The Braille Monitor                                                                                               April, 2002

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The Individual's Role in a Democracy

by Jacobus tenBroek

Jacobus ten Broek
Jacobus tenBroek

From the Editor: In the process of archiving many of the Federation's historical documents, we recently discovered a tape recording of the following speech which was the last in a series of lectures delivered at East Contra Costa College, probably in December of 1962. At the time Dr. tenBroek was the chairman of the California Social Welfare Board and Professor of Speech at the University of California at Berkeley. The tape is remarkably clear except that the recording system had not been turned on before Dr. tenBroek began speaking. As a result, the first few words are missing. The speech is remarkable for its clarity of thought and delivery. It has nothing to do with blindness, but it certainly demonstrates once again the clarity and elegance of the mind of the man who founded our movement and his deep commitment to equality for all citizens. From the sound of the applause, the audience must have been very large. Here is the speech:

. . . Consideration handed down a landmark decision. That decision was reached in the case of Brown vs. Board of Education. "The Constitution," said the Supreme Court, "forbids segregation in public educational facilities. The schools must be racially integrated." The doctrine of "separate but equal" long held to govern such matters was repudiated. The new rule was to be put into effect by the states, not immediately as would normally have been the case, but, as the phrase goes, "with all deliberate speed," in the light of the local circumstances, educational and administrative.

The decision set off a chain reaction: manifestos were issued, declarations of Constitutional principles were propounded, joint resolutions were passed. In the southern states all branches of the government went into action. The legislatures adopted a packaged program. The mix in the ready-made package contained an assortment of laws for the control and closing of the public schools, for repealing compulsory attendance laws, for the assignment and distribution of pupils, for the revealing of present and past organizational membership by teachers, for the establishment of state sovereignty commissions, and for the frustration or annihilation of the National Association for the Advancement of Colored People [NAACP] and for state so-called interposition.

Where necessary, state constitutions were amended to sustain these enactments. Governors suited the words to the action and the action to the word. They railed against the Supreme Court. They planted themselves on the Tenth Amendment. They declared their states sovereign and independent. They publicly refused to drink, as they said, from the cup of genocide. Some of them even incited the mob a little. One called out the National Guard to keep nine colored children from attending a white high school. Another erected his person as a physical barrier to the admission of a colored university student.

In reviewing these laws and other actions, the state courts, with some doubts and minor exceptions, lined up with the other state officials rather than with their judicial superiors in Washington. Many old and some new constitutional questions were raised by these reactions in the southern states: is the Supreme Court the final interpreter of the Constitution, or may the states finally determine what powers are reserved to them for themselves? Could the states, following the model of Madison and Jefferson in the Virginia and Kentucky resolutions of 1798, constitutionally interpose to nullify what they consider to be flagrant, palpable, and deliberate violations of the Constitution by the federal government?

Is education a matter placed by the Tenth Amendment within the exclusive jurisdiction of the states, or are the clauses of the Fourteenth Amendment applicable? Was the Fourteenth Amendment, ratified at the close of the Civil War with the concurrence of federal troops, which established and protected those legislatures, constitutionally adopted? In the face of its fifth section, authorizing Congress to enforce it by appropriate legislation, could the Supreme Court order it carried into effect in the absence of statutory provision therefor? In the existing state of federal statutes, could the President execute the Court decree himself by the use of federalized National Guardsmen and regulars in the armed forces of the United States? Could a lower federal court properly issue an injunction against virtually the entire state of Mississippi? Was a governor criminally liable for violating it? Do private associations have a constitutional right to organize, to hold confidential their lists of members, and to solicit and conduct litigation in the federal courts for the purpose of establishing the equality of the races?

The events have been spectacular. Given the basic decision in the Brown case, however, the legal and constitutional questions have been less so. Some new constitutional law is emerging. No old constitutional law is being overturned. In this respect the most significant lesson to be learned from the post-decision episodes and arguments is the invincibility of constitutional error. No matter how often the doctrine of state interposition, for example, has been put down in our history, no matter how thoroughly repudiated by Congress, blasted by national executive action, finally disposed of by the courts, and buried by the Civil War itself, still is it disinterred and resurrected to reenact again its inevitable fate and be buried once more.

