mental health of the individual such that the state acquired a sufficient interest in compulsory education to outweigh the First Amendment Free Exercise clause regarding religious belief and practice. This balancing test is a traditional one when two rights under the Bill of Rights are in tension, usually arising where the interest and duty of the state to insure the protection of health, morals, safety and welfare of its citizens pursuant to the Ninth and Tenth Amendments compete with individual liberty interests recognized under the Constitution.

Within the context of free exercise of religion, a distinction is always made between belief and practice; while there may be no interference at all with religious belief, when, and only when, practices based on those beliefs actively interefere with some other constitutional or statutory right, either of others' individual liberties or of the state's interests, such as in the Pledge of Allegiance and flag salute cases, then this balancing test will be utilized to resolve that conflict of liberty interests, based on how compelling is the state interest on the instant facts before the court versus how fundamental is the liberty interest. The more fundamental the liberty interest, the more likely the individual liberty will be upheld; the more compelling the state interest in protecting health, morals, safety and welfare, when balanced against a less fundamental liberty interest, i.e., one not finding express sanctuary within the Constitution, the less likely the individual liberty interest will be upheld as against the state interest.

"This Doesn’t Help" reminds us of the vivid photograph of the Greyhound bus full of Freedom Riders set afire by the Klan outside Anniston, Alabama on May 15, 1961.

By analogy, one might suggest that the Klan’s image also, while not to equate the Klan with labor union activity, was not assisted by this incident, even within the South, even among those only with tepid animosity to the Klan. (We should stress that one outside the South in the 1950’s and 1960’s might have acquired through stereotype the notion of the average Southerner as a cracker or at best some lukewarm moderate who would abide the Klan when push came to shove to play it safe. Such could not be further from the truth. The most vehement Klan-haters outside the African-American community are and always have been Southerners, white Southerners. It is so for varying reasons—religious belief probably predominates as the impetus; then, perhaps, the desire to dissociate from any such violent and low-bred trashy element as is reputed at least to have generally comprised the Klan, of course a myth itself of high proportion, both within and without the South, especially in the Deep South; and finally, embarrassingly so, somewhere way down the line, would be simple adherence to constitutional rectitude and principles of fairness and human equality based on our system of government, apart from religious dogma and concerns. These latter notions, however, even among the educated, even among the religious, often became confused with notions of communism and atheism, perhaps funny to the outsider, not so to the insider who had to deal with it. But, regardless of its impetus, as long as the outcome was a Southerner dedicated to justice and fairness, and with a reasonably objective egalitarian sense in the manner administered, what matter whether it arose in the church or in the school or from the sum of both?)

The Freedom Rides were organized to protest segregated facilities existing in interstate commerce, growing out of the Greensboro lunch counter sit-in of fifteen months earlier, and the fact-specific Supreme Court decision of December, 1960, Boynton v. Virginia, 364 US 454, holding that the Interstate Commerce Act made it illegal to discriminate against anyone seeking access to public eating facilities operated in or by a bus terminal, or any other such public carrier, engaged in interstate commerce, such that the restaurant was an integral part of the facility, here involving a Richmond bus depot with an independently run restaurant. The 7 to 2 decision, as reported by Justice Black, expressly stopped short, undoubtedly to achieve a majority, of holding that the Interstate Commerce Act applied to all facilities engaged in interstate commerce or all facilities at which a bus traveling interstate happened to stop, not associated with a terminal operated by the carrier; it only applied on its facts to similar bus terminals at which were located integrally operating restaurants.

Interestingly, Justice Tom Clark, father of later Attorney General Ramsey Clark, joined Justice Whittaker in dissent. The argument in dissent was a technical legal argument, and expressly did not reach constitutional issues which the majority opinion did not reach, resting on statutory interpretation in opining that the Virginia conviction for trespass should not be disturbed in that the Interstate Commerce Act did not apply on the facts before the Court because the restaurant in question, though within the terminal, was not "operated or controlled by" the carrier, as required for the statute to operate to protect the passengers against discrimination. This dissent was certainly not the product of racism: Justice Clark later delivered the opinion in Heart of Atlanta v. U.S., 379 US 241 (1964), upholding the constitutionality of the 1964 Civil Rights Act as a valid exercise of Congressional authority under the Commerce Clause of the Constitution. It was simply the result of the majority not having reached the constitutional issues on which review was granted in the first instance, whether the passengers’ convictions for trespass violated Due Process and Equal Protection and also placed an undue burden on interstate commerce in violation of the Commerce Clause, side-stepping these more far-reaching issues in favor of the limited statutory approach. But this latter approach, too, is characteristic of the Supreme Court’s history, deciding cases as narrowly as possible when a Federal statute is involved, before reaching the grander constitutional questions.

