Speech Presented at 2010 Annual Meeting of the West Virginia State Bar in May 2010
By: Alvin L. Emch
((This is part of 200th anniversary blog series. This is a look back at speech given in 2010 on Civil Rights by our own A.L. Emch))
Political philosopher Edmund Burke once opined that “the legal profession renders its practitioners acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources. No other profession is more closely connected with actual life than the law. It concerns the highest of all temporal interests of man – property, reputation, the peace of all families, the arbitrations and peace of nations, liberty, life even, and the very foundations of society.”
It seems today that those in the legal profession are much more likely to be maligned than praised. Our professional organizations, including this one, struggle constantly to define the true meaning of “professionalism” – even more so with how to instill it, nurture it, preserve it, promote it, and make the public understand and believe in it.
Most of us will never reach the heights that those we will talk about today achieved. But we can, and must, all aspire. Even when we are doing the most ordinary work imaginable, we can do it knowing that one small part still touches the same tenets that the greatest of our kind touched and honored. We may in the grand scheme do mostly small things, but we can do those small things grandly.
I love history. History gives perspective, context, meaning, and appreciation to today. History is a recognition and remembrance of the threads that link us, indeed bind us all together back through the ages. Bindings that, explored and understood and repeated, are strengthened; bindings, then, that can never be broken.
When we look at history as we usually do, flying at about 40,000 feet, the details are blurred and we see clearly only the large themes and players; the network of intricate connections and relationships that support the whole are indistinguishable from our lofty height. Thus, we lump Washington, Hamilton, Jefferson, Adams, and John Marshall among our “founding fathers,” viewing them as having come seamlessly together like a band of brothers marching forward arm in arm to form our great nation. In this, we fail to see the extreme tension between these great men, in some instances even their hatred of each other; certainly we miss the tremendous disagreement on grand policies and tiny details that energized their efforts. We look back from our position of security, little appreciating the enormous uncertainty of this great experiment, fraught with perils from within and without, so fragile and so vulnerable for so long. We stand on firm, fertile ground and remain largely heedless of those who through contention, controversy, and cooperation created that ground by draining the swamp, killing the snakes, and removing the boulders that would have otherwise impeded our building and cultivation.
It is so exciting to descend from the heights and view from a lower altitude the threads that bind together what from on high we thought were unconnected people and events. From on high we see the ends, the accomplishments, the culmination, the whole, but do not see and therefore do not appreciate the forces, the experiences, the multitude of overlapping brush strokes that together make up the beautiful finished painting. So too with the individuals who played upon the canvas. But viewed up close and personal, the connections between the past and the present are vivid and undeniable.
From the beginning, our Constitution, our form of government, that grand scheme that weaved together in one constitutional set of clothes the concepts of individual freedom, individual rights, the rule of the majority, the protection of the minority, the responsibilities and limitations of government, the benefits as well as the duties and obligations of citizenship—all of this was too big for us. Or perhaps more accurately, we were too small for it. We had to grow into it. The recent election of President Barack Hussein Obama is heralded far and wide as an indication that perhaps, finally, at long last we have. The clothes of freedom and tolerance and democracy finally look like they fit. Our country, most particularly its leaders down through history, and very specifically the great lawyers who have guided and shaped much of that history, have struggled, learned, and grown. Nowhere is this struggle and this growth more evident than in the realm of civil rights and civil liberties. We should all take enormous pride – yes pride – in the strength, yet flexibility, of the fabric of liberty that has emerged from the crucible of our history.
The greatest tension at the formation of our great nation and the core issue that has overshadowed and defined our history since then more than any other, is the overarching question of the respective roles of our one national and many state governments. Upon this field of states the Constitution of the United States of America was planted. The very first issues under it related to whether that Constitution was indeed the supreme law of the land. From that premise sprang all of the great debates about foreign and domestic policy and how to define the roles of the state and federal governments and their relationships to each other that have predominated and perhaps plagued us down through the years. The centerpiece of controversy, and the flash point for our national pain, anger, division, and union through our entire history, has been the question of slavery and the civil rights of African-Americans. Other “states rights” issues have certainly held center stage at times and they have been enormously important, but only the institution of slavery, its perpetuation or demise and the swirling eddies of prejudice and discrimination and indignation and suffering and glory and triumph that circled around it, has continuously and overwhelmingly fueled and informed and defined our struggles and our growth as a nation. Would we be what we claim to be today had we not gone through that long fire? Who can know? History is what it is, and all that we can say today as we look back over ours is that “this nation of the people, by the people, for the people” has not perished – it remains strong and is better now than it ever was.
