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I.F. Stone Reports: Moving the Constitution to the Back of the Bus

During Reconstruction, when the Southern states were still under military occupation, a Mississippi editor who was an “unreconstructed rebel” published an editorial in the Vicksburg Times called “The Scoundrelism of Satraps.” It severely criticized the Yankee general in command of that area. The editor was arrested and held for trial before a military commission under the Reconstruction Acts. He sought his freedom on a writ of habeas corpus, and when this was denied by the circuit court, appealed to the Supreme Court.

The radicals in Congress, fearing that he would win and that the Court might hold the Reconstruction Acts unconstitutional, as indeed a majority seemed about to do, took an extra-ordinary step. Though the Court had already taken jurisdiction and heard argument in the case, Congress over President Johnson’s veto passed a rider amending the Judiciary Act of 1789 to withdraw jurisdiction in habeas corpus appeals from the Supreme Court. Thereupon in Ex Parte McCardle (7 Wall. 506) the Court, in 1869, regretfully dismissed the editor’s appeal on the ground that authority to hear it had been withdrawn.

This obscure, dubious, and difficult case is the nearest thing to a precedent in American constitutional law for a bill Nixon has submitted to Congress. This declares a “moratorium” on all busing decisions by the federal courts until July 1 of next year or until the passage of its companion measure in his anti-busing program, the “Equal Opportunities Educational Act of 1972,” if that should be passed earlier. The effect of Ex Parte McCardle was to prevent the Supreme Court from enforcing a basic constitutional right, that of habeas corpus. The purpose of “The Student Transportation Moratorium Act of 1972,” as submitted to Congress by Nixon, is to prevent the Supreme Court and the lower federal courts for a time from enforcing, as they deem necessary, the constitutional right of blacks and other minorities to nonsegregated schools under the “equal protection” clause of the Fourteenth Amendment.

The constitutional question raised in both cases could hardly be more fundamental. Can Congress by legislation block the courts from enforcing fundamental rights? This casts a shadow far beyond the issues of school desegregation or of busing as one means of implementing it.

This is the second time in less than a decade that the Republicans have put forward this particular ploy to undercut Supreme Court decisions they disliked. In August, 1964, the late Senator Dirksen, then minority leader of the Senate, offered a similar “moratorium” rider to suspend for two to four years the historic “one man, one vote” reapportionment decision of the Supreme Court two months earlier. This brought a sharp protest from fifteen of the country’s most prestigious law school deans and law school professors, including Erwin N. Griswold, then dean of Harvard Law School and now solicitor general.1

What they said then of the Dirksen rider applies equally to the busing “moratorium” rider the Administration is now seeking. They said the effect is not merely “to limit the jurisdiction of the federal courts.” It is “to declare by statute, without constitutional amendment, that for a period of time certain constitutional rights may not be vindicated in any court, state or federal.” Only once before in our history, the law professors said, citing the McCardle case, had Congress “acted to prevent a constitutional decision which it anticipated.” Most historians and legal analysts, they went on, “have regarded the McCardle case as an unfortunate episode in our history” which “ought not to be repeated in this even more drastic form.”2

What happened in McCardle and what Nixon proposes now are linked in the painful history of the attempt to achieve full emancipation from slavery. The difference is that then a radical majority sought to enforce the rights of the freedman. Now a conservative white majority under Nixon’s leadership seeks to hand his descendants a setback. For the issue is not busing—busing for better white schools and busing for segregated black schools are accepted and familiar devices. The issue is not to have to go to school with slum children, black, brown, or white. As an outraged white resident of Coy, Alabama, put it to a reporter for the Wall Street Journal (see the article by Neil Maxwell, March 20), “As long as we don’t have niggers on there, it’s not busing. Busing is making white children get on with niggers.” That is the naked issue and that is the real feeling to which Nixon, Wallace, and Democratic opportunists like Humphrey have been pandering.

A constitutional, a moral, a racial, and an educational crisis are intertwined in the controversy Nixon has precipitated by his anti-busing program. It comes at a time when he has been engaged for several years in shaping a new Supreme Court majority which will be as mediocre and compliant as the choices he can get past the Senate. It comes when the Senate is even now wrestling with the question of whether to confirm as attorney general a Goldwaterite Republican indifferent both to civil liberties and minority rights.

A sketch of Richard Kleindienst in the Harvard Law Record of March 3 (he was graduated from Harvard Law School in 1950) recalls that in November, 1969, when 300,000 people were expected in Washington to protest the war, Kleindienst in a planning session advocated mass arrests in case of violence. “When questioned about the constitutionality of his plan, he brusquely replied,” says the account in the Record, “‘We’ll worry about the Constitution later.”’ That seems to be his attitude still as the President’s acting attorney general in formulating this new anti-busing program.

At the White House press briefing on March 17, the acting attorney general showed the same lack of candor and the same talent for the disingenuous that he has demonstrated so fully before the Senate Judiciary Committee. He was asked at the briefing to address himself “to the overall question of constitutionality and particularly the constitutionality of the moratorium legislation.” Instead of beginning with an honest admission of the constitutional complexities and of the fact that even Ex Parte McCardle isn’t precedent enough, he began by trying to give the impression that there was no difficulty whatsoever. Only slowly and reluctantly did he admit some of the truth.