The limits of the decision do point to the subsequent need, however, for a broader reaching Federal statute, such as the 1964 Civil Rights Act, an enactment, however, for which payment would be exacted in blood, both before and after its being signed into law.

Subsequent to the Boynton decision, Congress of Racial Equality members seeking to implement the decision ran into the same old headstrong reliance on tradition which had kept public facilities, restaurants, hotels, theaters, hospitals, etc., segregated since the Civil War. The Supreme Court could not enforce the decision itself; to federalize the National Guard presented a very thorny issue of potentially provoking violence among the half-wits to the extent that more harm than good might be the result, repressive measures brought to bear where peaceful cooperation might be otherwise first achieved.

But in the Deep South especially, there was an entrenched set-up, one entrenched since the end of slavery, an implied understanding between the understrappers who supplied the votes through all manner of means available, including the billyclub, both that one wielded by the police in their official capacity and that wielded by the Klan, sometimes comprised in part of moonlighting officers of the law themselves, and the elected officials, elected by a populace which was either too poor and ignorant to understand the system of which they themselves were equally the victims, regardless of the side of the racial divide on which they lived, or were comfortable enough to accept it as a thing necessary for their well-being, however moderate that well-being might be and however dependent it was on the Bosses, both local and those afar in the large industrial cities of the North, the enlightened cities which sponsored elementary school minstrel shows where all the white kids wore black face for their parents' pleasurable entertainment--just as the cotton plantation in the 1850's, as Frederick Law Olmsted found in his walk through the South, was most often managed by uneducated overseers who couldn't read or write their names, while the owners rarely visited the sultry land, resided in a mansion in more temperate Nashville, St. Louis maybe, or even Baltimore or Liberty's cradle, Philadelphia, elsewhere than the broiling sub-climes of Alabama and Mississippi where the slaves picked the cotton under the watchful eye and lash of the overseer to provide the owner the booty to live in high manner within the more comfortable regions of the still young country.

And, though impatience was growing within the civil rights movement with the newly elected administration in Washington, the Federal government, as many recognized, could only accomplish so much. The only Federal police force is and was the FBI, which only has limited resources with which to bring to bear on the issue of crime involving interstate commerce, theretofore usually revenue enforcement, gambling, Mann Act violations, liquor laws. And any administration must first cope, for a time, especially after a change of party entrenched in the executive branch for eight years, with a bureaucracy and a Federal judiciary in large part appointed by the opposing party. And, while it may be argued with a good deal of force that the Eisenhower Administration had not done at all a poor job in the area of civil rights, in the area especially of school desegregation, at least insofar as making a long overdue start in the right direction, an equally persuasive argument may be made that little enforcement had been offered, Little Rock being the prime exception only to prove the rule, and progress was inchingly and agonizingly slow after the great expectations aroused by Brown v. Board of Education--and sloth drawing its own ardor from that infamous phrase from the 1955 implementing decision, "with all deliberate speed".

But, now, a new day had dawned, the torch had been passed to a new generation, as the man had said from the Capitol steps, breath blowing in the wind to effect fiercely determined change, both in the substance and tenor of his speech, and in his mien, on that freezing, frosty day of January 20, 1961.

Time had come for action, action was expected, and plenty of it.

