Interposition address of Governor Marvin Griffin, Feb. 6, 1956

INTERPOSITION ADDRESS
OF GOVERNOR MARVIN GRIFFIN
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"Interposition is an appeal to reason"
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With the Interposition Resolution enacted into law by the General Assembly of Georgia

INTERPOSITION ADDRESS
OF
GOVERNOR MARVIN GRIFFIN
''Interposition is rm appeal to ru1.1<m" "It is the duty of the State in the flagrant cases to interpose its powers
between its people and the effort of the Federal Co11rt to {lssert an unlawful decision over them."
With the Interposition Resolution enacted into law by the General Assembly of Georgia
Published by
THE GEORGIA COMMISSION ON EDUCATION ATLANTA, GA.

PREFACE
Q N FEBRUARY 6, 1956, Governor Marvin Gritlin addressed
the General Assembly in Joint Session. He recommended that the General Assembly enact into law a suitable resolution of interposition in relation to the untoward decisions of the Federal Supreme Court against the Public Schools.
The unabridged text from which the Governor addressed the General Assembly is published herewith.
The text of the Resolution subsequently enacted by the General Assembly follows the Governor's address.
THE GEORGIA COMMISSION
ON EoucATION
ATLANTA

THE GOVERNOR'S ADDRESS

SPEAKER MOATE, LIEUTENANT-GOVERNOR VANDIVER. MEMBERS OF THE GENERAL ASSEMBLY AND MY FELLOW GEORGIANS:
We are in session here today to give continuing consideration to the most vital issue to confront this body since its creation.
That is the question of our course of action in the face of decisions by the United States Supreme Court which 9eek to destroy our system of segregated schools.
Our peril is all the more grave because the means utilized in these rulings strike at the very existence of State authority.
This General Assembly has enacted legislation making provision for education grants as authorized by the Amendment adding Section 13 to Article 8 of the Georgia Constitution. This General Assembly also has enacted other implementing legislation. These measures were recommended by the Georgia Commission on Education and by me. It has been my pleasure as Chief Executive, formally to approve these Acts, and they are now the law. I congratulate you upon this achievement. We are determined to use all honorable means and legal recources in this fight.
Entitled to congratulations also are those who were members of the General Assembly which in January, 1954, submitted to the people the Constitutional Amendment, the Governor and State administration then in office, and the members of the Education Commission. Many of you were members of that General Assembly and I had the honor to preside over the Senate. Most of all it is the people who are entitled to credit, for it was their wisdom, their foresight and their determination which placed the Constitutional Amendment in the organic law of Georgia.
We are now prepared, as and when necessary, and of course not until then, to commit the education of the children of this State to the people themselves. Through a system of private schools, organized and founded by the school patrons in the local communities, an educational structure serviceable and satisfactory to Georgians will continue as long as the people desire.
It is impossible to over-estimate the importance of this ac-

