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excerpted from:  Randall Kennedy, Martin Luther King's Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law Journal 999-1067 (April, 1989)(397 Footnotes Omitted)


I have had a little something to do with lawyers since the 1955 Montgomery bus boycott.
Martin Luther King, Jr. [1]



Martin Luther King, Jr., demonstrated a keen appreciation for both the power and the limits of law. The movement in which he played such a central role--the Civil Rights Movement of 1955-1968--produced, as Harry Kalven, Jr. once quipped, 'the first revolution in history conducted, so to speak, on advice of counsel.' King displayed attentiveness to legal symbolism in the first speech that he gave as a civil rights leader. Urging the blacks of Montgomery, Alabama, to boycott the city's buses to protest racially-motivated mistreatment, he invoked legal and religious icons to inspire their collective defiance. 'We are not wrong,' he told his audience at the Holt Street Baptist Church on the evening of December 5, 1955, because 'if we are wrong, the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.'

Beginning that evening, and over the next thirteen years, King's activities placed him at or near the center of controversies that dramatically altered the nation's legal landscape. From the Montgomery Bus Boycott arose Gayle v. Browder, the Supreme Court decision that invalidated de jure segregation in intrastate transportation and thereby effectively overruled Plessy v. Ferguson. Protest campaigns in Birmingham and Selma constituted crucial links in the chain of events that culminated in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Supreme Court decisions upholding these legislative initiatives.

These and related campaigns also gave rise to cases that significantly affected legal doctrines regulating freedom of expression. King claimed repeatedly that 'the great glory of American democracy is the right to protest for rights.' The Civil Rights Movement tested his hypothesis by staging protest activities that forced courts to create or refine doctrine involving a wide array of First Amendment concerns, including symbolic speech, the public forum, freedom of association, libel, and rules governing mass demonstrations. The disciplined peacefulness of the civil rights activists and the underlying decency of their demands helped to create an atmosphere conducive to judicial liberality. The result was not only a beneficial transformation in the substantive law of race relations, but also a blossoming of libertarian themes in First Amendment jurisprudence. In the context of the First Amendment, as in many other areas, the struggle for racial justice produced ramifications that extended far beyond its point of origin. Once loosed, liberty, like equality, was an idea not easily cabined.

On the other hand, King and his allies suffered significant defeats in the legislative, executive, and judicial arenas. They were forced to compromise on key issues in order to obtain passage of federal civil rights legislation. Activists discovered that the willingness of Presidents Kennedy and Johnson to invest political capital on behalf of the Movement often lagged behind their promises. And Movement activists failed to persuade the Supreme Court that racial discrimination in places of public accommodation violated the federal constitution; the outlawing of 'private' discrimination in businesses open to the public occurred through the intervention of the Civil Rights Act of 1964, a less aggressive law in certain respects than the Reconstruction-era legislation it was meant to replace.

Despite the centrality of King's role, it would be erroneous to conflate, without qualification, his career and the history of the Movement. The Movement consisted of a mass of local initiatives that received inspiration and guidance from a striking array of figures who, at one time or another, diverged quite markedly from King. One thinks, for instance, of such vital leaders as Roy Wilkins, James Farmer, Robert Moses, John Lewis, Stokely Carmichael, Fred Shuttlesworth, and Fannie Lou Hamer. King, however, is the person most widely identified in the public imagination with the Civil Rights Movement. The Movement would probably have transformed America without his presence. But it is hard to believe that history's replacement could have offered the eloquence, vision, and moral gravity that King provided.

This Article focuses upon legal issues that shaped and were in turn shaped by Martin Luther King's first campaign as a civil rights leader: the boycott in 1955-1956 of segregated buses in Montgomery, Alabama. In Section I, I describe the legal status of the Negro in the South in 1955. This overview portrays the legal and extra-legal situation southern blacks faced on the eve of the boycott and provides a baseline against which to measure what King and the Movement accomplished.