I invite you to take a brisk walk with me down through the history of that monumental struggle for the civil rights of African Americans, pausing along the path to look more closely at a few of the great persons, momentous events, and historic decisions that have brought us to where we are and to realize that we are closely connected to all of them. We are because they were.
2009 was an historic and remarkable year for many reasons, two of which are important to our tour. First, it was the 200th anniversary of the birth of Abraham Lincoln. Second, and of course connected, it was the year of the inauguration of the first African-American ever to be elected President of the United States of America. Nearly 150 years from the Emancipation Proclamation. Whatever may be your politics, the distances between the origins of our country and Abraham Lincoln and between Abraham Lincoln and the inauguration of Barack Obama are great indeed, and represent a journey of which all of us can be justly proud. Let’s take a closer look at it.
Before we reach Andrew Jackson, we must set the stage upon which he played. So we begin our odyssey, because we must, with four towering figures from our origins: Washington, Adams, Jefferson, and John Marshall (and we’ll toss in the talented but controversial Aaron Burr and the inimitable Alexander Hamilton for spice).
Washington, of course, was the central figure in the birth of our nation, commanding the respect, love, and admiration of the entire citizenry, including those who were themselves rivals and who might otherwise have been his rivals. For nearly twenty-five years at our beginning Washington wrapped his cloak around the whole country, including all of its major leaders, keeping them warm and secure during our formative years.
John Marshall served with Washington during the Revolutionary War, including a time as one of his aides. He was with Washington at Valley Forge, and the two were close throughout the remainder of Washington’s life. Washington offered John Marshall the posts of Attorney General and Minister to France during his administrations, both of which the future chief justice politely refused.
John Adams and Thomas Jefferson (together with Benjamin Franklin, the authors of the Declaration of Independence) were united while birthing the nation, but were politically on opposite ends of the spectrum. Adams, the Federalist believing in a strong and supreme national government, and Jefferson, the Republican, who believed in the rights and sanctity of the individual states. Adams and Jefferson, together in the infancy of our nation, then pulled harshly apart by political differences, were again united in their elder years through a camaraderie of correspondence (joined by Abigail Adams), both dying within hours of each other on the 4th of July in 1826, the 50th anniversary of the signing of the Declaration of Independence. John Adams, who persuaded John Marshall to go to France as one of the envoys from the United States of America seeking to resolve without bloodshed our differences with that nation, which resulted in the “XYZ affair” with Marshall leading his other two envoys in their refusal to pay French Minister Talleyrand the bribe he demanded, making Marshall a national hero upon his return; Jefferson, the great lover of France and the French Revolution and states’ rights, later to be very much in conflict with Marshall as he led the Supreme Court of the United States and authored the great opinions that defined the nation all of them had created.
Marshall died on 6 July 1835 in Philadelphia while there seeking medical treatment. As related by his recent biographer, Professor Jean Edward Smith of Marshall University:
On July 8, 1835, as Marshall’s funeral cortege made its way through the city, the muffled bells of Philadelphia reverberated their mournful message. As fate would have it, July 8 marked the anniversary of that date in 1776 when Philadelphia’s bells had first rung out to celebrate American independence. And then, on that day in 1835, again as if by fate, the greatest of the bells, the Liberty Bell in Independence Hall, went silent. It had cracked while tolling the death of the great chief justice. It was never to ring again.
Coincidence? Providence? Connection?
I now focus specifically upon the person who anchors the web of civil rights events and decisions which the remainder of this talk will illuminate: John Marshall. I have been both intrigued and dismayed in recent years by the number of our citizens, and even of our lawyers, who are unfamiliar with Chief Justice John Marshall. Often, viewed from 40,000 feet, incorrectly identified as the first Chief Justice of the United States, he was actually the fourth. Marshall County, West Virginia, and John Marshall High School in Moundsville are named for him. Marshall Academy was founded in 1837, two years after his death, and named in his honor, becoming Marshall University in 1961.