The flaming controversy to which Brown vs. Board of Education gave rise tends to obscure from the public view rather than to clarify its constitutional significance. Perhaps Brown vs. Board of Education does not match some of the more famous decisions of John Marshall or, say, Justice Mansfield's holding in the Somerset case freeing the slaves in England in 1776. Though it only carried out the original purpose of the Fourteenth Amendment, yet that purpose had been subverted and lost sight of in the intervening century, and the Brown decision therefore stands in the same tradition of creativeness with Marshall and Mansfield, and this comparison properly suggests the measure of the Brown decision.

1954 will not stand alone in the annals of the Warren court or in the constitutional history of this century. In April, 1962, the Supreme Court of the United States handed down another landmark decision. This one was reached in the case of Baker vs. Carr. The problem in that case is quite different from Brown vs. Board of Education, and yet in many ways it was quite similar. Apportionment of representation in the state legislatures was held to be a matter within the jurisdiction of the federal courts, and one upon which they would act. The doctrine that this type of controversy was nonjusticiable was repudiated. The representativeness of representatives in the state legislature, therefore, has been made a matter of federal constitutionality. However, in exactly and without necessarily excluding other factors such as geography and the economy, the state legislatures must represent the people. Remarkable disproportionality will no longer be tolerated. The nation will drag the states into the second half of the twentieth century, albeit screaming.

Country life and agricultural activity, sunk to a low estate in society and the economy, cannot maintain their erstwhile representative dominance in the state legislatures by the failure of their representatives to reapportion the legislatures. The industrial, the city, and the suburban masses must be given their due, or at least some part of it.

Neither in the Carr case nor in the Brown do we see the Supreme Court of the United States blazing a trail of social or political progress. Boldly pioneering on the frontiers of democracy is rarely if ever the judicial role. Indeed these two landmark decisions are not at all inconsistent with the theory of the judicial lag--the theory, that is, that the courts confirm progress; they do not create it. Progress in race relations and in adjusting legislative apportionment to the profound reorganization of life and redistribution of the population of the states have long since, as Hamlet said, fallen out of joint with the time, grossly and shockingly so. What was needed was drastic action to bring or make possible progress in these areas to the point where the judges lagging normally behind events could see it without looking backward.

But what branch of the government could take the action? Aye, there was the rub. Congress could not. It was held immobile in the field of race relations by seniority-conferred power on southerners in the committees of the House and by the rules of procedure in the Senate. Likewise immobile were the state legislatures, where the agricultural interests would not, could not indeed be expected to, proceed self-moved to the destruction of their own power and their own strategic position.

With the legislative branches of government hamstrung and impotent, with the executive constitutionally sidelined in the absence of statutory direction and authority, with no issue at stake of nullifying affirmative action taken by coordinate departments of the national government, with the problems being only those of state action and inaction and national corrective power, the Supreme Court was born, or at least grew up, to be the one to set the matter right. The time is still out of joint, but it is less so now.

However, for this occasion our interest in these two cases does not derive from the role of leadership assumed by the court or the factors that stimulated and made that role possible, or even from the importance of these decisions in the life of the nation. Our interest derives from another source, from the constitutional chords that were struck by the court. What were these? What was the constitutional limitation or directive? I have already indicated it was contained in the Fourteenth Amendment. Oddly enough, California was the last state to ratify the Fourteenth Amendment, and this occurred only very recently. The Amendment was adopted at the close of the Civil War. It was put into effect in 1868. It was not until 1959, five years after the Brown decision, that California finally signified its approval of the Fourteenth Amendment to the Constitution of the United States. As we Californians contemplate southern resistance to the Brown decision, we might remind ourselves that racist politics played a considerable part in our original rejection of the Fourteenth Amendment.

What is the great constitutional engine in the Fourteenth Amendment, which served as the propulsive force in the Brown and Carr cases? It is the seminal, the pervasive, the multifaceted, the much-misunderstood, the much espoused, the much-criticized notion of equality. "All men are created equal," proclaimed the Declaration of Independence. All men? well not quite all--not Negro slaves, owned by Jefferson among others, not Indians, not taxed and not part of the community. Not the deprived and down-trodden generally, or at least not just yet. Yet this one phrase and proposition sounded the death knell of slavery. That self-evident truth of Jefferson's Preamble eventually made the whole institution untenable. It became the piercing cry of the abolitionist, who linked it with and gave it primacy over the privileges and immunities of national citizenship and the due process protection of life, liberty, and property. These are the source, the foundation, the content, and the rationale of the first section of the Fourteenth Amendment.