complishment. The great parts you have played m it wiJl be remembered throughout the years.
Must Preserve Our Schools
We must now direct our attention toward the continued preservation of our public schools. Authorized by the Georgia Constitution of 1777, the State's public school system is the oldest constitutionally-authorized system in the United States.
The social structure of the State is secure by reason of the legislation which you have enacted. As the result of these laws the integrity of the two races in Georgia will be maintained. But it is your solemn duty as representatives of the people and it is my solemn duty as Chief Executive, to utilize every means at our disposal to protect and defend the right of the State to operate her public schools as long as she desires.
We labor under this duty because the public schools of Georgia are good schools, operating in an efficient manner and serving well the children of both races. Also because acquiesence in the edicts of the Supreme Court of the United States over public schools is an invitation to that Court further to extend unlawfully its authority over other matters concerning which it has no rightful jurisdiction.
The Supreme Court had no authority to declare segregated public schools unconstitutional. Therefore, Georgia may not be justly accused of violating her obligations as a member of the Union in continuing to operate her public schools in each and every school district in this State.
As a matter of right, under these circumstances. the State ought to be possessed of power to declare that the Court overstepped its authority; that these decisions are null and void, and, thus, to justify before the Nation the interposition of her sovereign power between the Court and her public schools.
The Commission on Education has recommended that you adopt a resolution to that effect. When I had the honor of addressing you on January 10th, I stated it would be my privilege at a later date to present to you my views upon this matter. Since then I have conferred at length with Counsel, and have
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had the opportunity of conferring in Richmond with the Chief Executives of the Commonwealth of Virginia and the States of South Carolina, North Carolina and Mississippi.
It is my request that this General Assembly adopt a resolution declaring the decisions of the Supreme Court of the United States in the cases relating to the public schools of Virginia, South Carolina, Delaware and Kansas, to be null, void and of no effect. The Court's attempted usurpation is palpable and flagrant. The circumstances are such as in my judgment authorize you to take this course.
Let us examine in some detail the nature and structure of the government provided by the Constitution of the United States, and the fundamental principles of relationship between the States and the Federal Government, with particular reference to the Judicial Department of the Federal Government.
Fundamental Constitutional Truths
I submit the following fundamental truths: 1. In this Country sovereignty resides in the people of the respective States; 2. When the Constitution of the United States was formed and the Federal Government established, the people of the respective States delegated a portion of governmental authority to the Federal Government; 3. All of the power not delegated to the Federal Government is retained by the people of the respective States; 4. The three departments of the Federal Government-the legislative, executive and judicial-are agencies for the people of the respective States, created for the purpose only of carrying out the authority granted to each department; 5. The Supreme Court of the United States is one of the units of the Judicial Department of the Federal Government, and can have no authority beyond that delegated by the Constitution of the United States to the Judicial Department;
6. When any of the three departments of the Federal Government undertakes to exercise authority over matters concerning which it has not been granted power, such undertaking is illegal and unconstitutional, because it is
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beyond the authority granted. No exception is made for the Supreme Court of the United States, and if it undertakes to exercise power over a subject concerning which no authority has been [{ranted, its acts are illegal, unconstitutional and without any lawful force;
7. The Supreme Court of the United States has no jurisdiction over any State of the Union except in the case of suits between States respecting boundary disputes and the like; and suits between the States and the United States in cases of that character;
8. Since the Federal Supreme Court has no other authority to render any judgment against a State, its declaration that the States are prohibited from operating public schools according to the segregated system under which each of the two races is afforded its own schools, is wholly without authority of the Constitution and amounts to nothing more than an attempt at usurpation on the part of that Court;
9. The judicial power of the United States does not in the nature of things extend to interfering with the States in respect of their public school systems. Such matters are not within the scope of judicial power, but are within the scope of legislative power; and the pretended decisions of the Supreme Court of the United States in respect thereto are without force for this additional reason;
10. By these vicious decisions the Court undertakes to establish that its pronouncements are the supreme law of the land. The Court thus disobeys the Constitution, for it is there provided that the Constitution, the laws of the United States made in pursuance thereof, and treaties made under the authority of the United States, shall be the supreme law of the land. The Court assumes further unlawfully the power to judge all the laws of the States according to facts created by the Court, and to veto such laws if in the judgment of the Court they do not meet with its approval;
11. The Constitution of the United States does not state that the Sup;reme Court may declare an Act of a State Legislature or of the Congress to be unconstitutional. The Constitution does authorize the Judicial Department of the Federal Gov-
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ernment to try and determine a certain class of cases in law and equity. The Supreme Court has jurisdiction to review such of these cases as the Congress authorizes by statute. Of necessity, therefore, in deciding a case between litigants, who claim rights under different and conflicting laws, the Supreme Court, as any other Court, has to choose one law above another when the two are irreconcilable. When one party relies upon a statute, and the other party relies upon the Constitution, and the two are in utter conflict, a choice must be made. The Court must, of course, choose the Constitution and give effect to it in deciding the case. To this extent the Court has, of necessity, authority to declare laws unconstitutional. It has no further authority in this respect;
12. The Supreme Court has no power to judge of the extent of its own authority. Its authority is that which is authorized by the Constitution. When it goes beyond the Constitution, it oversteps its authority. It cannot by a mere claim of additional authority confer the same upon itself. In this respect, the Supreme Court is no different from the Executive or Legislative Departments of the Federal Government;
13. As the authority which the Supreme Court may exercise must be found within the limits of the judicial power delegated by the States, if the Court attempts to intrude into an unauthorized field, a State possesses the right to take note of the unlawful conduct of the Court and formally to declare the true nature and character thereof, and to denounce the same as null and void. It is the duty of the State in flagrant cases to so interpose its powers between its people and the effort of the Court to assert an unlawful dominion over them. This is true of each of the original thirteen States, for when our ancestors established the State Governments they charged those Governments with the responsibility of protecting life, property and the priceless possessions of freedom. It is likewise true of all the States, for as subsequent States arose they were not established with less power. This right of interposition, though not expressly referred to in the Constitution, arises out of the nature and character of that instrument and the government established by it, and exists of necessity.
II. That the Federal Government is one of limited powers which
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have been delegated to it by the people of the respective States, is attested not only by our history, but by the language of the Constitution itself. This fundamental proposition has never been seriously questioned from responsible places until the most recent years. The challenge against it now announced by the Supreme Court of the United States will obliterate our form of government if that challenge is successful.
The Constitution is in writing so that the powers granted to the Federal Government may be stated. No other reason exists for a written Constitution. A government of unlimited power needs no written Constitution.
Its first three Articles define respectively the powers of the legislative, executive and judicial branches of the Federal Government. In each instance these powers are carefully enumerated. Enumeration of powers would be unnecessary if the Federal Government had complete and general powers. The only excuse for enumeration is that the subjects over which the Federal Government has jurisdiction may be known.
In submitting the Constitution to the States for ratification it was explained by the public men who advocated its adoption that the Federal Government could exercise only the particular jurisdiction set out, and that all other authority was retained by the States. That there might be no doubt whatsoever upon this subject, it was understood that, forthwith upon ratification, an Amendment was to be proposed to the Constitution, in which it would be explicitly stated that the Government was one of delegated powers and that all other authority remained in the States. At the Conventions of Massachusetts, Virginia and North Carolina the ratifying acts expressly called for adoption of such an Amendment. All the Conventions understood that the Constitution created a government of delegated powers only. It was ratified upon that basis. In most instances the Articles of Ratification so stated. For example: In New York the ratifying Convention provided in the article of ratification: "That the powers of government may be resumed by the people whensoever it shall become necessary to their happiness; that each power, jurisdiction and right which is not by the Federal Constitution clearly delegated . . . remains to the people of the several States,
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or to their respective State Governments to whom they may have granted the same. . . ."
In keeping with this understanding, and to prevent the Federal Government from thereafter claiming to possess powers not delegated to it, the first Congress submitted to the States for ratification, and there was promptly ratified, the Tenth Amendment in the following words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
John Adams described this Amendment as containing a complete Bill of Rights.
That the Judicial Department of the Federal Government has only such authority as has been delegated to it, necessarily follows from the principle that the Federal Government is one of granted powers.
The outer limits of the authority of the Judicial Department are set forth in the Third Article of the Constitution. The Supreme Court is a part of that Department. A little later on I shall refer to that Article with particularity. Here I point out that it does not attempt to elevate the Judicial Department over and above any State of the Union or over and above the Legislative and Executive Departments of the Federal Government. There is only one possible exception to this statement, and that is that the Supreme Court of the United States is given authority to decide cases between two or more States, and cases between the United States and a State-this class of cases relating to boundary disputes and the like.
The Third Article is silent of any word or syllable which would indicate that the Supreme Court of the United States, or any other Federal Court, can in any other instance give orders to the States or sit in judgment over the States.
Supreme Court Acts Without Authority
When the Supreme Court of the United States acts beyond the powers delegated to it, it oversteps its authority. When it oversteps its authority, it acts without authority. The acts of any governmental department without authority are, of course, illegal. Such acts should never occur. When occurring, they
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are not entitled to enforcement. Particularly such acts cannot bind the States from whose people all powers are originally derived.
Suppose the Supreme Court of the United States should undertake to levy a tax? Such levy would be beyond the scope of its powers. Suppose it should undertake to declare that the smaller States were entitled to only one seat in the Senate? Such order would be nugatory. Suppose the Court makes a law? The pretended law is no law, for legislative power is not committed to the Court. Suppose the Court decides a question which the Constitution does not authorize it to decide? Its decision is no decision, for the requisite power to make the decision was absent. These propositions are plain and do not require elaboration.
To demonstrate that the United States Supreme Court has no
jurisdiction over any State except in the case ot boundary dis-
putes, and the like, involving another State or the United States, I will quote the pertinent parts of the Constitution. Before doing so, however, we should remind ourselves that the possibility that this Court might entertain a suit against a State was one of the objections raised against the ratification of the Constitution. This possibility was hooted at by Alexander Hamilton, James Madison, John Marshall and the other public men advocating ratification.
Mr. Hamilton said in the eighty-first number of the Federalist: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State of the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal. ... To ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence would be altogether forced and unwarrantable."
Mr. Madison said in the Virginia Convention, with reference to the suggestions of Mr. Mason and Mr. Henry that under the. proposed Constitution it might be held that a State could be
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sued in the Federal Courts by an individual, and in repelling such suggestion: "Its jurisdiction (the Federal jurisdiction) in controversies between a State and citizens of another State is much objected to, and perhaps without reason. It is not in the power of individuals to call any State into court. The only operation it (referring to the Third Article of the Constitution) can have is that if a State should wish to bring suit against a citizen, it must be brought before the Federal Court. . . . It appears to me that this (Article) can have no operation but this-to give a citizen a right to be heard in the Federal courts; and if a State should condescend to be a party this Court may take cognizance."
In that same convention Mr. Marshall said: "I hope that no gentlemen will think that a State will be called at the bar of the Federal court. ... It is not rational to suppose that the sovereign power would be dragged before a Court. ..." I now quote the pertinent portions of Sections 1 and 2 of Article III of the United States Constitution:
"SECTION 1: The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . ."
"SECTION 2: The judicial power shall extend to all cases in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority: - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction; - to Controversies to which the United States shall be a Party; - to Controversies between two or more States; - between a State and Citizens of another State; - between citizens of different States; - between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
In the case of Chisholm vs. Georgia' the Supreme Court of the United States held itself authorized to entertain a suit against this State brought by Mr. Chisholm and his fellow-executors. The result was the ratification of the Eleventh Amendment, which I
1 2 Dallas 419
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read: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State."
As Mr. Justice Bradley said in Hans vs. Louisiana" "The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States.... The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. . . . Any such power as that of authorizing the federal judiciary to entertain suits by individuals against the States had been expressly disclaimed, and even resented, by the great defenders of the Constitution whilst it was on its trial before the American people.... The decision in the case of Chisholm vs. Georgia created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the 11th Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the Legislatures of the States. This Amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all Legislatures and all courts, reversed the decision of the supreme court."
And as Mr. Justice Pitney said in the case of In Re The State of New York, Edward S. Walsh, Superintendent,3 "That a State may not be sued without its consent is a fundamental rule of jurisprudence, having so important a bearing upon the construction of the Constitution of the United States, that it has become established by repeated decisions of this Court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State, without consent given; nor one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the 11th Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification."
a I~4 U. s. I ;; 256 u. s. 490
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There is no room for anyone who can read the Constitution to claim that it authorizes a Federal Court to entertain a suit by an individual against a State, unless the State has consented to be sued.
III.
We now reach the question as to the status of the decisions of the Supreme Court of the United States against the public schools of South Carolina, Virginia, Delaware and Kansas. By these decisions the separate school laws of those States affording each race its own separate schools were declared violative of the Constitution. By these decisions the Court also said "all provisions of Federal, State or local law" contrary to the decision "must yield." The Court thus undertakes to apply the decision to the school laws of all the 21 States providing separate education.
In the first place, this decision does not and cannot bind the State of Georgia. As has been shown, the Constitution prevents this State from being sued by individuals in the Supreme Court or in any Federal Court without the State's consent. Having no authority to entertain a case against Georgia, the Supreme Court cannot bind this State by a judgment rendered in a case otherwise entertained. Being without authority to bind the State of Georgia directly, the Court cannot by indirection obtain the same result.
These considerations are amply sufficient to justify the State in proceeding with the operation of her public schools.
We shall go further and show that the Court was possessed of no authority to render the decisions; that they are beyond the jurisdiction of the Court; and therefore that they are null and void. The Court was without jurisdiction of these cases for each of two plain and specific reasons: ( 1) The cases were suits against the States, and the Constitution forbade the Court to try them. (2) The controversies were not "cases in law and in equity," and the jurisdiction of the Court is expressly limited to such cases.
For clarity of demonstration, let the South Carolina case be examined: The plaintiffs were Briggs and others. The defendants
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named in the record are R. W. Elliott and others as members of the School Board of Clarendon County, South Carolina. The issue was whether these officials were to be permitted to operate the schools under their jurisdiction in accord with the method of education prescribed by the State of South Carolina.
Subterfuge In South Carolina Case
The State of South Carolina was not named by the plaintiffs as a party defendant. Instead the school officials were named as defendants. But the State can only act through officers and agents. That being true the plaintiffs could not convert that which in actuality was a suit against the State of South Carolina into a suit against individuals, by the simple mechanism of omitting to name the State as a defendant and naming instead the officials of the State.
As Mr. Justice Pitney put it in the case against the State of New York to which reference has been made: "It is now established that the question (of whether the case is a suit against the State) is to be determined not by the mere names of the titular parties, but by the essential nature and effect of the proceeding, as it appears from the entire record."
Was this case, judged by its essential nature and effect, a suit against the State of Carolina? It assuredly was. Pretending that it was a suit against Mr. Elliott and his fellow school officials is nonsense.
But this is the excuse which this Court gives for entertaining such cases. This excuse will not stand examination. The members of the Clarendon County School Board had not a dollar involved in the case. They had no private rights at issue. The sole interest of these gentlemen was as officials of South CaroUna.
The members of the Board were necessarily without individual interest. The schools were public schools established by the laws. Every dollar of money which went into their operation was public money of South Carolina. The schools were operated and regulated pursuant to the laws of the State. The suit which attacked the method of operation provided by these laws was
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plainly and manifestly one against the State of South Carolina.
This Court gives an additional excuse for trying cases of this sort contrary to the mandate of the Constitution. That excuse is that when an official proceeds to discharge his official duties pursuant to a State law which is claimed to be unconstitutional, the Court may try the question of constitutionality, and if it finds the statute to be in fact unconstitutional, the suit will not be one against the State, but one against the officer as a private person. An elementary school child can see through this. In order to decide whether such a case is one against the State or a private person, the Court, according to this theory, must first determine the question at issue. By this process the Court tries the case and decides it before it is able to conclude whether it has jurisdiction.
The truth is that this Court refuses to confine itself within the limits set up by the Constitution.
We have already seen that Section 2 of Article III limits the power of the Judicial Department, including the Supreme Court, to "cases in law and equity." Not all such cases are within the judicial power, but no case is within the judicial power unless it be a case in law or equity.
The Constitution thus confines the Judicial Department to matters of a judicial nature and character. Before a case can be entertained by any Federal Court it must be a case in law or a case in equity.
The terms here used-law and equity-have a well-understood meaning. Each of them refers to one of the two great systems of jurisprudence which grew up in England and were brought to this Country. Taken together, the two terms-law and equitydenote the whole class of controversies which are triable in the courts of justice, and which may be resolved by the Judicial Department of the Government.
The great educational and social questions involved in the Clarendon County case do not relate to a case either at law or in equity. A judicial controversy is not involved. The controversy or case is a public one. No court can determine it. No system of law provides for the solution of such matters in judicial
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proceedings. The Constitution of the United States provides no exception.
Hypocritical Pretense by Court
The Supreme Court also has an excuse about this. This excuse is that the individual child who is a plaintiff in the case has a personal and present right involved. The Court says it is not passing upon any great public question, but only passing upon the personal right of the individual child. If, says the Court, these great public questions are incidentally decided, and they involve millions of people, such result obtains only because it was necessary for the Court to decide these questions in order to protect the individual plaintiff.
This hypocritical pretense is coupled with an invitation to the Attorney General of the United States and the Attorneys General of twenty-one States to present briefs and argument. It is ridiculous to say that the Court was interested in individual personal rights of these plaintiffs. What it was interested in doing was in destroying the public school structures of twenty-one States.
Was relief accorded these individual plaintiffs? Certainly not. If their present personal rights were the subject at issue, those rights should have been protected. But the Court's judgment made no provision for the enforcement of any present personal right of any plaintiff. Instead, the Court's second decision was directed against thousands of school children, and said that the School Boards who were defendants must proceed to rearrange entire school systems.
The pretense that the cases simply involved the individual rights of a few children, whose rights were resisted by the school officials as individuals, was for the purpose of claiming that the Court had before it a case in equity. The Court had to cJaim that the controversy was a case in equity before it could claim jurisdiction. under the Constitution. But before the Court got through with the case, these alleged personal and present rights of individual pupils were forgotten, and the purpose of the Court to destroy the laws of the States was manifest.
The truth is that the great subjects involved in this dispute
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are legitimately determinable only by the people themselves, speaking through their legislative bodies, the State Legislatures and the Congress, and so far as the Federal Government is concerned, by Amendment of the Constitution, if such Amendment is desired. In the nature of things it is neither possible nor desirable that these subjects should be settled by judicial tribunals.
The constitutional pronouncement as to what is the supreme law of the land includes only (1) the Constitution itself, ( 2) laws of the United States made in pursuance thereof, and ( 3) treaties made under the authority of the United States. Decisions of the Supreme Court are not included. Under this plain language the Court disobeyed the Constitution when it decided these cases of which it had no jurisdiction.
IV.
What Moved the Court?
What moved the Court to commit so grave an act of usurpation? "Partisan politics" does not afford a complete answer.
The whole motivation may be found in pressures far more compelling. A close examination of what the Court has done discloses the true purpose to be nothing less than the destruction of the States.
This conclusion is irresistible when consideration is given to the method employed by the Court. After ignoring the prohibitions of the Constitution against suits against a State, and the limitations of the Constitution confining the judicial authority to cases of law and equity, it made its decisions under Paragraph 1 of the Fourteenth Amendment. Comprehension of the Court's act requires examination of this Amendment. The full text is:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due
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process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This text is divided into four parts: ( 1) The dual citizenship clause; (2) the privileges and immunities clause; (3) the due process of law clause; and (4) the equal protection of the laws clause.
The dual citizenship clause simply states that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the State of their residence and citizens of the United States. This is a clear statement that such citizens are citizens of two governments-citizens of the State in which they live and citizens of the United States.
Many times has this been admitted, and the Court does not now deny its truth. As was said in the Cruikshank case by Chief Justice Waite:
"There is in our political system a government of each of the several States, and a government of the United States. Each is distinct from the others, and has citizens of its own, who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State; but his rights of citizenship under one of these governments will be different from those he has under the other." The privileges and immunities clause neither creates, defines nor enumerates any rights. It simply says that a State may not abridge privileges or immunities which belong to a person as a United States citizen. These privileges and immunities are relatively few, and are only such as arise out of the provisions of the Federal Constitution. Illustrations of these rights as given by Mr. Justice Miller in the Slaughter House cases5 are the rights to have free access to the seaports, to the courts of justice, and to demand the care and protection of the Federal Government over life, liberty and property when on the high seas or within the jurisdiction of a foreign government.
The great body of the rights of free men are not embraced within the privileges and immunities of citizens of the United States. These rights are possessed in virtue of State
2 Otto 542 16 Wallace 36
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citizenship alone, and it is to the State Government that the citizen looks for protection in respect of them.
All this also is admitted by the Supreme Court. To quote further from Justice Waite:
"Sovereignty for the protection of rights of life and personal liberty within the respective States, rests alone with the States. . . . The Government of the United States. . . . can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States." To quote from Justice Miller, the privileges or immunities which arise out of State citizenship "embrace generally those fundamental rights for the security and establishment of which organized society is instituted, and they remain, with certain exceptions mentioned in the Federal Constitution, under the care of the State Governments." None of this is denied by the Court.
Neither did the Court claim that the due process of law clause justifies the decisions made by it against the public schools of the States.
It did contend that the due process of law clause in the Fifth Amendment, which is a restriction on Congress, required it to declare unconstitutional the acts of Congress establishing the dual system of education in the District of Columbia. This decision is not applicable to the States, but it does serve to point up the extraordinary nature and character of a tribunal which will so distort the meaning of plain words.
It was under the equal protection of the laws clause that the Court made these decisions by which it is claimed that Georgia has no authority to operate her system of separate public schools. The Court said separate public school systems are violative of the following words of the Fourteenth Amendment: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."
It is to be remembered that there is no provision in the
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Federal Constitution dealing with education or schools. Not one word or syllable! These are among the subjects reserved to the States. Nor are there any provisions in the Federal Constitution on the subject of race, except those of the Fifteenth Amendment which relate solely to voting. Nor does the United States Constitution provide one way or another with respect to the subject which so-called do-gooders refer to in vague and general terms as the doctrine of the "equality of mankind."
By what process of reasoning then does the Court attempt to justify its conclusion?
Let the Court speak in its own words, which I read:
"To separate them (the colored children) from others (the white children) of similar age and qualifications solely because of their race . . . generates a feeling of inferiority. . . . A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system."
Inferiority Complex vs. Constitution
In other words, the Court says separate schools for each race cause the colored children to have an inferiority complex; that this inferiority complex prevents them from studying and learning as well as they would in a mixed school; and that therefore public schools operated on the dual system do not give colored children as much legal protection as those schools give white children, because of this inferiority complex in the colored.
This conclusion is absurd on the face of it and insulting to the intelligence.
The holding of the Court does not rest upon any construction of the Constitution. It does not rest upon any inequality of protection under the language of the separate school laws. It rests entirely upon the inferiority complex finding just quoted. The Court fashioned this theory and then pronounced it a part
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of the supreme law of the land. The dubious character of the several books cited by the Court is not here so important as that the Court sought to transmute socialistic theory into law. Sociology and psychology are not exact sciences. These sciences are in formative stages and speculative.
Those who have the power to judge the nature and effect of a law by supposed principles of speculative theory have the power to veto every law upon their notion of its suitability.
Jeopardizes Every State Law
The doctrine, therefore, which the Court asserts by these decisions is one which places almost every law of every State at the Court's plenary disposal. It is difficult to imagine a subject within the realm of ordinary State legislation which is not here adjudged under the final authority of the Federal Government.
Application of these decisions to public education brings every phase of that subject under Federal jurisdiction. The laws respecting marriage and divorce are likewise subject to revision and review, upon allegations of unconstitutionality, by this new ruling of the Court.
And here, let all remember that central governments of general power are like the grave-they perpetually cry, give! give! give! And like the grave, they never return the liberties once taken.
V.
The Court having exceeded its jurisdiction in the respects heretofore pointed out, these decisions are manifestly null and void, unless the Constitution gives the Court the power to determine the extent of its own authority. I have already recited the limits of the judicial power in quoting the pertinent part of Section I and the whole of Paragraph I, Section II, of Article III. The Supreme Court possesses only a portion of the judicial power granted by these Sections. T~e whole of the power not comprehending any authority in the Judicial Department to lift itself by its boot-straps, it would; follow that the Supreme Court cannot do so.
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Paragraph II of Section II puts the matter entirely at rest. There it is provided: "In all cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make."
We, therefore, see that the Constitution divides the jurisdiction of the Supreme Court into two classes-original and appellate. The Constitution itself defines the original jurisdiction and limits it to the two instances stated. Neither of these instances is of any importance here. The appellate jurisdiction is the important jurisdiction of the Court and that which is here involved. This appellate jurisdiction is under the complete control of the Congress. The Supreme Court cannot entertain any case which originated in any other court except pursuant to such regulations as Congress shall make; and Congress has the right by exceptions to the appellate jurisdiction to prevent the Court from entertaining any case or class of cases which Congress may desire to keep out of the Court.
The Court cannot be said to have the power to judge of its own authority when its entire appellate authority is under the complete control and dominion of the Congress. Assertions that the Supreme Court can rightly do as it pleases have no basis in the Constitution.
This is not to say that the Supreme Court may not hold a law which is violative of the Constitution to be unconstitutional if it is necessary for the Court to determine this question in order to dispose of a case in law or equity legitimately before it for decision. The Constitution says nothing on this subject, but this power inheres in every court when necessary to the exercise of its jurisdiction. As already pointed out, when a choice must be made between conflicting laws for the decision of a case, it is the duty of the court required to decide the case to prefer that law which is the superior. This power arises out of necessity and is limited to cases of necessity. That is, in determining the rights of parties before it, the Supreme Court may hold a State
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law to be unconstitutional only when it is imperatively necessary to so hold because of manifest repugnance between that law and the Constitution, and when the case cannot be otherwise decided.
Must Not Overstep Constitution But the Court may not overstep the Constitution. It may not exercise authority not granted to the Judicial Department. It may not pass upon a controversy which is not a case in law or in equity. It may not entertain a suit brought by an individual against a State unless the State has consented to be sued. It may not amend the Constitution. It may not assert jurisdiction over a subject matter exclusively under the control of the States.
The Court of course has no power to place upon the Constitution any construction which it wills. The Constitution says nothing about power to construe it, but necessarily application of any law by any court involves a measure of construction. That the construction must be honest and legitimate goes without saying. The Supreme Court possesses no exclusive power of construction. Nor does it have authority under the guise of construction to change the meaning and intent of the instrument beyond its fair import.
Nor has the Court any power to say that the Constitution changes in meaning. The law is as Mr. Justice Brewer spoke it in South Carolina vs. United StatesG:
"The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. . . . Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded. . .. 'It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizens; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and 6 199 u. s. 437
21

adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.' "
Congressional Right to Prevent Intrusion
Congress has of course the right to prevent intrusion of the Court into areas over which it has no jurisdiction by simple amendment of the Judiciary Act plainly stating that the lower Federal Courts shall not entertain such cases, and that the Supreme Court shall have no authority to review any decision of a State Court upon such matters. Whether or not the Congress will enact such legislation is a matter which addresses itself solely to the Congress. There is no indication at this time that such legislation will be enacted.
The indications are to the contrary. During the 83rd Congress the Senate passed Senate Joint Resolution 44. This Resolution was publicized as a proposal to amend the Constitution of the United States by providing for the retirement of Justices of the Supreme Court. The real purpose of the amendment was to rewrite the Judiciary Article. Section 3 of the proposed amendment revised Paragraph 2 of Section II of Article III. It removed the control of Congress over the appellate jurisdiction of the Supreme Court; and conferred constitutional appellate jurisdiction upon the Court in respect of "all cases arising under this Constitution. . . . both as to law and fact."
The Senate Report submitted by Senator Butler of Maryland stated that the Founding Fathers "did not supply the Supreme Court with all the armor which it needs to protect itself. The five substantive Sections of this Amendment constitute an effort to supply additional protection. . . . This Amendment seeks to protect the appellate jurisdiction of the Supreme Court of the United States. The jurisdiction of the Supreme Court, original as well as appellate, is set forth in the second paragraph of Section II of Article III of the Constitution which reads: (Quoting). Thus the Constitution as it now stands permits the Congress to withdraw appellate jurisdiction from the Supreme Court in cases involving constitutional questions which are not within the
22