In Section II, I describe the origins and early development of the Montgomery Bus Boycott and of the organization that guided it, the Montgomery Improvement Association (MIA), as well as King's entrance into national prominence as the MIA's president. I emphasize two points in particular. The first is the striking modesty of the protest's initial demands. Although the boycott began one and a half years after the Supreme Court invalidated de jure segregation in public schooling, King and the MIA did not initially demand the abolition of de jure segregation on Montgomery's buses; they primarily demanded courtesy and formal even-handedness, taking for granted the continued existence of racial separation. The second is the considerable extent to which the white power structure, exemplified by the bus company's attorney, a Harvard-trained lawyer named Jack Crenshaw, inadvertently radicalized King and the MIA. Crenshaw stubbornly maintained that the MIA's initial requests were impossible to satisfy within the confines of existing state and local law. His reading of the relevant statutes cut off avenues of compromise. In response, and to many people's surprise, the leaders of the MIA demanded more--and won more--than they had originally even contemplated.

In Section III, I discuss litigation ignited by the boycott. I focus on two cases in particular. State v. King involved King's conviction for violating an Alabama anti-boycotting statute. I examine his prosecution as a socio-political event and show how, ironically, it furthered the cause of the protest. I then examine the doctrinal issues raised by the prosecution--statutory vagueness, selective prosecution, the authority of states to regulate political boycotts--and relate them to constitutional law as it stood in 1956 and as it stands today. In the second case, Gayle v. Browder, the Supreme Court affirmed a three-judge district court's decision striking down state and local statutes in Alabama requiring racial segregation aboard intrastate vehicles. I examine the difficulties that faced the three southern, white judges who had to decide whether to extend Brown, and the strategy behind the Supreme Court's disposition of the case.

Finally, in Section IV, I explore the achievements of the boycott and its associated litigation. Although I note in some detail the limits of the boycott's short run accomplishments, I conclude by emphasizing the manifold ways in which, over the long run, the experiences gained, the attention won, and the inspiration generated by King and his associates strengthened a Movement that produced tremendous changes that continue to reverberate in our society. Viewed against a backdrop of slightly more than thirty years, the boycott in Montgomery can rightly be deemed not only the starting point of Martin Luther King's public career but also, perhaps, its most impressive moment.

Guiding my analysis of specific events, developments, and problems are two broad methodological aims. The first is to add a lawyer's vision to the historical study of the Civil Rights Movement between 1955 and 1968. During the 1960's, the Movement was the subject of considerable commentary by practicing attorneys and legal academics. Since then, it has received relatively little attention from the legal community. The most illuminating recent studies have mainly consisted of work by historians, journalists, political scientists, and sociologists. I draw upon that work liberally in the pages that follow and hope that my study will nourish such undertakings. The reason why reappraisal of the Movement from the perspective of a legal academic is potentially enlightening is that, all too often, scholars without legal training either shy away from questions that appear to require technical legal expertise or neglect topics that are likely to be of special concern to the legal imagination: the substance and application of legal doctrine, the relationship between case law at a given point in the past and prevailing contemporary trends, litigation strategies, and lawyerly performance.

My second aim is to write about the legal ramifications of the struggle against segregation without falling victim to either the illusion that what happened had to happen or the notion that the losing side--the side supporting de jure segregation--was wholly bereft of morality or reason. Both of these tendencies represent seductive strands of 'victor's history' which, if indulged, obscure important aspects of the past. I attempt to respect segregationists in the sense of taking their ideas seriously; after all, Martin Luther King did. Some segregationists thought long and hard about the peculiar form of racial hierarchy they sought to maintain. We can benefit from attention to their views, particularly their insistence that segregation represented 'a way of life.' That conception of segregation is far more attuned to the fluid, hydra-headed nature of the segregation regime than the static and formalistic conception that has so thoroughly and unfortunately dominated the legal imagination.

[p] Assistant Professor, Harvard Law School.
[1]. King, Foreword to W. KUNSTLER, DEEP IN MY HEART. at xxi (1966).