So ninety years after the Declaration of Independence Jefferson's self-evident truth finally made its way explicitly into the Constitution. The form was slightly altered. It gave emphasis to the protection element in the concept of equality: due and full protection of all men in their natural rights. "Nor shall any state deny to any person within its jurisdiction the equal protection of the law." Those are the words that were put into the Fourteenth Amendment. Any person? The equal protection of the laws? Well, not quite any person, not quite full protection--not just yet, anyhow. Indians still were not taxed, and by the amendment itself they were not to be counted. Slavery had been abolished. Its badges and indicia, the long social aftermath of a previous condition of servitude, remained to rack the century that lay ahead. The deprived, the destitute, the diseased, the degraded--for moral pestilence and physical pestilence in Milton's phrase "leaped forth into the world like two twins cleaving together." And race prejudice, "that other sturdy pestilence," in Justice Douglas's phrase, formed a third sibling to the other two. These also were not contemplated by the constitutional command or, better, were not reached by its administration.

Today, another ninety years later, after having been for nearly a century lost and forgotten or shamelessly subverted by the separate-but-equal stratagem, equal protection is again emerging from its relative latency to strike down some of these vestiges, to uproot some of these conditions. "No state shall deny to any person within its jurisdiction the equal protection of the laws," chorused all voices on the Supreme Court in unison in school desegregation cases. "No state shall deny to any person within its jurisdiction the equal protection of the laws," said a majority of voices on the Supreme Court in the apportionment-of- representation case. And so no state shall. Any person? The equal protection of the laws? Well, not quite any person, not quite full protection--at least not just yet, anyhow.

Beyond the desegregated schools are the schools still segregated. Beyond them hotels, restaurants, theaters, swimming pools, parks, beaches, transportation facilities, housing, policing, protection, voting, and so on. Beyond these are other instances and institutions of race prejudice aimed at the blacks and those aimed at other colored people, and those aimed at some of the whites. As a part of race prejudice, minority status, and many other social and physical factors as well, there is poverty, and there are the victims of poverty. The task of equality indeed is not now done, in truth is never done.

American political and constitutional assumptions and goals, liberty, the dignity of the human person, the right of private property, security, equality intermingle and overlap. They also are fluid and variable in content. To the extent that they are a living reality in a developing democracy, they are constantly growing, maturing, and changing. Every generation, every decade is a formative period in the constitutional life of the nation. Moreover, emphasis on the various elements has shifted at different periods in our history in the documents which have embodied and expressed the different movements, forces, and times, and among the prominent political writers and speakers.

Equality was the dominant note in the Declaration of Independence. Property assumed relatively a stronger position in the Constitution. During the nineteenth century, when fortune and geography gave the nation military safety and free land and the open frontier gave individuals a sense of economic safety, security was taken for granted, and liberty was elevated to a primary position. "When the traditional foundations of culture crumble," wrote Ralph Henry Gabriel in connection with the impact of the world depression of the 1930's and the hot and cold wars of the 1940's, "when government by law gives way to government by irresponsible force, the preoccupation with liberty as an end in itself is replaced by a new search for security: mental, social, economic, and even physical."

Tension can be endured, indeed can be felt, only so long. Eventually, though men live on the threshold of international doomsday, the less spectacular but nevertheless urgent and pressing social, economic, and humanitarian problems of the nation force their way back into the nation's attention. When that happens, considerations of equality move again to the forefront. In some measure this is the constitutional story of the 1950's and the early 1960's in the United States of America.

Any institution or doctrine of importance and vitality has its foes as well as its friends, its detractors as well as its supporters. Such in any event has been the history of the doctrine of equality. Its contemporary experience too has been of this character. Those with an adversary or only an adverse interest, those who have or fancy they have any advantage in a system of inequality, those with contradictory social philosophies, those who think that the observable differences among men are relevant to this problem: all have been articulate in formulation of their opposition.

