On Wednesday, a South Carolina court made national news when it vacated the civil rights-era convictions of a group of lunch counter sit-in protesters. The convictions stemmed from a protest in Rock Hill, South Carolina, on January 31, 1961. A group of African American students from Friendship College took seats at a local five-and-dime lunch counter, which had a policy of only allowing whites to be seated at the counter. The manager called the police and the protesters were arrested on trespassing charges. After being convicted in the local court, the judge gave the students a choice of paying a $100 fine or serving a thirty day prison sentence. The group that became known as the “Friendship Nine” chose prison.
(Numerous news accounts erroneously assert that the Friendship Nine initiated the “jail, no bail” strategy in the sit-in movement. This strategy had already been in use since the previous spring.)
On Monday, a lawyer for the Friendship Nine introduced a motion in court that asked for a new trial and acquittal, arguing that the convictions had been “predicated upon values and beliefs that have since been deemed to violate the fundamental guarantees of the United States Constitution.”
The motion’s assertion that the convictions “have since been deemed” unconstitutional is not obviously correct, however. The Supreme Court had numerous opportunities in the early 1960s to declare as much, but a majority of the justices never agreed to this conclusion. The Court, that is, never squarely held that a state violated the equal protection clause of the Fourteenth Amendment when it arrested and convicted on trespass charges someone who refused to leave a privately owned public accommodation, such as a drug store lunch counter, because the business had a whites-only service policy.
Between 1961 and 1964, the Supreme Court justices faced round after round of appeals of sit-in protesters who had been convicted on trespass or disorderly conduct charges. The sit-in cases were the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in these cases. The Court found ways to side with the students, overturning their convictions on narrow, fact-based grounds, while avoiding the looming constitutional issue. In late 1963, in the case of Bell v. Maryland, when another minimalist opinion appeared impossible, a majority of the Court, led by Justice Hugo Black, was prepared to explicitly reject the students’ constitutional claim and hold that the Constitution did not require racially equal access to public accommodations. This outcome was only averted when, in the spring of 1964, with Congress poised to pass the Civil Rights Act, Justice Black’s majority dissolved, and a fractured Court issued yet another narrow opinion, with no majority to resolve the constitutional question one way or the other.
This is not to say that the motion’s assertion–that the Friendship Nine’s trespassing convictions have been deemed unconstitutional–is wrong. But to defend this assertion requires a broader conception of constitutionalism than the proclamations of the Supreme Court. One might look to Congress and specifically to the Civil Rights Act of 1964 as establishing the unconstitutionality of racial discrimination in public accommodations. With this landmark legislation, Congress prohibited racial discrimination in public accommodations across the nation. Ultimately, the legislative arena proved more receptive than the judiciary to the blend of morality, politics, and constitutional principle that characterized public debate over the sit-ins.
We are used to looking to the judiciary for answers to contested constitutional questions; to look to Congress for this purpose is more unusual, more controversial. But in this particular case it makes sense to do so. At the time of Bell, a majority of the Court was open to the possibility of holding the sit-in convictions a violation of the equal protection clause. The fact that this majority never solidified into an opinion of the Court had more to do with concerns about doctrinal constraints, the institutional competency of the Court, and the impending passage of the Civil Rights Act than with substantive disagreement with the underlying constitutional principle. Although the drafters of the Civil Rights Act ultimately relied on Congress’ Commerce Power as the basis for the law, many executive branch lawyers and members of Congress would have preferred to rest the law on Congress’ authority to enforce the provisions of the Fourteenth Amendment—a path that would have more squarely presented a congressional conclusion that the sit-in prosecutions ran afoul of the Constitution. And, as I have argued at length elsewhere, it is pretty clear that the Court would still have upheld the Civil Rights Act if it were based on the Fourteenth Amendment enforcement power rather than the Commerce Clause.
The Friendship Nine’s claim that their conviction violated the Constitution seems so right and so true today. Yet if we believe it to be so, it is worth considering the vision of constitutional development on which this claim depends. Under this vision, the courts, the traditional focal point for accounts of constitutional disputes, play a central role in this story, but they are ultimately just one actor among many.