“Sometimes,” Mooney wrote, “Lyndon Johnson could be downright surprising.”)
THE SENATORS’ APPROVAL, by a 47–45 vote, of the disability amendment to the Social Security Act showed Lyndon Johnson’s power at (in the case of Molly Malone) its most subtle, and at (in the case of Earle Clements) its most raw. And that approval showed also the extent of his power, documented again that the Senate, a body designed so that it would never have a master, had a master now.
But the Senate was not what Lyndon Johnson wanted. It was only a step on the ladder to the goal, the only goal, of which he dreamed. So he had at last to come to grips with his great dilemma—which was also America’s great dilemma: the plight of the sixteen million Americans whose skins were black.
*When, in 1955, Johnson, responding to Brown’s edict, had pushed through the Senate an amendment exempting the highway program from Davis-Bacon (allowing senators to vote aye in anonymity by blocking Paul Douglas’ attempt to get a roll-call vote), as telling to liberals as Johnson’s maneuver had been his rationale for it—what Evans and Novak called his “quite sincere apprehensions about organized labor.” In discussing the bill, they wrote, “He [Johnson] recalled his own experience” on the road gang. “Paradoxically, he remembered not his own low pay but the small profit margin of the contractor, his difficulty in financing new equipment and his trouble in meeting his tax liabilities”—and Johnson’s resultant “sympathy for the small county contractor…colored his attitude” toward Davis-Bacon.
Part V
THE GREAT
CAUSE
30
The Rising Tide
IF AN AMERICAN CITIZEN of African descent—a “Negro,” to use the term then in common usage—wanted to register to vote in Bullock County, Alabama, during the 1950s, he had to register under what the county’s Board of Registrars called the “voucher system.” He was required to bring with him a “supporting witness” (called by the Board a “voucher”) to attest to his character, morals, and general “fitness” to be a voter. But only Bullock County residents who were already registered voters were eligible to be supporting witnesses, and no witness could vouch for more than three persons during each four-year term of the Board. And since, by inviolate Bullock County custom, no white person would ever vouch for a Negro, eligible “vouchers” for Bullock Negroes were in rather short supply.
For out of the county’s eleven thousand Negro residents, exactly five were registered voters.
This meant, of course, that no more than fifteen Negroes could be registered during any four-year period, but even this number was apparently more than the Board was disposed to allow—as a small group of Negroes, perhaps a half dozen, learned when, on January 18, 1954, they showed up at the Board’s office in the Bullock County Courthouse in Union Springs with their supporting witnesses. “What’s your trouble?” Board Chairman S. B. Wilson asked them brusquely, and when one of them, Aaron Sellers, a forty-year-old farmer, replied that they were there to register, Wilson said, “Well, we’re busy today. You all come back tomorrow.”
They returned the next day. Wilson and his fellow Board members let them sit there for an hour, until finally another white man, Allen B. Tucker, “who,” as a federal judge was to note, “was not connected with the board in any official capacity,” came over to them, and asked the same question: “What’s your trouble?” Sellers, speaking for the group, said, “We were here yesterday, and the chairman told us to come back today.” Tucker asked them why they wanted to vote. Sellers said something to the effect that they wanted to vote because they were citizens, and Tucker said, “You all are citizens already—you pay taxes, don’t you? If I were you, I would go back home.” And when they didn’t take his advice, but remained sitting—the Board continuing to ignore them—for perhaps another half hour, the veneer of civility, thin though it was, disappeared entirely. Returning to the room, Tucker stood over the Negroes and said in a low, threatening voice, “I thought I told you to get the hell out of here.”
