by Marc Maurer
From the Editor: When we began planning an issue dedicated to Dr. tenBroek on the one-hundredth anniversary of his birth, it seemed obvious that we needed a lead article that would set the tone for the issue and summarize the highpoints of what is known about the man and the movement he founded. In this lead article not only has President Maurer outlined what we know about Dr. tenBroek as the Federation’s founder, philosopher, and primary envoy to the sighted, but he has included a good bit about tenBroek the professor, the scholar, and the shaper of constitutional law. In this piece we also are offered a chance to see our current president as not only a leader of blind people but a man who is intimately familiar with and intrigued by the law and history and with the role both have played in the evolution of our country and her system of justice.
I am proud to observe that our most significant leaders in the Federation assumed their jobs, not because work with the blind was the only thing they believed they could do, but because working for and with the blind was something they considered important enough to compete with other life goals and interests that were contenders for their time. How many books would Dr. tenBroek have written had he not found himself building a fledgling organization of the blind, flying out on Friday evening and returning early Monday morning? What might the name Kenneth Jernigan have meant in American politics had he assented to the request of either the state Republican or Democratic party to run for governor of Iowa, he being identified as the most recognized man in the state? As you read what President Maurer has penned for this special occasion, ask yourself how the initiative, intelligence, and drive we have claimed for ourselves in electing him as president might have been used in appealing to a broader audience as he made his mark upon the world. Here is what he has to say about Dr. tenBroek and his character as it lives on in America today:
Dr. Jacobus tenBroek served as president of the National Federation of the Blind from its founding in 1940 until his resignation from office in 1961 and again from his reelection in 1966 until his death in March of 1968. His energy and spirit focused the yearning of blind people throughout the United States to create a national instrument for change—an organization directed by blind people, made up of blind people, and intended to promote the interests of the blind.
Dr. tenBroek (known as Chick) was our first long-term president and was probably Dr. Kenneth Jernigan’s most significant teacher. Dr. Jernigan was certainly my most significant teacher. This leads me to the reflection that the administration of the Federation led by Dr. tenBroek became the administration led by Dr. Jernigan and later the administration that I have led. In spirit there has been but one administration of the National Federation of the Blind, the one created by our first president and founder.
Why he found it of such abiding interest is not entirely clear, but Dr. tenBroek wrote and spoke of equality during all of his adult life. Perhaps the most important brief document in the history of law is the Constitution of the United States. It is a deceptively simple document, which incorporates the principles of the Declaration of Independence, the Articles of Confederation, and the Northwest Ordinance. Liberty (or freedom) and property are important concepts in the history of the Constitution, but Dr. tenBroek thought that equality was more important than all others. Furthermore, he deliberately set his hand to persuading the legal community that his formulation of the significance of this concept could not be ignored.
Dr. tenBroek, who was born in 1911, grew to manhood in a society in which segregation between the races was not merely tolerated but required. Although slavery had been abolished by the Emancipation Proclamation of 1863 and the Thirteenth Amendment adopted in 1865, equality of treatment for racial minorities had never become a part of our society. In 1896 the Supreme Court declared that programs which were “separate but equal” met legal standards for treating racial minorities. But somehow the separate programs for minority groups were never quite as equal as those for the white majority. When Dr. tenBroek began to write about the Constitution of the United States in the 1930s, his focus was on the subject of equality.
The Fourteenth Amendment to the Constitution became a part of the document in 1868. This amendment required the states to afford individuals the due process of law and prohibited a state from withholding the equal protection of the laws. In interpreting these provisions of the Fourteenth Amendment, the Supreme Court focused almost entirely upon the Due Process Clause. Equal protection was said to be the argument for lawyers who had no other legal recourse and were virtually certain to lose in the rough and tumble of legal debate. The meaning of the Equal Protection Clause was being interpreted by the court in the light of debates on the amendment in Congress in 1865. Dr. tenBroek said that these debates had given limited scope to the understanding of equal protection principles. He said that a much more vital comprehension of the meaning of these words would be gathered from their use by abolitionist writers and thinkers prior to the beginning of the Civil War—those who had argued, thought, debated, and written in the decades preceding that mighty struggle, which began in 1861. He delineated his comprehension of equal protection in a book entitled The Antislavery Origins of the Fourteenth Amendment, which appeared in 1951. This publication, which has been cited in courts throughout the United States, changed the thought process of judges about the nature of equality for racial, ethnic, and other minorities in the United States.
The method of approach adopted by Dr. tenBroek in interpreting the Fourteenth Amendment was adopted by the Supreme Court in the famous case of Brown vs. Board of Education in 1954. Some judicial thinkers have argued that this is among the most important decisions the Supreme Court has ever made. This case, which declared that separate schools for white and black children violated the Equal Protection Clause of the Fourteenth Amendment, is in stark contrast with the Dred Scott Decision made almost a hundred years earlier, in which the Supreme Court said that slaves, being property, could not expect to be free simply because they had moved to free states. The division of the United States between free and slave states could no longer exist, the court had ruled. This decision is argued by many to be the worst the Supreme Court has ever made. Some people believe it drove the United States into the Civil War.
