The Role of Law in the South
By Leslie Dunbar
Vol. 1, No. 7, 1979, pp. 6-8
Twenty-Five years ago, the Supreme Court was just weeks away from a landmark decision that would give hope of civil rights workers struggling to inure equality in education for Blacks. The 1954Brown vs. Board of Education ruling struck down the ‘separate but equal” laws stating that separate segregated schools were inherently unequal.
Later, the 1964 Civil Rights Acts asured every citizen in the U.S., regardless of race, creed, color, religion or national origin, equal rights education, government programs; employment and access to places of public accommodation.
Despite the legislation, the South had its own laws to live by. Laws of conduct that were meant specifically to keep Blacks “in their place.” Laws that denied Blacks their human rights. Anyone dishonoring the sacred laws was treated in the same manner as Blacks.
“The Role of Law in the South” was one of the topics of discussion in a panel session during the SRC Annual Meeting. The panel consisted offormer SRC director Leslie Dunbar, Julius Chambers, the current SRC president, and attorney Charles Morgan Jr.
The panelists basically agreed that the laws are made and enforced by the people – not necessarily by the courts. “Most of the social progress in the history of the country arose not from judges, but from juries and not from bar association lawyers but from social activists,” said Morgan. Chambers added that we must go further than training more lawyers. Instead, we must find a way of meshing law with people who believe in equality.”
Leslie Dunbar’s views on “The Role of Law in the South” as presented at the Annual Meeting follow in their entirety.
The right role of law in the South is what it is everywhere. It is to represent the difference between a society organized and held together by mere force, and one that is organized in behalf of people living at peace nd trust with each other.
The purport of this panel’s questions is, however, more specialized. It asks whether law continues to have practical importance as an instrument of Southern social and political reform. In our minds as we think on that question is the absolutely indispensable role that the decisions of federal courts have played in Southern racial change since 1954, and, indeed, since about 1940.
But in a broader sense, what we so gratefully saw then was not only “reform” of the political order but the law’s own rediscovery of itself, its own, much belated, reassertion of the “role of law.” Because law had been used in the South, and the judges and lawyers who are the law’s housekeepers had allowed it to be used, in the service of a violent society, its primary task had been to keep the Blacks down, keep them “in their place.” In this regard, there was no essential difference of function from county sheriffs and jailors to “leaders of the bar” and on to state and federal appellate courts: all alike served ultimately to control the Blacks. That is what the phrase “law and order” meant.
Moderates seized hold of that phrase during the days of “massive resistance” to give it a different meaning, that of obeying the Supreme Court. But that was only a brief interlude in the term’s steady history, and Nixon and friends put it back, on a national scale, to its traditional Southern significance. The fact that they did, and still do, cannot, however, be allowed to blind us to the fact that “order” is indeed precious, for without it, there can be no social peace.
The newspaper in my Westchester County (N.Y.) town recently exclaimed editorially, in the wake of a scattering of local burglaries, that “fear of the stranger must become our way of life.” That is truly a horrible thought and sentiment, and that editor ought to be gagged and pilloried – if not horse whipped through the streets. But we ignore at our peril the need all societies have for discipline, for the habit of obedience, for respect for other’s liberties and property. I am sure that here in the South as well as elsewhere, law has a necessary role to play, both in requiring discipline and in making of the rules and rulers of society something that all can respect.
Thinking about the right role of law in the South suggests to me four more concerns that ought to be basic. First, when one looks at the prison figures one has to suspect that the law is still at its traditional work, that of controlling the Blacks. Generally speaking, until quite recently – when the examples of persons such as Thurgood Marshall, Earl Warren, Elbert Tuttle, Chuck Morgan, and Julius Chambers came to be felt – Blacks in the South very clearly saw “the law” as the enemy. Many, perhaps most, still do, as do Chicanos of the Southwest and western Indians.