The Negroes were all aware not only of incidents of violence against members of their race who had defied white wishes, but of other forms of intimidation as well. “The white people in the town kept a list of the names of who was trying to vote, and they kept the list in their pockets for ready reference,” Sellers would recall. There were many ways in which that list could be used. Word had been passed that “the banks were organizing” and might “stop lending colored people money,” he says. The county’s impoverished Negro farmers would shortly—in March or April—need “crop loans,” money to buy seed and fertilizer to plant their cotton and peanut crops. And, as Sellers says, “you had to have a little to live on, too, you know,” until the crops were harvested in October. Tucker’s threat was effective. “We were all somewhat afraid,” Sellers says. “We got up and left.” When he decided to make another attempt—on February i—he was able to persuade only three men to come with him, not that it made much difference. Their approach to the courthouse had been noted, and this time when they walked up the stairs and knocked on the door to the Board of Registrars office, there was no reply, and when Sellers finally worked up the nerve to open the door, the room was empty.
Encountering a white courthouse clerk in a corridor, the four Negroes asked where the Board was meeting, and the clerk, a smirk on his face, said he didn’t know. Afraid to go looking in every office, the Negroes finally left the courthouse and stood outside, waiting for the registrars to come out and go to lunch; when they returned, they followed them to the unmarked office in the basement in which they had been meeting. But although all three members of the Board went into the room, when Sellers knocked on the door, only Wilson appeared, stepping through the door and closing it quickly behind him. And when Sellers told him that he and his friends wanted to register, Wilson, as Sellers was to recall, “told us he couldn’t register us because he was alone and the law required two at least to be present.”
They knew now that the Board was not going to allow them to register, Sellers was to say, so “we didn’t go back anymore.” Instead, they decided “to go to law,” to sue the Board of Registrars for denying them the chance to vote. “We were citizens. We knew the law said citizens could vote,” Sellers was to say. “We thought we would win.” They found an attorney—Arthur D. Sholes of Birmingham, one of the handful of black lawyers in Alabama—who was willing to represent them, and Sholes brought suit in Federal District Court in Montgomery, the state capital, asking for a declaratory judgment that the Board had discriminated against them, and for an injunction prohibiting the Board from such discrimination and ordering it to use the same criteria for registering Negroes as it did for whites. The Federal Bureau of Investigation had no difficulty in confirming their story—no sooner had an FBI agent, looking for witnesses, entered a pool hall in Union Springs and pulled out his badge than Tucker told him proudly, “I just run off a bunch a niggers who were tryin’ to vote.”
But then, having gone to the law, they found out there was no law that could help them.
The District Court judge, Charles Kennamer, ruled, in ringing words, that their cause was just. The Board’s actions “whenever the plaintiffs appeared before them…amounted to discrimination…solely because the plaintiffs were members of the Negro race,” he wrote. “The supreme law of this Republic” is that no voter can be discriminated against. “Therefore, let no Board of Registrars try to devise any scheme or artifice to do otherwise.” The words didn’t mean much, however—as even the judge had to admit. By the time he issued his ruling, it was irrelevant. While the trial was still going on, the three members of the Board simply resigned, and in his ruling Kennamer had to admit that “by virtue of their resignations, the defendants are now beyond the vale of an injunctive directive from this court.” There was no point in ordering them to register Negroes; they couldn’t register Negroes any longer. No one in Bullock County could register Negroes. In his ruling, the judge promised that “The court will grant injunctive reli
ef … in the event…these defendants again become members of the Board”; the defendants did not again become members of the Board: they stayed resigned until their terms expired, in 1956. During this time, their posts remained unfilled. Vacancies were supposed to be filled by a state agency, but the state agency didn’t fill the vacancies for more than two years—and Aaron Sellers and his friends were told that there was no law that could compel the state to fill them. And when, in 1957, a new, different Board of Registrars was appointed, and Sellers and his friends returned, hoping for a better result, they found the Board office again empty (“We couldn’t find out where the Board were,” he says) and they realized they would have to begin the same laborious legal proceeding all over again—with, almost certainly, the same result at the end of it.
ALL ACROSS THE SOUTH, the eleven states of the Old Confederacy that stretched in a great crescent from the Atlantic Ocean to the plains of West Texas, black American citizens being discriminated against—not only in voting but in housing, in employment, in virtually every aspect of life—were trying during the 1950s to turn to the law so that they could enjoy the same rights as white Americans. And all across the South, black Americans were finding what the blacks of Bullock County had found: that there was no law that could help them.