Before he was Chief Justice, John Marshall was a soldier, lawyer, diplomat, state legislator, congressman, and cabinet member. As noted earlier, Marshall served under General Washington during the Revolutionary War, forging a life-long friendship and admiration between the two. Marshall wrote the first biography of Washington. Marshall was also the fourth United States Secretary of State, and holds the unique distinction of having served as Secretary of State at the same time that he was Chief Justice—this was owing to the March date when presidents were inaugurated back in those days and his confirmation as Chief Justice approximately one month before—but incoming President Jefferson asked Marshall to continue serving as Secretary of State until Jefferson was sworn in as President.
Marshall happened to be in the midst of his one term as a Congressman when news reached Philadelphia of the death of George Washington. Marshall was asked to move for immediate adjournment, which he did, and the next day when the House reconvened he, by tradition, still had the floor and therefore gave the Congressional eulogy for Washington. He concluded with the ever-after famous refrain: “First in war, First in peace, First in the hearts of his countrymen.” These words have always been associated with George Washington and usually attributed to Marshall, who spoke them. But the phrase was actually written by Light Horse Henry Lee, who had given it to Marshall the night before. Lee had anticipated speaking, but recognized that the rules of the House deferred to Marshall, who had the floor. Marshall always did his best to see that Lee was credited with these famous words.
It cannot be doubted that his service in the Revolutionary War greatly influenced the character of John Marshall, as it did all the others who served. Oddly enough, it perhaps is most expressed in the humanity of his writing. As with many of those who have since led this country, the perils of the war imbued deep within Marshall a respect for the bravery and honor and dignity that defines the conduct of friend and foe alike, and especially did in those times of musket and bayonet when one literally “saw the whites of the enemy’s eyes” in battle. One of those wartime events in Marshall’s service worth description here is the Battle of Great Bridge. Lieutenant John Marshall was at the time of that Battle nineteen years old. As described by biographer Smith:
Captain Fordyce, at the head of the British column, led his men directly toward the breastworks. When the Americans opened fire, Fordyce went down with a bullet in the knee. He took a handkerchief from his wrist, wrapped it around the wound, stood up, and resumed his place at the head of his troops. Wounded repeatedly, Fordyce continued forward until he fell dead less than a dozen paces from the American position, his body riddled with fourteen bullet wounds. When he went down, the assault collapsed and the remaining troops broke and retreated.
A Virginian said, “I then saw the horrors of war in perfection, worse than can be imagined; 10 and 12 bullets thro’ many; limbs broken in two or three places; brains turned out. Good God, what a sight.” Marshall wrote, “Every grenadier is said to have been killed or wounded in this ill-judged attack, while the Americans did not lose a single man.”
Captain Fordyce and the dead grenadiers were buried with full military honors, a deliberate effort, of which Marshall strongly approved, to recognize the dignity of brave men who had died in battle.
Bravery, courage, and honor in the face of grave danger; forcefulness; perseverance; respect for your adversaries – all lessons that John Marshall carried throughout his long life and wrung out into his opinions. During his nearly thirty-five years as Chief Justice, the United States Supreme Court issued approximately 1100 decisions, of which Marshall wrote 500. Most were unanimous. Marshall himself dissented only eight times. His ability to persuade, to build consensus, to forge agreement—to lead—is unequaled on the Court. Every decision since is rooted in the ground prepared for planting by John Marshall.
How many of you have heard of William Wirt? He was one of the prosecutors (the youngest, at 35) at Aaron Burr’s treason trial in 1807 with Chief Justice John Marshall presiding. One place in the country is named in honor of William Wirt: Wirt County, West Virginia. Wirt was a very prominent attorney and recognized as among the greatest advocates of his time. He argued more cases before the United States Supreme Court than any other lawyer in our history – the number is most often set at about 170, including such landmarks as the Dartmouth College case (contract) McCulloch v. Maryland (taxing the United States Bank), Cohens v. Virginia (lottery tickets sale), Gibbons v. Ogden (steamboat monopoly), the Antelope, and, most notably for our purposes, Cherokee Nation v. Georgia decided in 1831 and Worchester v. Georgia decided in 1832. More about these last two in a moment. First, some more about Wirt.
