THE LAW: Spirit of Marshall & Madison

The legal precedents that apply to Orval Faubus v. the U.S. reach all the way back to a September night during the Revolutionary War when a Connecticut fisherman named Gideon Olmstead, two seamen and a boy, imprisoned aboard the British sloop Active, rose up and overpowered 14 British sailormen and captured the ship for the 13 states. Couple of days later the heroes were themselves chased, caught and captured, not by the British but by the armed brig Convention, in the service of Pennsylvania. They were hauled into the port of Philadelphia, where the admiralty court ordered the vessel sold and the prize money divided one-half to the Pennsylvania seamen, one-fourth to the Pennsylvania treasury and only one-fourth to Gideon Olmstead and friends. During the next 30 years one federal court after another ordered Pennsylvania to hand over the Active prize money to Olmstead, but the state of Pennsylvania doggedly refused to comply.

In 1809 the Supreme Court of the U.S. issued a peremptory writ of mandamus to Pennsylvania in the thundering words of Chief Justice John Marshall: If the legislatures of the several states may, at will, annul the judgments of the courts of the U.S. and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.

When U.S. marshals attempted to collect the money, Pennsylvania’s Governor Simon Snyder deployed militiamen around the state treasurer’s house and appealed to newly elected President Madison for support. But Madison replied in terms that left Pennsylvania no choice but to pay $18,000 to Olmstead, by then 83, and to call off the militia. Said Madison:

The executive is not only unauthorized to prevent the execution of a decree sanctioned by the Supreme Court of the U.S., but is expressly enjoined, by statute, to carry into effect any such decree, where opposition may be made to it.

Since then other governors have called out state troops in an effort to negate the decisions of U.S. courts. In 1932 Governor Ross Sterling of Texas called out the militia to negate a federal court order that removed some local restrictions on the production of oil. Thereupon the Supreme Court gave the spirit of Marshall and Madison its clearest codification. Wrote Chief Justice Charles Evans Hughes:

Where state officials, purporting to act under state authority, invade rights secured by the federal constitution, they are subject to the process of the federal courts . . . The governor of a state in this respect is in no different position from that of any other state officials . . . If it be assumed that the governor was entitled to declare a state of insurrection and to bring military force to the aid of civil authority, the proper use of that power in this instance was to maintain the federal court in the exercise of its jurisdiction and not to attempt to override it.

Arkansas’ Governor Faubus appears to have gone even farther than Pennsylvania’s embattled Governor Snyder in that he appears, personally, to be creating conditions in which he might violate the law. By disposing state militiamen around his mansion to prevent serving of a legal processor warrant, he will be liable (if such a warrant is issued) to punishment of a fine not exceeding $300 and/or one year’s imprisonment.

In the courts, the U.S. can meet Faubus’ challenge by: 1) issuing a court order to Faubus to show cause why he should not be held in contempt for having obstructed the integration orders of U.S. courts; 2) issuing a court order to Faubus to stand down the Arkansas National Guard from the Little Rock Central High School; 3) citing Faubus for contempt. Beyond that, it would be open to the U.S. to withdraw recognition from the Arkansas guard as a part of the federal military establishment, implying a cutoff of the $5,500,000 annual federal subsidy and a recall of federal-issue uniforms, arms and equipment. The U.S. could also summon the Arkansas guardsmen into federal service either to be dispersed or to safeguard the rights of Negro pupils to attend Little Rock Central High School. It is even open to the U.S. to send in detachments of federal troops.

Anywhere along this long legal line Faubus could withdraw, by calling off the state guardsmen and letting integration proceed. In this event President Eisenhower, like Madison, would not be likely to instigate reprisals against the governor. But the U.S. is nonetheless determined to move through the courts, slowly, deliberately, sensibly, to win the battle and safeguard the Constitution. This was the determination, in the spirit of Marshall and Madison, that underlay the cold message sent to Orval Faubus last week by President Eisenhower:

The only assurance I can give you is that the federal Constitution will be upheld by me by every legal means at my command . . . You and other state officials—as well as the National Guard, which is of course uniformed, armed and partially sustained by the Federal Government—will, I am sure, give full cooperation to the U.S. district court.