This was his progression from bland misrepresentation to damaging admission: First he said that “there can be no legitimate doubt whatsoever” that Congress under Section 5 of the Fourteenth Amendment and Article III of the Constitution had the power to enact the new anti-busing legislation. This can only be described as the most whopping oversimplification of the year. He said that “many constitutional lawyers had been consulted” and “the opinion of all that I know” agreed that when the moratorium bill was combined with the longer range “equal educational opportunities act” Congress “certainly…has the power.”

All one can conclude from this is that the acting attorney general’s acquaintance among constitutional lawyers must be extremely limited. Section 5 of the Fourteenth Amendment gives the Congress power “by appropriate legislation” to “enforce” the amendment’s grant of equal protection. But any legislation framed not to enforce but to undercut its great purposes would be held unconstitutional by any Supreme Court that did its duty. As recently as 1965 in Katzenbach v. Morgan (384 US 641), the Court, speaking through Mr. Justice Brennan, said that Section 5 “does not grant Congress power to restrict, abrogate or dilute” the amendment’s guarantees of equal protection and due process.

Nor can Article III readily be used for the purpose Kleindienst would assign to it. Article III says the Supreme Court, aside from certain enumerated types of cases, “shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.” But few if any constitutional lawyers today would agree that this regulatory power can be used by Congress, as in Ex Parte McCardle, to prevent the Supreme Court from enforcing fundamental rights guaranteed by the Constitution or from operating as an independent check on the legislative and executive branches of the government. If it could, we would have parliamentary supremacy, as in England, rather than a government of separation of powers with “checks and balances.” In that case minorities would have no judicial protection against majorities.

The real meaning of Article III and the extent to which it may give Congress power over constitutional adjudication is a recurrent subject of controversy whenever Supreme Court decisions displease a substantial body of opinion. In the Thirties radical New Dealers, myself among them, looked to Article III and re-examined Ex Parte McCardle to see if these offered any hope of curbing the “nine old men” of the Supreme Court who were striking down one New Deal reform after another.3 FDR tried his “court packing” plan as a remedy when it became all too obvious that the “exceptions” clause of Article III and Ex Parte McCardle were wan hopes. How wan they remain today was demonstrated just before the White House briefing in which Kleindienst participated.

If he had indeed consulted “many constitutional lawyers” and obtained their advance approval, who and where were they? Why were they not produced to back him up at the White House briefing? Two law professors, Robert Bork of Yale and Charles Alan Wright of the University of Texas, were on hand to give their views but ducked out when told they would be talking on the record with two dozen reporters. They had been told they would be talking only off the record and to a picked few. If the constitutionality of the Nixon anti-busing program is as clear as Kleindienst says it is, one wonders why the only two professors he could marshal refused to say so in public.4

The full flavor of Kleindienst’s presentation is best savored from the climactic portion in the transcript. After he told of the lawyers he had consulted, he was asked a plain question but tried his best to evade a plain answer:

Q. Is there a precedent in case law for this kind of action?

Mr. Kleindienst: The Congress has dealt with the question of remedy in the courts going clear back to 1793 in one way or another. So, to that extent, there is a precedent, and that, I think, is what permits constitutional lawyers to say that Congress has that power. There is no precedent in exactly this kind of situation…. [Emphasis added.]

Even after that admission, he fuzzed the picture and tried to mislead the reporters by going on to say, “…but the Congress, for instance, in the National Labor Relations Act, determined a national policy that was to apply between employees and employers in representation. That, again, is a question of remedy. The Supreme Court has said what the remedy would be under certain circumstances. So, constitutionally, I think there is ample precedent.”

  1. 1

    The list of signers and the full text may be found in the New York Times for August 10, 1964. Also see the discussion on pp. 387-8 of The Constitution and the Supreme Court: A Documentary History, Vol. II, edited by Louis H. Pollak (World, 1966).

  2. 2

    There is a serious question,” Justice Douglas wrote for himself and Justice Black in Glidden v. Zdanok (370 US 530), “whether the McCardle case could command a majority view today.”

  3. 3

    For the most comprehensive argument along these lines see Louis B. Boudin’s Government by Judiciary (1932, reprinted by Russell & Russell, 1968), a two-volume work of enormous scholarship by a man who was in his time a distinguished Marxist scholar and a leading New York labor lawyer. The most recent study of the problem is Congress v. The Supreme Court by Raoul Berger (Harvard University Press, 1969), which is written with distinction. He concludes that the framers intended the Supreme Court to wield the ultimate weapon of the judicial veto and that they never intended the “exceptions” clause of Article III to become a Congressional “check on the Court’s constitutional decisions.”

    I now agree with Berger but perhaps that is because circumstances have changed. Constitutional exegesis, too, depends on whose ox is being gored. The radical Republicans a century ago argued that the Reconstruction of the rebel states to ensure full equality for the freed blacks was a political and not a judicial problem. This was also Dirksen’s view of one man, one vote reapportionment. This is, in part, a semantic dodge when the Supreme Court disagrees with one’s “politics.”

  4. 4

    According to John P. MacKenzie in the Washington Post, March 18, Bork’s colleague at Yale, Alexander Bickel, recently told the House Judiciary Committee that a bill similar to the Administration’s would fail a modern test. Congress “can assign large tasks to the Federal courts” under Article III “and take the tasks away,” Bickel said. But he acknowledged that it can’t “pick and choose” by stripping power when it doesn’t like what the courts have done.

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