William Wirt was the ninth United States Attorney General, serving from 1817 to 1829. As such, he was also the longest serving attorney general in our history. During those years he shaped that office by enforcing the Judiciary Act of 1789’s admonition and establishing that his opinions as attorney general could only be sought by the president or the heads of the executive departments, not by all of the individual members of Congress, as had been the previous practice. He also obtained funding, got an office and one staffer, and established the system and precedent of retaining copies of his opinions, therefore making a written record that could be handed down and relied upon by his successors.
Wirt’s legal career culminated with his representation of the Cherokee Nation in the first great civil rights case to be decided by our Supreme Court, Worchester v. Georgia. Stated bluntly, the question presented in Worchester and in its predecessor decided the year before, Cherokee Nation v. Georgia, was whether the Cherokee Nation was subject to the laws of the states in which it existed or, more directly, whether the treaties made by the United States with the Cherokees would be honored and upheld. The whole tension between Georgia and the Cherokee Nation had been brought to a head by the discovery of gold near Dahlonega, Georgia, in 1829, which resulted in gold prospectors trespassing on Cherokee lands. Georgia wanted that land, but the treaties between the United States and the Cherokee Nation gave it to the latter.
Legislation was soon passed that provided for the “relocation” of the eastern Indians. That legislation, formally entitled “The Bill for an Exchange of Lands with the Indians Residing in Any of the States or Territories, and for Their Removal West of the Mississippi,” was reported out of the Indian Affairs Committee of the Senate on Monday, February 22, 1830, and out of the House Committee two days later. An essential point of contention was whether the Jackson administration could simply ignore previous treaties in order to remove the Indians. Jackson believed the treaties irrelevant, but the Indians did not, and neither did the Indians’ defenders in Congress.
Signed on Wednesday, September 27, 1830, the Treaty of Dancing Rabbit Creek ratified the exchange of five million Choctaw acres in Mississippi for thirteen million acres west of Arkansas. It was the first removal under the 1830 law.
Alexis de Tocqueville, who was in Memphis in the winter of 1831 to record the terrors of the Choctaws’ journey―terrors that became the rule, not the exception, as removals went forward. Watching the Choctaws cross the Mississippi, de Tocqueville wrote: “It was then in the depths of winter, and that year the cold was exceptionally severe; the snow was hard on the ground, and huge masses of ice drifted on the river. The Indians brought their families with them; there were among them the wounded, the sick, newborn babies, and old men on the point of death. They had neither tents nor wagons, but only some provisions and weapons. I saw them embark to cross the great river, and the sight will never fade from my memory. Neither sob nor complaint rose from that silent assembly. Their afflictions were of long standing, and they felt them to be irremediable.”
Now back to Georgia, the Cherokees, and the Supreme Court. Georgia had already demonstrated its defiance of the Supreme Court by hanging an Indian convicted of murder despite an order form the Court not to do so. This was the stage for Wirt’s arguments in Cherokee Nation and Worcester.
Remember that in Wirt’s day, cases were presented to the Supreme Court through oral argument; written legal briefs were secondary, if submitted at all, and they generally were not. The Supreme Court placed no time limit on oral arguments until 1849, when it restricted them to two hours per side and mandated that each side present a written abstract of points and authorities beforehand. It was not until 1884 that the Court required written briefs to include actual argument. In Wirt’s time, it was not unusual to talk for hours at a stretch, and many “arguments” took several days. Wirt’s argument on behalf of the Cherokees in Cherokee Nation v. Georgia is generally thought to be his finest, and perhaps one of the most moving ever delivered to our Supreme Court of the United States. One observer who was present described it as “the most able pleader of the justest cause, before the highest tribunal on earth.” Quite a challenge, huh? The jurisdiction of the Supreme Court of the United States was in question in that first case, and it in fact declined jurisdiction (rightly, as explained in Marshall’s well-reasoned opinion), but Wirt in his argument took head-on the issue that was being bandied about at the time: that being whether, if the Supreme Court did take jurisdiction and rule, would its order be enforced? The Supreme Court had no army and no guns – it had only its words and orders. Would they, could they, be enough? Wirt’s comments on that issue in his oral argument were prescient:
Shall we be asked (the question has been asked elsewhere) how this court will enforce its injunction, in case it shall be awarded?