Once, long before, for a brief period, there had been such laws.
Some had been woven into the fabric of the Constitution that was America’s highest law. The three great “Civil War Amendments” to the Constitution had been passed to give force to the concept of the equality of all men which had been proclaimed in the Declaration of Independence but which had then, in submission to the slaveholding South, been omitted from the Constitution itself. The Thirteenth Article In Addition To, and Amendment Of, the Constitution outlawed the institution of slavery; the Fourteenth made former slaves citizens, full citizens entitled to “due process of law,” to “the equal protection of the laws”—to all the rights, the sacred “privileges and immunities,” of citizens; the Fifteenth made specific that among the rights of these new citizens was the right to vote: the right on which all other rights rest in a democracy in which governmental powers were derived from the consent of the governed. “The right of citizens … to vote shall not be denied or abridged … by any State on account of race, color or previous condition of servitude,” the Fifteenth Amendment proclaimed. Each of the amendments, or articles, had an identical final clause—“Congress shall have power to enforce this article by appropriate legislation”—and in the decade immediately after the terrible war, a vengeful Congress determined to “reconstruct” the South had exercised that power, accepted that responsibility, enacting specific national statutes to give teeth to those guarantees. In 1866 it passed the first Civil Rights Act, which enumerated, in provisions both detailed and sweeping, the “civil rights”—the specific rights, privileges, and immunities of citizens—which were not to be left to the varying whims of states but were to be protected by the sovereign central government. In 1867, it passed the First Reconstruction Act, which not only disbanded the governments of the rebel states but carved the South into five military districts subject to martial law to ensure that the black man’s right to vote would be backed by federal bayonets. And when the South thereupon erupted in rage, and the men of the Old Confederacy donned the hoods of the Klan and rode out in the thousands to beat and maim and kill, Congress passed more laws—stiff election-enforcement bills—that prohibited the use of force or intimidation (or of bribery or fraud) to deter citizens from voting because of their race, and that ensured, as well, that, if necessary, those bayonets would be used. And in 1875 it enacted another Civil Rights Act, one that sought to guarantee Negroes the right to serve on juries and that also sought to free them from discrimination in the daily round of life, guaranteeing their rights to “the full and equal enjoyment” of “the accommodations of inns,” of “theaters and other places of public amusement,” and of public facilities and “public conveyances” of every type.
The Civil Rights Act of 1875 was the high point—and the end point—of the passage of such laws, however. In that very year, a series of rulings by the United States Supreme Court—very narrow rulings, in tune with the growing laissez-faire attitude of the time and in tune also with the popular feeling that perhaps the government had gone far enough in handing the freedman new rights—began drastically limiting the scope of the Fourteenth and Fifteenth Amendments; by the time, two decades later, that the Court had finished, the Amendments’ guarantees had been held to apply only to actions by a state, not by the state’s citizens, whether acting alone or in a group; in 1882, the Court, overturning the conviction of members of a Louisiana mob that had broken up a Negro political rally, in effect held that while a state couldn’t break up a rally, it was legal for a mob to do so, unless there were prohibitions against such an action in the state’s—not the federal government’s—laws. (There were none in Louisiana law.) In 1883, in a ruling that in effect struck the 1875 Civil Rights Act from the statute books, the Court, acting under the same principle, struck down the prohibitions against discrimination by hotels, theaters, restaurants, and other places of business, and by “public conveyances.” One individual civil rights law after another was found unconstitutional, until finally only three—all vague, ambiguous, and essentially unenforceable; mere “fragments of the original legislation,” a Justice Department official was to call them—remained on the national statute books, so that Negroes were left with no federal protection against de facto segregation in the rounds of daily life.