Read, for example, these choice passages from a Congressional speech by Frances Wilkinson Pickens delivered way back in 1836 in the course of the debate on the power of Congress to abolish slavery in the District of Columbia. Many of you will remember that Pickens was the governor of South Carolina at the time Fort Sumter was fired upon. These sentiments are at one with others heard then and now from white supremacists, who intone their refusal "to drink from the cup of genocide," as they say. "What was the meaning?" inquired Pickens of the author of the Declaration of Independence, "as he spoke the proposition that all men are created equal. Was it meant that all men are created equally strong and of equal size? Surely not. Was it meant that all men were born free? From the days of the child in the bulrushes up to the present day there never was an infant wrapped in swaddling clothes that was born free. Was it meant that all men were born with equal rights and equal destiny? From the time it was declared that the iniquities of some should be visited unto the third and fourth generations," said Pickens, "from the days of Moses and the children of Israel, the history of mankind proclaims that there is an elect and chosen few, made the peculiar receptacles of the favors and blessings of an all-wise and all-pervading providence."

This is the world as we find it," said Pickens, "and it is not for us to war upon destiny." "What then," continued Pickens, "was the meaning? It was intended to declare the abstract truth that all men were born equally entitled to political privileges. Let us look into this as practical legislators. Throw man back into his state of savage existence, proclaim his physical and brutal propensities triumphant and himself lord of the recesses of the wilderness, and then this abstract truth may have some practical bearing. But let him accumulate property, let his intellectual attributes triumph over his brutal nature, make him civilized, and send him forth erect in the image of his maker with the light of reason and benevolence beaming from his countenance. Then his great character is that he becomes a social being. Organize him into society to act with his fellow man and then proclaim the abstract truth that all men are equal as a great and fundamental doctrine to be practically acted upon, and you do nothing more or less than raise his hand against every other man and every other man's hand against him. And, instead of it becoming a doctrine full of light and peace to a world sleeping in darkness and bondage, it becomes a doctrine of universal discord, confusion, and ruin." So says Mr. Pickens.

Intellectuals, in that day as in this, joined the clamor against the doctrine of equality, though perhaps they may have spoken from different motives. Have you seen an essay, for example, by Aldous Huxley entitled, "The Idea of Equality?" It might better have been entitled, "The Very Idea of Equality." In it Mr. Huxley makes some very strong and, as I think, some very strange statements. "That all men are created equal," says Huxley, "is a proposition to which at ordinary times no sane human being has ever given his assent. A man who has to undergo a dangerous operation does not act on the assumption that one doctor is just as good as any other. Editors do not print every contribution that reaches them, and when they require civil servants, even the most democratic governments make a careful selection among their theoretically equal subjects."

Huxley finds the original assumptions of the theory of democracy to be these: "That reason is the same and entire in all men and that all men are naturally equal. To these assumptions are attached several corollaries," says Huxley, "that men are naturally good as well as naturally reasonable, that they are the products of their environment, that they are indefinitely educable, and the main conclusions derivable from these assumptions and corollaries," says Huxley, "are the following: that the state ought to be organized on democratic lines, that the governor should be chosen by universal suffrage, that the opinion of the majority on all subjects is the best opinion, that education should be universal and the same for all citizens."

"The primary assumptions," concludes Huxley, "are almost certainly false. Reason is not the same in all men. Human beings belong to a variety of psychological types, separated one from another by irreducible differences. Men are not the exclusive products of their environment. A century of growing democracy has shown," says Huxley, "that the reform in institutions and the spread of education are by no means necessarily followed by improvements in individual virtue and intelligence. At the same time," says Huxley, "biologists have accumulated an enormous mass of evidence tending to show that physical peculiarities are inherited in a perfectly regular and necessary fashion. Body being indissolubly connected with mind, this evidence would almost be enough in itself to prove that mental peculiarities are similarly heritable. Mental idiosyncracies are inherited in exactly the same way as physical idiosyncracies": so says Mr. Huxley.

The attacks upon the doctrine of equality by Pickens and by Huxley, which are typical of many, if not almost all others, are infected with a common fallacy. They are classic examples of the straw-man technique. If you set up a man of straw instead of a real one and you make him the target of your artillery, you can easily blow him down. Having stripped the doctrine of equality of its essential qualities, having stood up in its place a flimsy substitute without the strengths of the genuine article, the task of demolition is easy enough.