The bulging prison population, the longer and still longer average sentences, the plans for prison expansion, the steady accumulation of persons on death row with 80 percent of all of them in the nation being here in the South – all are indicators of a deformed spirit of law, one intent on control and vengeance. Unless a miracle or two occurs, by the time the Southern Regional Council holds its next annual meeting, the South you represent will have killed by process of law maybe ten or twelve persons, a long reactionary step into the past. The Legal Defense Fund, the American Civil Liberties Union, the Southern Coalition on Jails and Prisons have all fought bravely and well, but the tide has been too great.
But no courtroom victory of the Legal Defense Fund should bring it more honor than its noble defeats here. The Fifth Circuit’s decision of last August in the Spenkelink case may have been, for the present, the final cutting blow. I have read Judge Robert A. Ainsworth Jr.’s opinion in that case. It seemed to me masterfully accomplished, the kind of analysis which should earn a top grade for a law student. But from a court which once so grandly stood between the South and its basest passions, there was spoken not a word of commitment to those once prized qualities of equality and compassion. When the Fifth Circuit, of all courts, can rule as it did that the disproportionate numbers of Blacks and poor on death row that are convicted of murdering Whites, are not “in and of themselves” evidence of discrimination, nor will deign even to examine the disproportionate numbers of the poor, then the role that the South’s law is playing seems to me once again laden with fright.
Second, although the signs abound that popular and political interest in some of the great civil rights causes has declined, the law’s interest ought not. We do not need to litigate every conceivable point, and lawyers most surely have no business pursuing litigation issues of interest to them but of little to their clients, the Black communities. But when all that has been said, the law must still be called upon to stand guard over what was so painfully won, and to move on to occupy those fields of equal opportunity not yet cleared.
I don’t envy today’s civil rights lawyers. Theirs will not likely be the brilliant, heady victories of a decade or two ago. Their names may consequently not become, as we say, household words, and babies may not be named for them. But they have a tremendously important job to do, holding the line against the Supreme Court and other federal courts which are no longer their assured friends; and, one might add, educating the 152 new district judges Carter is appointing.
This Supreme Court’s opinion in the hard social cases reaching it are jumbled and instable; given the mediocrity of this Court we can welcome that, for such rulings can hardly be longlasting precedents. In the capital punishment cases, the members were scattered in nearly every conceivable direction. In the Bakke case, for another example, important though it was, only Justice Lewis Powell agreed with the whole ruling, which he wrote. (As the only Southerner on this Court, perhaps he has some of those superior regional insights into racial problems we sometimes brag about.)
There is a saying in the West Virginia coal fields that there will be no peace in West Virginia until there is justice in West Virginia, and of course that is true nationallyas well, though we may have interludes of social peace without justice. It is true in the South. There is as yet too much racial injustice, too much poverty, for there to be lasting social peace. There is too much exploitation, too many officeholders leaving office richer by far than when they came in, too great and an ever growing inequality of wealth and income. Lawmakers – that
is, judges, legislators, administrators – are almost by definition members of the elite; and elites are those who have profited. Is it then too much to ask that law, law which they make, can bring about that justice in our land and in this region that will end exploitation and poverty?
The question will have to stay unanswered. The right role of law in the South, as everywhere and always, is to enshrine liberty, and liberty’s offspring, equality and justice. When law instead upholds relations that are intrinsically unjust – such as sending the poor to prisons and even to execution in numbers that defy fairness law has betrayed its mission.
When law stood for segregation and overt racial discrimination, or when now it denies equal school funds to all children or equal access to medical help to all women or perpetuates regressive taxes, law betrays its mission to provide equal treatment.
And when law puts the pretended security interests of the state ahead of the citizen’s liberty and even ahead of its own dignity, law becomes a whore. And if you stop to think about it, a male whore at that.
Leslie Dunbar is director of the Field Foundation (presently on a leave of absence) and a former director of the Southern Regional Council. His articles and essays on political affairs and civil rights are widely published and his book, A Republic of Equals, has received much acclaim.