During the many decades that followed, these invalidated laws against segregation were not replaced by other national laws. No civil rights legislation of any type was passed by the federal government after 1875. The national laws were replaced by state laws that allowed segregation—that in fact required segregation. As Richard Kluger wrote in his monumental book Simple Justice, the Supreme Court had “flashed the green light,” and the eleven southern—and several border—states sped through it, passing legislation that made segregation a matter not merely of custom or tradition, but of law. In 1887, the Florida Legislature passed a statute requiring that white and “colored” passengers be separated on railroad trains, Mississippi adopted a similar law in 1888, Texas in 1889, and in 1890 Louisiana followed suit—with an act whose key phrase was to become widely adopted: “all railway companies carrying passengers in this State, shall provide separate but equal accommodations for the white, and colored, races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.” Any passenger, white or Negro, not obeying the law was subject to a fine of twenty-five dollars and up to twenty days in jail. By 1895, every southern state had, by similar “separate but equal” laws, formally relegated Negroes to the front coaches that were nearest to the soot-belching engines. As Kluger wrote: “The Jim Crow era had begun.”
It spread rapidly, particularly after the Supreme Court in its remarkable 1896 verdict in Plessy v. Ferguson ruled that the Fourteenth Amendment “could not have been intended” to give the Negro equality in social situations but only “before the law”—and that racially separate facilities were therefore legal so long as they were equal, and that social segregation was therefore not discrimination. By the beginning of the twentieth century, the legislatures of the southern states had written into statute books laws that, in Kluger’s words, “officially designated” the black man as “a lower order of being”—laws that stipulated that not only in railway cars and stations, not only in hotels and restaurants but in courtrooms (where, in addition, restrictions were placed on the status of blacks as plaintiffs, witnesses, and jurors), in cemeteries, and in hospitals, in bathrooms and at water fountains, black people and white people would not mix. It was no longer the option of an individual restaurant or hotel owner whether or not to separate his clients by race; under the law, he must separate them. (Interracial dating an
d marriages were strictly forbidden, of course, and special emphasis was placed on separation in the schools, for what would be the inevitable result of letting white girls mingle all day with black boys but the most dreaded threat of all? Mississippi’s United States Senator Theodore Bilbo spelled it out in 1947 in a self-published book, Take Your Choice: Separation or Mongrelization: better to see civilization “blotted out with the atomic bomb,” he wrote, “than to see it slowly destroyed in the maelstrom of miscegenation, interbreeding, intermarriage, and mongrelization.”)
The place of Negro citizens in the southern states’ political picture had undergone a parallel transformation. Reconstruction legislation had sought to make the newly freed slaves a part of southern political life, but the protection of black voters from fraud, trickery, and the outright brutalities of mob intimidation at a thousand polling places throughout the South required an enormous number of troops. In 1876, Rutherford B. Hayes won the presidency with a razor-thin margin provided by the disputed electoral votes of three southern states, and as part of the negotiations under which he received those votes, federal troops were withdrawn from the South, and the vote began to be taken away from the new Negro citizens—so effectively that by 1889, a prominent southern editor would remark that “The Negro as a political force” was no longer a “serious consideration” in the region. In the 1890s, southern states passed laws to keep that status quo. They instituted poll taxes—often retroactive, sometimes to age twenty-one, so that the amounts involved might be prohibitive for poor people; by 1901, every southern state had its poll tax. In 1898, Louisiana passed a “grandfather clause” that made registration automatic for any man whose father or grandfathers had been registered before Reconstruction—meaning most southern white men—and that, through prohibitive property and educational requirements, made registration very difficult for any man whose father or grandfathers had not been registered—meaning most southern black men. By 1901, every southern state had its grandfather clause. The “white primary” was another effective means of evading the Fifteenth Amendment’s wording that the right to vote should not be denied because of race or color by any state. Democratic Parties in the various states declared that the party’s primary elections were not state functions but rather the mechanisms of a private organization for selecting its nominees, and that the parties were therefore allowed to exclude Negroes from membership, and hence from the right to vote in the party’s primaries. So dominant was the Democratic Party in the Old Confederacy that Negroes were therefore excluded completely from the only election that mattered. The combination of these techniques was so effective that in the 1940 elections only about 2 percent of Negroes of voting age in the South, where most black Americans lived, cast votes.
Master of the Senate: The Years of Lyndon Johnson Page 109