original jurisdiction of the court. ... If Congress could take away jurisdiction as it did in the Mccardle case, it could also take away all appellate jurisdiction involving constitutional questions. This would leave decisions of State Courts and lower Federal Courts with a finality which they do not now possess under our judicial system."
This proposed amendment thus sought to give the Court power to declare the meaning of the Constitution. It would have legalized the claims of those who advocate the doctrine of the Court's supremacy over the States. After passing the Senate, the resolution was referred in the House of Representatives to the Committee on Judiciary. There it was killed by the intervention of Congressman E. L. Forrester of Georgia and others.
VI.
The States are not required to await action of the Congress. Indeed, the interposition of authority against unlawful and unconstitutional actions of the Supreme Court is peculiarly within the province of the States. The States alone are parties to the Constitution. The Federal Government is no party thereto, but the creature thereof. The States, by the compact of the Constitution, having created the Federal Government, have the right to pronounce as null and void the assertion of unlawful dominion by any of the departments thereof.
The fact that the Constitution does not refer to this right of the States is no evidence that it does not exist. The existence of the power is implicit in the nature and structure of our Government. It is among the reserved rights of the States. Just as the Supreme Court may declare laws unconstitutional when such is necessary to the exercise of the authority committed to it to try cases in law and equity, so the States may declare null and void any unlawful action of the Supreme Court which interferes with the exercise of their reserved rights.
Interposition is no new doctrine. It is one which has been recognized since the beginning. Thomas Jefferson said:
"To give the General Government the final and exclusive right to judge its powers, is to make its discretion, and not
23