Contrary to Huxley, the doctrine of equality does not claim or assume that one doctor, one applicant for civil service positions, one speech, or one essay is as good as any other. Indeed the speech of Pickens and the essay of Huxley make it quite clear that some are not very good at all. Contrary to Pickens and Huxley, the doctrine of equality does not claim or assume that reason is the same in all men, whether entire or not, or that they are equally or innately reasonable, or that they are equally or innately good and virtuous. Contrary to Huxley, the doctrine of equality does not claim or assume that men are more or less the products of their environment than of their heredity or that they are equally or indefinitely educable or that the opinions of the majority on all subjects are necessarily the best.

The most important fact about the doctrine of equality is that it presupposes that men are not the same, but that they are different, different in knowledge, different in wisdom, different in mental capacity, different in physical attributes, different in motivation, different in environment, different in heredity, different in moral qualities. We must emphasize the similarities among men and disregard the differences.

Let me state in summary and fairly categorical form the three definitions of equality which have evolved in democratic systems and have had particular applications in the United States. These might be captioned 1) the natural-rights definition, 2) the classification definition, and 3) the one-for-one definition--the natural-rights, the classification, the one-for-one. The first, the natural rights, is that contained in the Declaration of Independence, in the Constitutional arguments of the abolitionists, and therefore also in the original purpose of section one of the Fourteenth Amendment.

In the Declaration of Independence and in abolitionist constitutional theory, the concept of equality was integrally linked to four other common elements in western democratic theory: 1) unalienable rights, 2) the institution of government to protect these rights, 3) government by the consent of the governed, and 4) the right of the people to change government when it fails to fulfill its purpose and to change it either by peaceful means or by revolution.

Thus, in the Declaration of Independence and in abolitionist usage and later as underlying the Thirteenth Amendment and as embodied in the Fourteenth Amendment, the clause had almost exclusively a substantive character: protection of men in their fundamental or natural rights was the basic idea. Equality was a modifying condition. The clause was a confirmatory reference to the affirmative duty of government to protect men in their natural rights. This established its absolute and substantive character, though the use of the word "equal" seems to give it a comparative form. Equal denial of protection, that is, no protection at all, is accordingly a denial of equal protection. The requirement of equal protection of the laws in the Fourteenth Amendment cannot be met unless the protection of the laws is given. And to give the protection of the laws to men in their natural rights was the sole purpose in the creation of government.

This being so, the phrase, "No state shall deny," becomes a simple command "each state shall supply," and the whole clause is thus understood to mean, "Each state shall supply the protection of the laws to men in their natural rights, and the protection shall always be equal to all men." It was because the protection of the laws had been denied to some men, the Negro slaves, that the word "equal" was used.

The second definition of equality, the classification definition, contrasts sharply with the natural-rights definition. It is flexible and practical. In a sense it is procedural rather than substantive. It makes no reference to particular rights such as life, liberty, and property, which must be protected by government in all circumstances and at all times and for all people. The contrast here is between general legislation, which applies without qualification to all persons, and special legislation, which applies to a limited class of persons.

Now what groupings and what classifications can be made by the legislature or by the public without violating the requirement of equality? The answer to this question was provided in the famous old San Francisco laundrymen's case, Yick Wo vs. Hopkins. "The equal protection of the laws," said Justice Matthews in that case, "is a pledge of the protection of equal laws. Moreover, though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand so as practically to make unjust and illegal discriminations between persons in similar circumstances material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

Class legislation, discriminating against some and favoring others, is prohibited. But legislation which in carrying out a public purpose is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. Thus in the Chinese laundryman case itself, if the purpose of the San Francisco ordinance, in drawing a line of distinction between laundries in wooden buildings and those in brick or stone buildings, had been fire control and prevention (and that in a city plagued by many fires and several times nearly wiped out by conflagration), the purpose would have been constitutional and the application properly related to it.

The purpose, however, was to drive the Chinese out of business. Since most of them operated within wooden buildings, the classification was closely related to the purpose of driving them out of business, but the purpose itself was discriminatory and forbidden. These were unjust and illegal discriminations between persons in similar circumstances material to their rights. The public had proceeded with an evil eye and an unequal hand.