…
In a land of laws, the presumption is that the decisions of courts will be respected; and, in case they should not, it is a poor government indeed, in which there does not exist power to enforce respect.
…
But, if we have a government at all, there is no difficulty in either case. In pronouncing your decree you will have declared the law; and it is part of the sworn duty of the President of the United States to “take care that the laws be faithfully executed.”
. . .
He is authorized to call out the military power of the country to enforce the execution of the laws. It is your function to say what the law is. It is his to cause it to be executed. If he refused to perform his duty, the Constitution has provided a remedy.
Wirt argued for over three hours.
As mentioned, the Supreme Court declined jurisdiction in Cherokee Nation, but Marshall, and the Court, and the crowd, understood—and they wept at Wirt’s words. The impassioned arguments that Wirt had made in that case bore fruit the following year in Worchester v. Georgia, when the Court had jurisdiction. That decision, also written by Chief Justice John Marshall for the Court with only Justice Baldwin in dissent (on a technical ground), made clear the sanctity of the Cherokee Nation and its right to have and to control its lands in the State of Georgia and elsewhere. Marshall wrote:
The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.
But guess what? It was 1832, and Andrew Jackson, the great general of the War of 1812, and also a lawyer, was president. Jackson is uniformly ranked among our great or near great presidents, but this was not his finest hour. It is famously said that upon the issuance of Marshall’s opinion in Worchester v. Georgia, Jackson remarked: “Justice Marshall has made his decision, now let him enforce it!” It is by no means certain that Jackson said those words, but they reflect in effect what he did, or more correctly, did not do. The decision of the Supreme Court of the United States was not honored by the State of Georgia, nor enforced by the United States government. To the contrary, the “trail of tears” that traced the forced eviction of the Cherokees from Georgia and their migration to reservations in the State of Oklahoma was what ensued. The Cherokees were removed by Federal troops from Georgia to Oklahoma in 1838, and approximately 4,000 of the 15,000 who made the trip died en route. In the Cherokee language, the event is called Nunna Daul Lsunyi (“the trail where they cried”). To this day, the name of Andrew Jackson is reviled among the descendants of the Cherokee and other Indian tribes in this country. A Phyrric civil rights victory for them, indeed.
But it was not just the Cherokee who cried. Wirt’s worst fears as implied in his eloquent argument in Cherokee Nation had been realized. He had argued that it was “part of the sworn duty of the President of the United States to ‘take care that the laws be faithfully executed.’ . . . It is your function to say what the law is. It is his to cause it to be executed.” But as he feared, neither Jackson nor the State of Georgia complied with the Supreme Court’s ruling.
Fast forward to 1954 and the landmark decision in Brown v. Board of Education and its companion cases, in which the doctrine of “separate but equal” that had been legalized by Plessy v. Ferguson in 1896 and the law of the land thereafter was declared to be unconstitutional. After Brown, as with Jackson and Georgia in 1832, many states defied the Supreme Court’s declaration of what the law was. But what a difference a hundred plus years makes. In 1957 the governor of Arkansas called out its national guard to preclude Negro children from entering its all-white public schools. In response, President Dwight David Eisenhower sent the 101st Airborne Division of the United States Army to Little Rock, federalized the Arkansas National Guard, and enforced the decision of the United States Supreme Court with all the power of his office and as Commander in Chief. In doing so, he fulfilled the duties of the President of the United States so succinctly and eloquently described by Wirt. Wirt had argued that the President “is authorized to call out the military power of the country to enforce the execution of the laws.” President Eisenhower did just that.
Another famous West Virginian (we can adopt William Wirt as our own, I think – we, after all, have his county) figured prominently in the argument in Brown v. Board of Education. John W. Davis of Clarksburg, WV, argued for the State of South Carolina in a companion case. Understand that taking this case does not indicate, as has sometimes been suggested, that John W. Davis was a racist, it indicates that he was a lawyer. Presenting the merits of a position is what we do, and our system depends on us doing it well on both sides of every cause. Davis is probably second only to Wirt in the number of cases that he presented before the United States Supreme Court in his long and distinguished career. Davis argued 140 cases before the Court; he was also a member of the House of Representatives, Ambassador to the United Kingdom, the fourteenth United States Solicitor General, and the only West Virginian ever to run for president (in 1924) (unless you count Wirt, who sort of ran against Jackson for his second term).