the Constitution, the measure of its power"; and that "In all cases of compact between parties having no common judge, each party has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress."
James Madison, who largely wrote the Constitution, had this to say as to such right of interposition:
"The powers of the Federal Government as resulting from the compact to which the States are parties, are limited by the plain sense and intention of the instrument constituting that compact; are no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."
Power Co-existent With Duty
Power is co-existent with duty. Each State necessarily possesses sufficient power to discharge the duty owed her citizens. Each State possesses the power necessary to the discharge of her governmental responsibilities.
Georgia has a right to operate and maintain a public school system utilizing such educational methods therein as in her judgment are conductive to the welfare of those to be educated and the people of the State generally. This is a governmental responsibility which lawfully she has assumed. Her rights in this respect have not been delegated to the Central Government, but on the contrary, she and the other States have reserved such matters to th.emselves by the terms of the Tenth Amendment. Being possessed of this lawful right, she is possessed of power to repel every unlawful interference therewith.
The duty and responsibility of protecting life, property and the priceless possessions of freedom rest upon the Government of Georgia as to all those within her territorial limits. The State alone has this responsibility. Laboring
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under this high obligation she is possessed of the means to effectuate it.
Mr. Justice Washington in Cornfield vs. Coryell1 declared:
"The inquiry is, what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate."
In Ward vs. Maryland, 8 Mr. Justice Clifford stated the fundamental doctrine that the rights of the citizen which are under State protection embrace nearly every civil right for the establishment and protection of which organized government is instituted.
In the Slaughter House Cases/ Mr. Justice Miller, after referring to the Cornfield and Ward cases, asked:
"Was it the purpose of the 14th Amendment ... to transfer the security and protection of all the civil rights which we have mentioned from the States to the Federal Government?"
And after stating that the consequences thereof would be "so serious, so far reaching and pervading, so great a departure from the structure and spirit of our institutions," and would "fetter and degrade the State governments" and subject them to the control of the Federal Government "in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character," and "Radically change the whole theory of the relations of the State and Federal Governments to each other and both these governments to the people;"
he said it was irresistibly conclusive "that no such results were intended by the Congress which proposed (this Amendment) nor by the Legislatures of the States, which ratified (it)."
It would be vain for the State to be charged with the re-
, 4 Wash. C.C. 437 8 12 Wallace 430 " 16 Wallace 36
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sponsibility of protection of the fundamental rights of the people, if she is powerless to declare null and void an overstepping of authority by the Federal Judiciary.
There should be no conflict between the Federal Government and the States. No department of the Federal Government should interfere with the reserved rights of the States. I quote again from Chief Justice Waites:
"The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad....
"The government of the United States is one of the delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the State or the people. No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States."
History of Interposition
The procedure of interposition is woven throughout the whole fabric of our constitutional history. This right has been asserted many times over the years by both Northern and Southern States under a wide variety of circumstances. Ample precedent for its exercise exists in the constitutional history of our own State of Georgia. We can be proud that she was one of the first States in the Country to rise up against usurpation of her reserved sovereign powers.
On three occasions in the past the Georgia General Assembly has interposed successfully against unconstitutional decisions of the Supreme Court in which the State of Georgia was involved.
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The first interposition of Georgia resulted from the Chisholm case, to which I have referred. Shortly after the formation of the Government, suits were filed in the Supreme Court against several States, notwithstanding the assurances when the question of ratification was at issue that the Constitution did not authorize the Court to entertain such suits.
But when the Court issued a writ directing this State to answer the suit of Mr. Chisholm and his fellow executors upon the ground that as citizens of South Carolina and executors of a British Subject, they had a right to file an action against the State without her consent, Georgia determined to insist upon compliance with the Constitution.
Accordingly the State refused to appear, and presented to the Court a written remonstration of protestation. Justice Wilson said in the opinion subsequently delivered: "The question to be determined is, whether this State so respectable, and whose claims soar so high, is amenable to the jurisdiction of the Supreme Court of the United States?" The Justices determined the question in the affirmative.
The Legislature readied appropriate legislation to prevent the execution of any judgment by the Court, and in the meantime appealed to the conscience of the States of the Nation. The Legislatures of Massachusetts and Virginia supported Georgia's position and denounced the action of the Court as "unconstitutional and extra-judicial."
The Eleventh Amendment resulted, and the Chisholm case and the other cases pending against the other States were ordered by the Court swept from its records.
Later Georgia was compelled again to interpose. In 1802 the State agreed to convey to the United States the western lands of Georgia lying west of the Chattahoochee and east of Mississippi, so that the whole Country might receive the benefit of this vast territory. In return certain promises were made by the United States to Georgia, which included cession to Georgia of that part of the lands formerly claimed by South Carolina, lying east of Georgia's western boundary, and which that State had ceded to the United States. The United States also agreed
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to remove all the Indian tribes within Georgia to lands in the west.
The United States Government did not voluntarily keep its obligation in respect of any of the Indian tribes, and encouraged the Cherokees to remain within the State and set up an independent government in hostility to that of Georgia. The General Assembly on December 20, 1828, expressly provided for the operation of the laws of the State throughout all the territory of the State, including that enormous portion of the State's territory occupied by the Cherokees.
In 1830 George or Corn Tassel was convicted in the Superior Court of Hall County for the crime of murder. A group of meddlers from outside the State caused the Supreme Court of the United States to issue to the Governor of Georgia a writ of error requiring the State to appear before the Supreme Court of the United States on the appeal of the convict, contending that the State had no power to execute her criminal laws within this portion of her territory.
Governor Gilmer transmitted the writ to the General Assembly with a message in which he declared, "Any attempt to execute the writ will be resisted with all the force at my command." Governor Gilmer added:
"If the judicial power, thus attempted to be exercised by the Courts of the United States, is submitted to or sustained, it must eventuate in the utter annihilation of the State governments or in other consequences not less fatal to the peace and prosperity of our present highly favored country."
The General Assembly by Joint Resolution set forth in Georgia Laws 1830, pages 282, 283, denounced this action of the Court, and "Resolved, That his Excellency the Governor, be and he is hereby authorized and required, with all the force and means, placed at his command by the constitution and laws of this State, to resist and repel, any and every invasion, from whatever quarter upon the administration of the criminal laws of this State."
That General Assembly further "Resolved, That the State of Georgia, will never so far compromit her sovereignty as an independent State, as to become a party to the case sought to be made
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bdore the Supreme Court of the United States, by the writ in question."
The matter was concluded by the immediate execution of the judgment of the Superior Court of Hall County.
The elements seeking to deprive the State of jurisdiction over the portion of the territory occupied by the Cherokees, caused suit to be brought in the Supreme Court of the United States against Georgia in the name of the Cherokee Nation. The Court held itself without jurisdiction to entertain this suit against the State, having been rebuked in the Chisholm case by the Eleventh Amendment. Thereupon an alleged missionary named Samuel A. Worchester caused himself to be arrested for remaining among the tribes without taking an oath of allegiance to the State as required by the laws. The purpose was to obtain a decision of the Supreme Court of the United States that Georgia was without authority over this portion of the State. Worchester was tried in the Superior Court of Gwinnett County, but acquitted for technical failure of evidence. He then caused himself to be again arrested, along with other alleged missionaries, Butler and Trott. They were all duly tried in the court, convicted and sentenced to the penitentiary. Governor Gilmer urged them to accept pardons, to desist from their efforts to stir up the Indians against the State and to leave the Cherokee country. Worchester and Butler refused, and caused the Supreme Court of the United States to issue a writ of error in their cases, directed to the Governor. The State refused to appear. The Court held that Georgia had no jurisdiction over these lands which had been a part of the State since the charter granted by King George II to the Trustees in 1732.
Senator George M. Troup issued an open letter saying:
"The people of Georgia will receive with indignant feelings, as they ought, the recent decisions of the Supreme Court, so flagrantly violative of their sovereign rights. I hope the people will treat it, however, as become them, with moderation, dignity and firmness; and so treating it, Georgia will be unhurt by what will prove to be an empty threat. The Judges know you will not yield obedience to mandates, and they may desire
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pretexts for enforcement of them which I trust you will not give."
On November 6, 1832 Governor Lumpkin brought the matter to the attention of the Legislature in his message to the General Assembly, describing the decision as "an attempt to prostrate the sovereignty of the State in the exercise of its constitutional criminal jurisdiction."
The alleged missionaries, remaining in prison and now learning that Georgia was more powerful than the United States Supreme Court, thought better of their earlier refusal of pardon, and in January, 1833, accepted the clemency offered by Governor Lumpkin.
In the case of another murderer, a man named Graves, it was necessary for the General Assembly to further interpose against this Court by Joint Resolution set forth in Acts of 1834, pages 338-339. The attempted interference by the Washington Court in this case was ignored and sentence executed.
As we know, Georgia prevailed in the assertion of her lawful rights over this territory. The Federal Government, finding that Georgia would not yield, carried out its obligations with respect to the resettlement in western lands of those Cherokees who did not wish to be under the Government of Georgia. This Country, thanks to the statesmanship and courage of the Georgians of an earlier day, now constitutes one of the most prosperous portions of our State.
Virginia interposed by Resolution of her General Assembly against the Alien and Sedition Acts. Included in the Resolution was the following:
"The General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each for co-operating with this State, in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people."
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The Kentucky Legislature likewise interposed against those laws, saying:
"And that therefore, this Commonwealth is determined, as it doubts not its co-States are, to submit to undelegated and consequently unlimited powers in no man or body of men on earth."
By a second Resolution the Legislature of Kentucky further said:
"That the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of the infraction; and, that a nullification, by those sovereignties of all unauthorized acts done under color of that instrument, is the rightful remedy."
At the Hartford Convention attended by delegations appointed by the Legislatures of Connecticut, Massachusetts and Rhode Island, and also by delegations from New Hampshire and Vermont, this declaration was solemnly made:
"In cases of deliberate, dangerous and palpable infractions of the Constitution, affecting the sovereignty of a State and the liberties of the people, it is not only the right, but the duty of such State to interpose its authority for their protection in the manner best calculated to secure that end."
In 1858 and 1859 Wisconsin interposed against the Acts of Congress known as the Fugitive Slave Laws, and the Legislature and Courts of Wisconsin successfully defied the Congress and the Supreme Court of the United States. Joint Resolution No. 4 of the Wisconsin Legislature adopted March 19, 1859, contained among other things the following statement of fundamental principle:
"Resolved, that the government formed by the Constitution of the United States was not made the exclusive or final judge of the extent of the powers delegated to itself, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
The Legislature of Iowa successfully challenged the Court as
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is shown in the case of Rees vs. City of Watertown. 10 The Federal Courts unde11ook to enforce certain bonds declared invalid by the Legislature of Iowa. By a series of laws enacted in the 1870's the State of Iowa maintained its position that these bonds of its municipalities should not be discharged. The Supreme Court of the United States yielded by the decision in the Rees case.
VII. Invocation of this State's right of interposition is not a substitute for, nor does it take the place of, the plan formulated for going to private schools as a last resort to preserve segregation. The private school plan is designed to provide segregated schools within the terms of the United States Supreme Court decision. It is our first, last and only absolute remedy.
Interposition Hope to Preserve Schools Interposition is the assertion of our rights in the hope of preventing a situation which would lead to the abandonment of the public school system. It is an appeal to reason. I have gone into considerable detail so that it might appear clearly that the States have both the right and duty of interposition against conduct on the part of the Supreme Court which is not authorized by the powers granted under the Constitution. I have demonstrated that the usurpation in the public school cases is palpable and deliberate. I have shown that the rule announced by the Court will destroy the States.
Under these circumstances it is certainly, as I see it, the duty of this General Assembly to declare these decisions to be null and void.
If by naked force alone the Federal Government unlawfully forces these decisions upon us, the legislation which you have enacted at this session will protect the social structure. And at the same time, it will enable the people of the State to care for the education of their children. Education can be provided by other than public schools. You have seen to that.
By denouncing these decisions as null and void you declare what is true under the supreme law of the land, vindi-
10 19 Wallace 107
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cate the lawful power of the State, and make plain and clear the right of Georgia to continue the operation of her public schools notwithstanding these decisions.
You do much more than that. You, as the representatives of the people of the State, thus place the State's power and prestige squarely in the fight to preserve an indestructible Union of indestructible States.
For that is the issue raised by the Court. During our generation will that issue be determined, and upon its determination rests the future of the American people.
The Court by claiming its own supremacy asserts old doctrine in new form. Absolutism is as old as tyranny. Louis of France said "I am the State." The Stuart Kings of England announced that they ruled by Divine Right and that the King could do no wrong. But the genius of American institutions is that sovereign power resides in the people of the respective States.
We say with our fathers that no government, no governmental department, no court or other tribunal, has the right to dispose of the fundamental liberties of man. We believe that they derive from Almighty God. That when the Great Creator of the universe breathed upon the dust and made an immortal soul, he gave that man certain rights and freedoms beyond the power of government or any court, no matter how supreme.
It is unnecessary to catalog these immunities, but among them are the rights possessed by every man to have a home and rear a family, to choose his own associates, to rear his children according to his belief, to stand erect in the dignity of his personality, and to maintain the pride of his inheritance.
The liberties of men have never lasted long under governments of total power. Freedom is a fragile flower and must be tended by the people with that close watchfulness which can be given only to governments close to home, and responsive to the local will.
Upon the great issues of the day Georgia has always played the valiant part. Let no one be mistaken about this; and upon this issue the State and her people will firmly stand.
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A RESOLUTION
A Resolution to declare the Supreme Court decisions of May 17, 1954 and May 31, 1955, in the school segregation cases, and all similar decisions, by the Supreme Court null, void and of no effect; to declare that a contest of powers has arisen between the State of Georgia and the Supreme Court of the United States; to invoke the doctrine of interposition; and for other purposes.
BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES, THE SENATE CONCURRING,
That the General Assembly of Georgia doth hereby unequivocally express a firm and determined resolution to maintain and defend the Constitution of the United States, and the Constitution of this State against every attempt, whether foreign or domestic, to undermine and destroy the fundamental principles. embodied in our basic law, by which the liberty of the people and the sovereignty of the States, in their proper spheres, hav~ been long protected and assured;
That the General Assembly of Georgia doth explicitly and pre-emptorily declare that it views the powers of the Federal Government as resulting solely from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument creating that compact;
That the General Assembly of Georgia asserts that the powers of the Federal Government are valid only to the extent that these powers have been enumerated in the compact to which the various States assented originally and to which the States have assented in subsequent amendments validly adopted and ratified;
That the very nature of this basic compact, apparent upon its face, is that the ratifying States, parties thereto, have agreed voluntarily to surrender certain of their sovereign rights, but only certain of these sovereign rights, to a Federal Government thus constituted; and that all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, have been reserved to the States respectively, or to the people;
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That the State of Georgia has at no time surrendered to the General Government its right to maintain racially separate p:ublic schools and other public facilities;
That the State of Georgia, in ratifying the Fourteenth Amendment to the Constitution, did not agree, nor did the other States ratifying the Fourteenth Amendment agree, that the power to operate racially separate public schools and other facilities was to be prohibited to them thereby;
And as evidence of such understanding, the General Assembly of Georgia notes that the very Congress that submitted the Fourteenth Amendment for ratification established separate schools in the District of Columbia and that in more than one instance the same State Legislatures that ratified the Fourteenth Amendment also provided for systems of racially separate public schools;
That the General Assembly of Georgia denies that the Supreme Court of the United States had the right which it asserted in the school cases decided by it on May 17, 1954, to enlarge the language and meaning of the compact by the States in an effort to withdraw from the States powers reserved to them and as daily exercised by them for almost a century;
That a question of contested power has arisen; the Supreme Court of the United States asserts, for its part, that the States did in fact prohibit unto themselves the power to maintain racially separate public institutions and the State of Georgia, for its part, asserts that it and its sister States have never surrendered such right;
That this assertion upon the part of the Supreme Court of the United States, accompanied by threats of coercion and compulsion against the sovereign States of this Union, constitutes a deliberate, palpable, and dangerous attempt by the Court to prohibit to the States certain rights and powers never surrendered by them;
That the General Assembly of Georgia asserts that whenever the General Government attempts to engage in the deliberate, palpable and dangerous exercise of powers not granted to it, the States who are parties to the compact have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties appertaining to them;
36