This is the very doctrine applied in Brown vs. Board of Education. The law that shielded the Chinese alien in California in the 1880's at long last in the 1950's came to protect the Negro citizen everywhere in the nation. The law initially developed in a case involving a business or an occupation was held three quarters of a century later to be good enough for education too. "If the purpose in segregating the races in schools is the maintenance of white supremacy and the continued subordination of the Negro," held the Supreme Court of the United States in the Brown case, "the purpose itself is discriminatory and forbidden by the Constitutional command of equality, and this is so, even though the classification might be scrupulously related to the purpose. If the purpose of the public school system is education, then the purpose is desirable and constitutional. But the segregation classification is unrelated to it. Since the public has the same need for an educated citizenry regardless of race, and all children regardless of race have the same need for education and the same potential for benefitting from it, separate educational facilities," concluded the court, "are inherently unequal."

The third definition of equality, the numerical or one-for-one definition is in many ways a particular instance of the classification definition. This definition so far has only emerged in the realm of political participation. Its most common form is the slogan, "One man, one vote." Here universal suffrage is not claimed as an absolute right. Some exclusions from the franchise, for example, are familiar to all of us: aliens, (for me) children, mental defectives, convicted felons, those falling below a minimum standard of literacy and understanding of institutions of government. Certain grounds for exclusion from the ballot have been prohibited by the Constitution itself. "The right of citizens of the United States to vote," says the Fifteenth Amendment, "shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." The Nineteenth Amendment added sex to this list of prohibited grounds.

By a state constitutional amendment of 1960 the state of Louisiana excluded these three groups from the ballot: persons who have lived with another in common law marriage within the preceding five years, persons who have given birth to an illegitimate child within the preceding five years, persons who have been proved to be or who have acknowledged themselves to be the fathers of illegitimate children within the preceding five years. (Whether the acknowledgement was within the five years or the birth is not indicated.) The obvious purpose of these provisions is to bar the Negro. As such they violate the Fifteenth Amendment to the Constitution of the United States. However, if they were merely non-discriminatory good-character requirements, would they then meet the touchstone of the Constitution? The courts have not yet said the answer, but there would still be equal-protection problems in the provision even if they were not discriminatory against the Negro.

The one-man, one-vote proposition comes down to this. There are few differences among men which may be taken into account when considering their right to participate in the suffrage, and those differences that may be taken into account must be carefully scrutinized for their relevance to the purpose of the suffrage. This in substance was the formula employed by the Supreme Court in the recent case of Baker vs. Carr. Its novelty in that case was its application federally to a state dilution of the right to an equal ballot, which had hitherto been held immune to federal correction. The voter in an agricultural county had a vote which counted far more than the vote of the voter in the urban county. The gross disproportion of representation to voting population was claimed to be arbitrary and capricious and therefore offensive to the equal protection clause of the Fourteenth Amendment. "A citizen's right to a vote free of arbitrary impairment by state actions," said the Supreme Court, "is a right secured by the Constitution of the United States."

Now let me recapitulate briefly. I have pointed to the recent and spectacular re-emergence of equality as a Constitutional and political ideal in America and the violence of the resistance to that trend. I marked the main path of the history of the concept in this country beginning with its primacy in the Declaration of Independence, its transformation by the abolitionists into the principal tenet in the crusade leading to the freeing of the slaves and the extirpation of the institution of human bondage, and its eventual incorporation into the Constitution by way of section one of the Fourteenth Amendment. I have portrayed and commented upon the main lines of intellectual and interested attack upon the concept, and I have detailed the definitions whose application has made it a living reality in the field of human rights and fundamental freedoms.

I should like now in the time remaining, after having thus spoken of constitutional progress, to identify a large field of significant constitutional failure. It may be that this will be the field in which the next great constitutional advance will occur, though as of today I see few signs that this will be the case.

I refer to the general field of poverty and the social and public programs which have been set in motion to relieve its distress and to restore its victims. Strikingly, racial and ethnic minorities are principal occupants of this field. True, they do not dwell there alone. There are Caucasians in great numbers who are socially and economically marginal, who are disabled, sick, aged, unskilled, under-skilled, unemployed, bewildered, confused, and lost. But the incidence of poverty and deprivation is higher by far among the racial and ethnic minorities than among the Caucasian majority. Today one-and-a-quarter million Californians are non-white, about eight percent of the total population. Negroes are the largest and fastest-growing segment. They constitute about 6 percent of the population. About 1 percent are Japanese Americans, and another 1 percent are Chinese or Filipino Americans. About 4 percent of the California population is made up of first- or second-generation Mexican-Americans. Compare these data with the fact that roughly 60 percent of the aid-to-needy-children-program recipients in the state of California is made up of Negro and Mexican-Americans, and you will see immediately that there is an intimate relationship between minority status and deprivation.

