Barnett's Legal Stand Described as Obsolete
Gov. Ross Barnett of Mississippi yesterday continued his resistance to the desegregation of "Ole Miss," claiming a constitutional position that lost its validity back in pre-Civil War days, according to a Harvard expert on constitutional law.
"What really is at stake is federal supremacy in cases like this," explained Robert G. McCloskey, professor of Government. "And I should have thought we'd finally settled that question with the Civil War."
Legally, the issue was actually settled several decades before the Civil War, in the days of John Marshall's Supreme Court.
In refusing to allow James Meredith into the university, Barnett is pitting his state's powers against the 1954 Supreme Court decision outlawing segregation in public education. He argues that the decision, based on the 14th Amendment, exceeds the powers of the national government; and so, he says, he has the right to interpose state authority.
"He's a statesman of a lost cause," said McCloskey. Within 50 years of America's independence, the Supreme Court had established the Constitution as the "supreme law of the land" and the federal courts as its highest interpreters. McCloskey cited the 1821 case of Cohens v. Virginia, in which Marshall refuted the thesis that the highest state court had an equal power with the Supreme Court in interpreting the Constitution.
Barnett's "interposition doctrine" is not new. It originated as far back as 1789, an the Kentucky and Virginia Resolutions aimed at the Alien & Sedition Acts. The doctrine was based on the assumption that the Constitution is a compact among states who have retained sovereignty. Marshall overthrew that argument in McCulloch v. Maryland (1819), declaring that the Constitution was "established in the name of the people," not their state governments.
Calhoun picked up the doctrine 30 years later and turned it into the general Southern dogma known as "nullification." Nullification led to secession, and to the Civil War which "finally exterminated the doctrine's arguable validity," according to McCloskey.
"But if interposition or nullification hasn't got a legal leg to stand on nowadays, it still has the political juice in the South," he added. The doctrine was taken up again by Southern governors in 1956 in a verbal protest against the Court's desegregation decision. Gov. Orville Faubus of Arkansas used "interposition" the following year, and now Barnett "is taking a leaf out of Faubus' book," he said.
McCloskey called Barnett's constitutional position "pure demogoguery" and his actions "shot-in-the-arm politics." "I can see him drifting along on this issue--he'd like nothing better than to have a federal court throw him in jail."
The Associated Press reported yesterday that Barnett is on his way to the Oxford, Miss., campus to stop Meredith's third try for admission. Faced with a contempt charge, the governor has sworn to go to jail rather than submit to the desegregation of "Ole Miss."
McCloskey predicted that if Barnett goes ahead with his plan to have federal marshals arrested, the Federal District Court will direct a habeas corpus, and following the release of the marshals, the state arrestors would in turn be rounded up by their former captives.
He declined to foretell the events of the next few days, but he said that the federal courts will probably avoid putting Barnett in jail and lock up his subordinates instead.