That failure on the part of this State thus to assert its clear rights would be construed as acquiesence in the surrender thereof; and that such submissive acquiesence to the seizure of one right would in the end lead to the surrender of all rights, and inevitably to the consolidation of the States into one sovereignty, contrary to the sacred compact by which this Union of States was created;
That the question of contested power asserted in this resolution is not within the province of the Court to determine because the Court itself seeks to usurp the powers which have been reserved to the States, and, therefore, under these circumstances, the judgment of all of the parties to the compact must be sought to resolve the question. The Supreme Court is not a party to the compact, but a creature of the compact and the question of contested power should not be settled by the creature seeking to usurp the power, but by the parties to the compact who are the people of the respective States in whom ultimate sovereignty finally reposes;
That the legislation making provision for grants for the benefit of children of school age for educational purposes, as authorized by the Amendment ratified by the people at the General Election held in November, 1954, whereby Section 13 was added to Article VIII of the Georgia Constitution, will enable the people themselves to provide an educational establishment serviceable and satisfactory and in keeping with the social structure of the State, if the doctrine of said school cases of May 17, 1954, is eventually by naked force alone thrust upon this State;
That the doctrine of said decisions should not be forced upon the people of this State, and the public schools terminated thereby, for the Court was without jurisdiction, power or authority to entertain said school cases, or to announce the doctrine therein asserted by it;
That the Court was without jurisdiction of said cases because ( 1) the jurisdiction of the Court granted by the Constitution is limited to judicial cases in law and equity, and said cases were not of a judicial nature and character, nor did they involve controveries in law or equity, but, on the contrary, the great subjects of the controversy are of a legislative character, and not a judicial character, and are determinable only by the people themselves speaking through their legislative bodies; (2) the essential nature
37