One of the lawyers opposing John W. Davis in Brown was, of course, Thurgood Marshall. His given name, by the way, was “Thoroughgood,” but he decided to shorten it in second grade because he did not like to have to spell it all out. Thurgood Marshall was later appointed the first African-American Justice of the Supreme Court of the United States by President Lyndon Johnson in 1963. He thus shares an “historic first” connection stretching forward to President Obama and backward to Lincoln, the final connecting link of which I will describe later.
Andrew Jackson, who had defied the opinion written by John Marshall in the case of Worchester v. Georgia argued by William Wirt, appointed Roger B. Taney as the Fifth Chief Justice of the United States Supreme Court after the death of John Marshall. Taney was the eleventh United States Attorney General under Jackson from 1831 to 1833, holding that office during the time that Cherokee Nation v. Georgia and Worchester v. Georgia were decided. He thereafter was the twelfth United States Secretary of the Treasury until his appointment by Jackson as Chief Justice. He was the first Roman Catholic to be Chief Justice. Taney is described as “a Southerner who loved his country over his state; a believer in states’ rights yet a firm believer in the union; a slaveholder who regretted the institution and manumitted his slaves.” Unfortunately, Chief Justice Taney is reviled rather that revered because of the decision rendered by the Court in the case of Dred Scott v. Sandford, in which the United States Supreme Court held that Congress had no authority to restrict the spread of slavery into federal territories, and that such previous attempts to do so as the 1820 Missouri Compromise, the Compromise of 1850, and the Kansas-Nebraska Act were unconstitutional. Taney’s sweeping, and often intemperate, language was seized upon and criticized vehemently throughout the country. The Dred Scott decision is generally cited as one of the immediately precipitating causes of the civil war. Though it has been much maligned, it has never been formally reversed.
As is often the case with history viewed at low altitude, however, a closer look does reveal that there is much more to the story. To begin with, Taney’s opinion for the majority, which occupies 61 pages out of the whole decision’s 241 (every Justice wrote), is a detailed and fairly accurate recitation of the social and legal history related to the United States’ (and other nations’) treatment of the Negro race constitutionally and otherwise up to that time—it is clearly not a tour de force of the personal views of Roger Brooke Taney. Nevertheless, the Dred Scott decision was universally viewed and historically reported as holding that African Americans could not be citizens of any state and, in Taney’s words quoted out of context, “had no rights which the white man was bound to respect.”
Chief Justice Taney twice gave the oath of office to President Lincoln. President Lincoln, among other great accomplishments including issuing the Emancipation Proclamation, created the great State of West Virginia on June 20, 1863. Lincoln County is named after him. Many over the years have suggested that our state’s name be changed to Lincoln. When Chief Justice Taney died on October 12, 1864, at the age of 87, Lincoln named his successor.
During the campaign and after his election, President Obama referred often to President Lincoln—nothing too unusual there, but noteworthy under the circumstances of Mr. Obama’s race and with 2009 being the 200th anniversary of President Lincoln’s birth. President Obama in forming his cabinet and making other appointments discussed his intention to and the importance of bringing into his administration a “team of rivals” because the problems that the country faced demanded the best and most qualified minds that could be brought to bear upon them and no one should be excluded because he or she was a rival to him for president or from the rival party. After his election in 1860, Lincoln had taken the unprecedented step of bringing his major rivals for the presidency into his cabinet. He appointed William Henry Seward as Secretary of State, Edward Bates as Attorney General, and Salmon Portland Chase as Secretary of the Treasury. All these men were his rivals for the Republican nomination and all, frankly, thought little of the new president when they joined his cabinet. Chase, in particular, was a strong abolitionist who always pushed as hard as he could for the abolition of slavery as the number one goal—preserving the Union was secondary.
So, having already appointed four justices to the United States Supreme Court, in late 1864 Lincoln appointed his then former Secretary of the Treasury, Salmon Portland Chase, as the Sixth Chief Justice. Chase, while practicing as a lawyer, had often defended escaped slaves who were seized in Ohio under the fugitive slave law of 1793 for which efforts he was dubbed “the attorney general for fugitive slaves.” He unsuccessfully argued the famous Jones v. Van Zandt case before the United States Supreme Court and its then Chief Justice, Roger Brooke Taney, who he succeeded in that position.