But the limits of Federal enforcement, a problem since the beginnings of the republic, remained. How to walk the line, to achieve the change, without open and violent conflict, the same conflict Cash had predicted would arise, in the closing paragraph of his book in 1940, should the brighter and better lights of the South not effect the change from within and voluntarily, by the very better aspects of their brighter lights, not enforced from without, leading on to the perception either of a choice of obedience and obeissance to the Yankee god of Mammon or the most familiar thing, the calculated intransigent resistance as of old, as seen in the Cyclorama in Atlanta, or somehow remembered from the fields of Gettysburg, where one close must have been felled by the bullets from the Yankee, must have been to feel it so intensely like that--fire the line, charge to face the cannon's mouth, violence from feeling, not quiet action from thought, that latter being a feminine, Yankee trait, one of the poets' conspiracy to thwart the Supremacy of the Almighty, that precept residing at will in the memory of its host, just as a coloring book page will tend, without its realization as such, in the adult mind of those who don't bother to go back and read the subtext comprising the entire history lessons imparted in simpler terms, mainly in pictures, as a child.

From the Freedom Riders’ point of view, the only way to gain enforcement was to insist on rights provided by the law, at the risk of having heads broken by the Klan and being arrested by the police, often Klan-infiltrated itself. The Freedom Rides through Virginia, North and South Carolina, Georgia, intending to proceed to Montgomery, Ala. and Jackson, Miss., were thus begun in the spring of 1961 to test these rights and bring further cases through the NAACP from the state courts into the Supreme Court, raising awareness through the media coverage all the while of the sorry state of freedom in the South, in the United States at large 100 years nearly after the Civil War and the ratification of the Fourteenth and Fifteenth Amendments.

Some of the Riders were arrested in Charlotte. There was violence encountered in Rock Hill, South Carolina. Otherwise, however, few incidents occurred until the Riders reached Alabama, encountering the Klan first at Anniston, resulting in the burning of one bus, and then beatings in Birmingham, administered by Klan billyclubs, with Police Chief Bull Connor's acquiescence.

On May 20, however, after the Justice Department under Robert Kennedy had interceded to convince Governor Patterson of Alabama to provide the Riders a police escort to Montgomery, the Ride continued. Just outside Montgomery, the police escort abruptly fled the scene and the Riders arrived at an unguarded bus station where again the Klan had its way, viciously wielding billyclubs and baseball bats. The resulting melee included violence to newsmen, especially photographers who were set upon fifteen at a time with billyclubs, as well as to a U.S. Assistant Attorney General, John Seigenthaler, who was beaten unconscious.

One white woman recounted the scene to a newsman: "I seen this one man hit this nigger up side the head and he looked like his whole face came off." A man at the scene said: "You let one of them niggers rape your wife and you’ll understand why they’re moving in on them." The Klanwomen even bravely employed their little children to fight the nigger soon-to-be-rapers, nigger rapers which included numerous white people—but all them was nigger-lovin’, anti-Christ, commie outside agitator rapers.

The Administration had seen enough of local enforcement and the crowd who watched too much Roller Derby, and moved in 600 Federal marshals to protect the buses.

Despite this violence, the Riders were determined to follow the road to justice toward Jackson. Now heavily and briskly escorted by state highway patrolmen, the buses entered the thick of the most violently oriented Klan territory in the South, the Ross Barnett Mississippi State Sovereignty Commission, no longer the State of Mississippi in any recognizable guise as a democratic form of government but possessed of all the attributes of a fascist Boss-controlled fiefdom of which Mussolini and his blood-thirsty sons would have been proud--and at the first attempt to gain service at public restroom facilities in Jackson, arrests of the Riders began in wholesale lots, albeit effected calmly.

By the next day, Ross Barnett was crowing to the world about how polite his state had responded to the Freedom Riders—no violence as in Alabama, just polite Southern hospitality in the jails under Mississippi’s "Supreme Law" of the land, as Ross called it—perverting every form of law and justice since the founding and turning it precisely backwards, Alice through the looking glass: State law trumping the Constitution, the Supremacy Clause of which had no effect within the Supreme Authority of the Mississippi State Sovereignty Commission and its White Citizens Council. Coo Co Coo.

Determined to draw continued attention to the matter, CORE, the Student Non-violent Coordinating Committee and the Southern Christian Leadership Conference recruited more volunteers to people the buses, including white college students from the North, and the Rides continued all summer, filling the Mississippi jails with more than 300 Riders.

We shall return to this topic again later.

For now, we shall return to this day’s editorial page of 1937…

Framed Edition

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