and effect of the proceedings relating exclusively to public schools operated by and under the authority of States, and pursuant to State laws and regulations, said cases were suits against the States, and the Supreme Court was without power or authority to try said cases, brought by individuals against States, because the Constitution forbids the Court to entertain suits by individuals against a State unless the State has consented to be sued;
That if said Court had had jurisdiction and authority to try and determine said cases, it was powerless to interfere with the operation of the public schools of States, because the Constitution of the United States does not confer upon the General Government any power or authority over such schools or over the subject of education, jurisdiction over these matters being reserved to the States, nor did the States by the Fourteenth Amendment authorize any interference on the part of the Judicial Department or any other department of the Federal Government with the operation by the States of such public schools as they might in their discretion see fit to establish and operate;
That by said cases the Court announces its power to adjudge State laws unconstitutional upon the basis of the Court's opinion of such laws as tested by rules of the inexact and speculative theories of psychological knowledge, which power and authority is beyond the jurisdiction of said Court;
That if the Court is permitted to exercise the power to judge the nature and effect of a law by supposed principles of psychological theory, and to hold the statute or Constitution of a State unconstitutional because of the opinions of the Judges as to its suitability, the States will have been destroyed, and the indestructible Union of Indestructible States established by the Constitution of the United States will have ceased to exist, and in its stead the Court will have created, without jurisdiction or authority from the people, one central government of total power;
That implementing its decision of May 17, 1954, said Court on May 31, 1955, upon further consideration of said cases, said: "All provisions of Federal, State, or local law ... must yield" to said decision of May 17, 1954; said Court thereby presuming arrogantly to give orders to the State of Georgia;
That it is clear that said Court has deliberately resolved to
38