Historically the meaning and character of welfare programs in California has been profoundly affected by the size and character of racial minorities in the state. Discrimination against them in governmental welfare programs and, even worse, the perversion of welfare Constitutional and statutory concepts and provisions to control and exclude them have had an immeasurable, but a very great, impact on our welfare ideas and institutions. Enslavement and control of the Indian through the use of the traditional indenture system and vagrancy provisions, in California; exclusion and control of the Chinese through public health, welfare, safety, and morals notions and provisions, in California; attacks upon the present-day aid-to-needy-children program, caring for children--a high percentage of whom are of Mexican-American and Negro parentage with different cultural mores and standards of conduct with respect to sex and marriage, in California: all these have further compounded historical confusion with respect to the purposes of welfare. All these have accustomed Californians to associate welfare with punitive, repressive, discriminatory, and exclusionary goals and instruments, as well as, or side-by-side with, relief and rehabilitation.

Whatever might be said about California in other respects, legally it has never been a melting pot. California has not been a rich amalgam of affirmative elements drawn from the widely varied backgrounds and cultures of the people who have composed the population. That is not to say that the Mexican and the Negro, the native Indian and the Oriental have not left their marks upon our California's legal system. That they have done in abundance. But the marks, however, have been the provisions of exclusion, not of incorporation, the legal manifestations of hostility and discrimination, not the test and affirmation of equality and constitutional principle. In short, Anglo-Saxon precepts and institutions in California did not flexibly yield to or selectively adapt the alien customs and ideas which abounded in their presence. Instead they built a series of protective barriers designed to isolate and keep pure the strain within.

The powers of the Constitution which have been invoked historically to deal with racial minorities and with the poor of all races have been the police powers, not the general welfare powers. The police powers are those that deal with maintaining order, preventing vice and crime, securing safety, and protecting health and morals. When problems of poverty are handled under these police powers of the Constitution, poverty comes to be equated with disease, with immorality, and with disorder. Indeed historically these have proven to be inseparable conditions. The constitutional powers of police have generally been called upon to protect one part of the community against another, the comfortable against the needy.

A classic illustration is to be found in the famous, or rather infamous, case of New York vs. Milne, decided by the United States Supreme Court in 1837. "It is as competent and necessary for a state," said the justices in that case, "to provide precautionary measures against (now listen to this) the moral pestilence of paupers and vagabonds (and possibly convicts) as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported or from a ship the crew of which may be laboring under an infectious disease." Accordingly, the court held valid a New York statute designed to exclude the poor and the unwanted brought to New York from other states or foreign countries. The statute was found to be a regulation of police, not of commerce, and therefore within the power of the state.

So by this doctrine the constitutional power of the states to deal with the poor is the police power to preserve public order and to quarantine contagion, to protect morals, and to maintain safety. And poverty entails constitutional, no less than social, degradation. Financial, physical, and mental well-being are tests of entitlement to constitutional rights. Welfare programs founded in these conceptions and sustained by this power focus on problems of behavior, utilize instruments of coercion and restraint, and are oriented towards keeping the peace and maintaining public order. They are designed to safeguard the health, safety, morals, and well-being of the fortunate in the community, rather than directly to improve the lot of the unfortunate.

"Well," you may say, "this case was decided a long time ago." But these ideas survive to plague us today. You've all heard of Newberg. While California yielded the headlines to Newberg, this was not from lack of the same merit. In word and deed California did not lag far behind Newberg. Blood typing and lie detector testing of aid-to-needy-children mothers about the paternity of their offspring; night raiding, with or without probable cause and constitutional safeguards; night-arresting ANC mothers caught with men in the home: these have been discussed in California more than done, but they have been done with alarming frequency.

In one county the full powers of a municipal court judge and a district attorney were combined to institute criminal non-support charges against aid-to-needy-children mothers--not the fathers--but the mothers, to find them guilty or plead them guilty, to place them on probation and threaten them with jail if thereafter they applied for or received aid to needy children, or if they failed to go to work, no matter what their state of health or the need of the children for their full-time attention. In another county aid-to-needy-children mothers found guilty or pleaded guilty to welfare fraud, because payments were made to them when there was an undisclosed man in the home, were put on probation conditioned on their refraining from having relations with men to whom they were not married. One county district attorney urged sterilization of fathers who create multiple families and show deliberate unwillingness to support them, and of ANC mothers who continue to bear illegitimate children. The same authority even thought that it might be intelligent of the legislators to give some thought to euthanasia.