In 1954 Dr. tenBroek completed another book entitled Prejudice, War and the Constitution. During World War Two, Japanese citizens and residents of the United States (especially those in California) had been rounded up and placed in detention camps. When the question of the constitutionality of this detention came to the United States Supreme Court in 1944, the justices decided that the action had been necessary as an extension of war powers for the protection of the United States. In his book Dr. tenBroek argued that the detention was a matter of prejudice, which could not stand constitutional scrutiny. The persuasiveness of his arguments gradually gained adherents in later years, and in 1988 Congress adopted an act to offer reparations to the detainees. Dr. tenBroek’s book, which won the Woodrow Wilson Foundation Award, is generally credited with changing the judicial thinking.
Then, there were Dr. tenBroek’s ordinary, everyday work tasks. He taught first at the University of Chicago Law School and then at the University of California at Berkeley. His first job, tutor and lecturer at the University of Chicago Law School, came as the result of a compromise. Dr. tenBroek had earned law degrees from the University of California and Harvard. He is reputed to have been one of the two top graduates at the law school of the University of California. However, he was totally blind. The University of Chicago Law School agreed to employ him only if he would accept the job for half the customary pay. In 1942 he accepted an appointment at the University of California, where he remained for the next quarter century.
I joined the Federation in 1969. Dr. tenBroek had died the year before, so I never met the man, but I have met his spirit, and I have been instructed by it. Part of my introduction to the Federation was the reading of two of Dr. tenBroek’s magnificent banquet addresses, “Within the Grace of God” (1956) and “Cross of Blindness”(1957). The oratory was thought-provoking, funny, moving, and demanding of thought. Dr. tenBroek compared the American Association of Workers for the Blind (the predecessor of the Association for the Education and Rehabilitation of the Blind and Visually Impaired) to a hypothetical organization entitled the American Association for Workers for the Bald. The comparison was strikingly apt for conditions involving the blind, and the humor was rich. At the end of the speech Dr. tenBroek incorporated a thought denominating philosophical comprehension and humility. He said:
In the Sixteenth Century, John Bradford made a famous remark which has ever since been held up to us as a model of Christian humility and correct charity and which you saw reflected in the agency quotations I presented. Seeing a beggar in his rags creeping along a wall through a flash of lightning in a stormy night, Bradford said: "But for the Grace of God, there go I." Compassion was shown; pity was shown; charity was shown; humility was shown; there was even an acknowledgement that the relative positions of the two could and might have been switched. Yet despite the compassion, despite the pity, despite the charity, despite the humility, how insufferably arrogant! There was still an unbridgeable gulf between Bradford and the beggar. They were not one but two. Whatever might have been, Bradford thought himself Bradford and the beggar a beggar—one high, the other low; one wise, the other misguided; one strong, the other weak; one virtuous, the other depraved.
We do not and cannot take the Bradford approach. It is not just that beggary is the badge of our past and is still all too often the present symbol of social attitudes towards us; although that is at least part of it. But in the broader sense we are that beggar and he is each of us. We are made in the same image and out of the same ingredients. We have the same weaknesses and strengths, the same feelings, emotions, and drives; and we are the product of the same social, economic, and other environmental forces. How much more consonant with the facts of individual and social life, how much more a part of a true humanity, to say instead: "There, within the Grace of God, do go I."
Such sentiments define the character of Dr. tenBroek for me. They have helped to shape the contemplation of character that has been a part of what I have tried to do.
In 1957 Dr. tenBroek listed in his banquet address a number of discriminations that had occurred against blind individuals. One description in the list declared, “A blind man who sat down at a gambling table in Reno, where such things are legal, was denied an opportunity to play—not on the ground that he didn't know the rules of the game; not on the ground that he might cheat the dealer or the other players; not on the ground that he didn't have any money to lose—but on the ground that he was blind.” Sometime after I read this speech, Dr. Jernigan asked me how I felt about it. I remembered the incident about the blind man at the gambling table, and I expressed amazement that the people running the casino would refuse a patron who possessed the means to participate. Dr. Jernigan indicated that he himself was the person who had faced the discrimination.
Dr. Floyd Matson, who had become Dr. tenBroek’s student in 1947, indicated that Dr. tenBroek was a very aggressive instructor who did not suffer fools gladly. Dr. Jernigan said that Dr. tenBroek was both a stern taskmaster and one of the most generous people he had ever met. His willingness to explore new ideas intrigued Dr. Jernigan—and inspired him to seek opportunities and methods of achieving them that were new and untried.
The challenge devised by Dr. tenBroek for us remains as vital today as it was when he first enunciated it. We must seek equality, and we must demand of ourselves the qualities that make us deserve the equality we seek. This is the standard established by Dr. tenBroek, and this is the essential character of freedom.