Chase became Chief Justice on 15 December 1864. In one of his first acts, on 31 December 1864, Chase admitted John Swett Rock to the bar of the Supreme Court of the United States. John Rock was a teacher, a dentist, and a physician. He was also a passionate abolitionist and civil rights leader who held a strong belief in the dignity and rights of all Americans. Born in New Jersey, a graduate of the American Medical College in Philadelphia, in 1860 Rock gave up his medical and dental practices and began to study law, gaining admittance to the Massachusetts Bar in 1861. John Swett Rock was also black. He was a brilliant speaker and is credited with coining the phrase “black is beautiful” in one of his speeches.
Chief Justice Salmon Portland Chase, appointed by Abraham Lincoln, thus admitted the first African-American lawyer to practice before the United States Supreme Court in 1864; Thurgood Marshall, who successfully argued the case of Brown v. Board of Education of Topeka against John W. Davis, was appointed by President Lyndon Johnson as the first African-American Justice of the United States Supreme Court in 1963; Barack Obama, in 2009, the 200th anniversary of Lincoln’s birth, became the first African-American President of the United States of America. Three historic firsts, all connected by the tapistry that is the backdrop of our civil rights history.
Chief Justice Salmon Portland Chase was trained in the law by none other than William Wirt. William Wirt was Attorney General under both James Monroe and John Quincy Adams. In that capacity, he was asked to give and presented the Congressional eulogy upon the almost simultaneous deaths of President Jefferson and President Adams, father of President John Quincy Adams. Upon Wirt’s death in 1834, former president, now Congressman John Quincy Adams eulogized William Wirt as follows:
If a mind stored with all the learning appropriate to the profession of the law, and decorated with all the elegance of classical literature—if a spirit imbued with the sensibilities of a lofty patriotism, and chastened by the mediations of a profound philosophy—if a brilliant imagination, a discerning intellect, a sound judgment, an indefatigable capacity, and vigorous energy of application, vivified with an ease and rapidity of elocution, copious without redundance and select without affectation—if all these, united with a sportive vein of humor, an inoffensive temper, and an angelic purity of heart—if all these in their combination are the qualities suitable for an Attorney General of the United States—in him they were all eminently combined.
John Marshall eulogized Washington before Congress and Wirt before the Supreme Court; Wirt eulogized John Adams and Thomas Jefferson before Congress; John Adam’s son John Quincy eulogized Wirt before Congress. Let’s put John Quincy more firmly into our civil rights odyssey.
John Quincy Adams was perhaps the most qualified and intelligent person ever to hold the office of president. In fact, he probably was too smart for the job—certainly too stubborn. After losing the presidency to Andrew Jackson—remember him?—John Quincy spent his final seventeen years of life in the House of Representatives, and claimed no special privileges whatsoever by virtue of having once been the Chief Executive of the country. John Quincy Adams is the only President to have served in Congress after having been President.
John Quincy, like his father, was strongly against the institution of slavery. On 18 May 1836, the House of Representatives took up a resolution stipulating that “all petitions … relating in any way … to the subject of slavery, or the abolition of slavery, shall, without being either printed or referred, be laid upon the table, and that no further action whatever shall be had thereon.” When the roll was called on the resolution and Adams’ name came up, he rose and shouted above the cries of outrage from his colleagues: “I hold the resolution to be a direct violation of the Constitution of the United States, the rules of the House, and the rights of my constituents.” The resolution passed, and for the next eight years Adams fought to have what became known as the “gag rule” repealed. At the opening session of each new Congress he promptly offered a motion to rescind the gag rule and was promptly voted, and often shouted, down. But each time he gained a few more votes. On 3 December 1844, at long last, his motion to rescind carried. In 1846, he suffered a paralytic stroke, but recovered the full use of his body and returned to Congress the following year. When he walked into the House, slightly tottering, on the morning of 13 February 1847, everyone rose spontaneously and applauded, and two Congressmen conducted him to his seat. A year later he collapsed at his desk in the House. A plaque in the floor of our Capitol marks the spot upon which it sat. He was carried to the Speakers’ room where he died two days later. Exclaimed Thomas Hart Benton: “Where could death have found him but at the post of duty?”