Discontinuance of aid for illegitimates, jailing the mothers or declaring the home unsuitable and removing the children, punitively withholding aid for six months from mothers found cohabiting, sentencing the children of mothers illegally receiving aid to six months without aid, working wayward fathers during the day and locking them up during the night, legalizing voluntary abortions, providing birth control information to relief recipients: all of these are among milder remedies proposed. Fingerprinting and photographing aid applicants of all categories have also been officially sponsored programs.

Let me give one example somewhat more in detail. Effective March 10, 1960, there appeared this language in the ordinance book of one of our California counties. "The Board of Supervisors do ordain as follows: section one, no person shall resort to any office building or to any room, used or occupied, in connection with or under the same management as any cafe, restaurant, soft drink parlor, liquor establishment or similar business; or to any public park; or to any of the buildings therein; or to any vacant lot; or to any room, rooming house, lodging house, residence, apartment house, hotel, house trailer; or to any street or sidewalk for the purpose of having sexual intercourse with a person to whom she or he is not married."[laughter] I guess that wasn't this county since you don't have many sidewalks out here.[more laughter] The attached sanctions were a $500 fine and six months in jail. Now, as you can see, the coverage of this ordinance is comprehensive.[laughter] All conceivable places in towns, city, and park are on the list of possible locations. In fact, so far as I can see, only the fields and irrigation ditches are not included.[prolonged laughter]

Equally engulfing are the elements of the crime. The city fathers were not content with prohibiting the commission of the act itself. Resorting to the specified places for the purpose of committing the act was made the crime. Nor need the purpose be shared by both parties. An intent in the mind of either of them is sufficient. In this county it almost seems a gleam in the eye of youth, summer or winter, or the lightly turning fancy in the spring is no mere topic of song, jest, or poem. It is a heading on the arrest blotter of the district attorney's office.

Almost needless to say, the application of the ordinance was not so sweeping as its geography and psychology: quite the contrary. Its application was selective and discriminatory. Only the aid-to-needy-children mothers and those found with them knew its penal sanctions. The methods of enforcement were those associated with the law of crimes: investigation on nothing more than suspicion or gossip, detectives operating in teams, night raids, simultaneous approaches to the back and the front of the house, guns conspicuously displayed on hips, securing entry, inmates interrogated at length and notes taken, the entire house searched without any particular care to secure permission, men and sometimes aid-to-needy-children mothers hauled off to jail in the middle of the night. All of this in the presence of the children, to many of whom this must have been a most unhappy experience, if not a traumatic one.

All of this too in the presence of the constitutions of state and nation providing for the rights of individuals, the privacy and security of residents and their persons, houses, papers, and effects. All of this in the presence of the Fourteenth Amendment declaring, "No state shall deny to any person within its jurisdiction the equal protection of the laws." Any person? The equal protection of the laws? Well not quite any person, not quite the equal protection of the laws--not just yet anyhow.

Justice Robert Jackson in Edwards vs. California, the 1941 counterpart of the Milne case of a century ago, felt the impulse and found the words to capture the constitutional hopes of the underprivileged. "Does indigence," he asked, "constitute a basis for restricting the freedom of citizens as crime or contagion warrants its restriction? We should say now," he answered and in no uncertain terms, "that a man's mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States. Indigence in itself is neither a source of rights nor a basis for denying them. The mere state of being without funds is a neutral fact constitutionally an irrelevance, like race, creed, or color. Such distinctions," he said, "are a short-sighted blow at the security of property itself. For property can have no more dangerous, even if unwitting, enemy than one who would make its possession a pretext for unequal or exclusive civil rights." What is most striking about this statement is not its eloquence, though that is priceless. What is most striking is that it was a minority opinion. It could not command the acquiescence or support of a majority of the justices of the Supreme Court of the United States.

 

The task that lies ahead is to elevate this doctrine from a minority plea to a majority command, to transform it from a promise into a reality. When in addition it is enshrined in the hearts of Americans as well as in the edicts of their government, then will the constitutional law of the land truly be brought to the people of the nation. Thank you.

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