disobey the Constitution of the United States, and to flout and defy the supreme law of the land;
That the State of Georgia has the right to operate and maintain a public school system utilizing such educational methods therein as in her judgment are conducive to the welfare of those to be educated and the people of the State generally, this being a governmental responsibility which the State has assumed lawfully, and her rights in this respect have not in any wise been delegated to the Central Government, but, on the contrary, she and the other States have reserved such matters to themselves by the terms of the Tenth Amendment. Being possessed of this lawful right, the State of Georgia is possessed of power to repel every unlawful interference therewith;
That the duty and responsibility of protecting life, property and the priceless possessions of freedom rests upon the Government of Georgia as to all those within her territorial limits. The State alone has this responsibility. Laboring under this high obligation she is possessed of the means to effectuate it. It is the duty of the State to flagrant cases such as this to interpose its powers between its people and the effort of said Court to assert an unlawful dominion over them;
Therefore, be it further resolved by the House of Representatives, the Senate concurring:
First: That said decisions and orders of the Supreme Court of the United States relating to separation of the races in the public institutions of a State as announced and promulgated by said Court on May 17, 1954, and May 31, 1955, are null, void and of no force or effect;
Second: That hereby there is declared the firm intention of this State to take all appropriate measures honorably and constitutionally available to the State, to avoid this illegal encroachment upon the rights of her people;
Third: That we urge upon our sister States firm and deliberate efforts upon their part to check this and further encroachment on the part of the General Government, and on the part of said Court through judicial legislation, upon the reserved powers of all the States, that by united efforts the States may be preserved;
Fourth: That a copy of this Resolution be transmitted by His
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Excellency The Governor to the Governor and Legislature of each of the other States, to the President of the United States, to each of the Houses of Congress, to Georgia's Representatives and Senators in the Congress, and to the Supreme Court of the United States for its information.

MARVIN E. MOATE
Speaker of the House
S. ERNEST VANDIVER
President of the Senate

J. W. BOONE Clerk of the House
GEORGE D. STEWART Secretary of the Senate

Approved March 9, 1956
MARVIN GRIF:f'IN
Governor
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