After the Civil War came Reconstruction, passage of the “Reconstruction Amendments”—the 13th, 14th, and 15th Amendments to the Constitution — and the zealous oppression of the Southern States by Congress culminating in the Civil Rights Act of 1875, followed by the so-called Compromise of 1877. Thereafter, with the restrictive pressure of the Federal government relaxed, the Southern States began passing “Jim Crow” laws establishing segregation and other discriminations against Negroes. This led to the next milestone decisions in our country’s civil rights’ odyssey, the Civil Rights Cases of 1883 and Plessy v. Ferguson, with Justice John Marshall Harlan (“the Great Dissenter”) the lone dissenter in both. Justice Harlan’s dissent in the Civil Rights Cases bears a noteworthy connection to the Dred Scott decision.
The Civil Rights Cases were a group of five similar cases consolidated to pose one issue. In the decision on those cases, the Supreme Court essentially held that the Civil Rights Act of 1875, which provided that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of certitude,” was unconstitutional. Justice Harlan was incensed at the majority decision—actually holding that “private” acts of racial segregation did not violate the 13th or 14th Amendments and were protected by Federal Law—but, as the story is told by his wife, Malvina, he had writers block and was unable to begin to draft the stinging dissent that he so wanted to pen. Seeking to provide inspiration for him, Malvina went to the archives of the Supreme Court and retrieved the pen and inkwell that Roger Brooke Taney had used to write the Dred Scott decision. Contemplating that pen and inkwell, touching it, wielding it, gave Justice Harlan the inspiration that he needed to use it to write his dissent.
Justice Harlan again found himself the lone dissenter from the Court’s decision in Plessy v. Ferguson in 1896 holding the doctrine of “separate but equal.” in his famous, now vindicated dissent, Harlan not only spoke what the law should and would become with Brown after 60 more years of struggle and torment — he also predicted that struggle and torment.
It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.
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The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.
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For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.
From Plessy to Brown was a long and difficult road, blocked by 4 wars and legislatively marked primarily by the successful efforts of Southern Senators to stymie any kind of civil rights legislation—until President Lyndon Johnson orchestrated passage of the Civil Rights Act of 1964. Because the Civil Rights Cases of 1883, that invalidated the Civil Rights Act of 1875 which was based on the Equal Protection Clause of the 14th Amendment, was still “good law,” the Civil Rights Act of 1964 relied instead upon the Commerce Clause that had first been given full force by Chief Justice John Marshall. The tortured legislative road to Civil Rights was near its end; the convulsions of the late 1960s would provide the final, searing demise of slavery’s awful sequelae. The Cherokee Nation; the Negro; the Japanese-Americans in World War II. The scourge of discrimination and oppression; still not dead today, but in a coma no doubt. It is for us—all of us—to assure that it does not awaken to turn its ugly visage upon Muslims or Iranians or some other minority group.
President Obama is praised as a fine orator. So was Abraham Lincoln. On 19 November 1863, the cemetery in Gettysburg, Pennsylvania, was to be dedicated. President Lincoln was invited to attend, and even to speak, though he was to play second fiddle to the main address to be given by Edward Everett, considered perhaps the greatest orator of his day. Everett spoke majestically for two hours and seven minutes, and was then absolutely eclipsed by President Lincoln, who spoke for 2½ minutes. The words of Lincoln’s Gettysburg Address are timeless, and perhaps express more eloquently and concisely than any others the guts of the struggle, the learning, and the growth of this great country from origin to today. They are worth repeating now:
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate – we can not consecrate – we can not hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.
We are far from Lincoln in time, but close to him in spirit. We yet take inspiration from him as we do from all those others who fought and struggled so valiantly to bring forth and perpetuate a great country, a country of laws and of order; a country where equality, freedom, responsibility, personal dignity, and patriotism produce change, but never collapse; a country where might really does try to make right. As lawyers, we should take great pride today, and every day, in the role that we have played and continue to play in ensuring that this great government “of the people, by the people, for the people” does not perish from the earth.
Stand tall. Be strong. Do your duty to the law and your country. You are lawyers, after all.
Thank you very much.