The Supreme Court - 4 July 1980
Just over 100 years ago, a train was whistling into a wide valley through the black hills of South Dakota on the western plains. And the engineer saw ahead, obscuring the track, what looked like a vast, a biblical, cloud of locusts.
The train had to slow down for quite a time, in fact, for about ten hours till the track was clear, because the buffalo herd was unbroken for 120 miles. This week, the Supreme Court of the United States took note of what that slowdown did to the western states.
Some months ago, a man arriving on an early morning plane at Fort Lauderdale, Florida, was asked to walk through a security detector device, which normally everybody has to do before boarding a plane. But the device was not the usual metal detector – it's known as a drug courier profile, and will evidently detect powder hidden on the person. The man was arrested, and found to be carrying cocaine. He protested, and this week the Supreme Court ruled that the federal agents using a device which could routinely stop innocent persons, had no constitutional right to presume reasonable suspicion.
One year ago, a judge in Virginia decided, with the approval of both parties to a trial, that the defendant would get a fairer trial if the press was excluded from the court proceedings. This week, the Supreme Court ended a great furore in the press by ruling that the right of the public and the press to attend to criminal trials is absolutely guaranteed by the first amendment to the Constitution which says, among other things, "Congress shall make no law of abridging the freedom of speech, or of the press".
Two years ago, the New York state legislator passed a bill to start a public works programme. It was to cost $4billion, of which a hefty share would be contributed by the government, the federal government, as a federal grant. The bill set aside 10% of the federal contribution for what it called "minority businesses" – that's to say, for businesses whose majority stock is controlled by blacks, or Asian Americans (nowadays most often Vietnam refugees), or Hispanic Americans (in New York today, almost always Puerto Ricans), or other minorities.
A contractor sued, on the ground – which has been a national issue for decades – that to give preference to any race is unconstitutional, since the 14th amendment gives to all citizens the equal protection of the laws. This famous phrase has been cited over the past century to proclaim all sorts of rights, and even defend palpable injustices.
At one time it was cited by the court, to defend the right of children to work fourteen hours a day. Then, only a quarter of a century ago, negros acquired the equal protection of the laws – the right to use public facilities, theatres, buses, toilets, restaurants and so on, on an equal basis, when the court decided that the Constitution made no distinction between the races –- the Constitution was, as a celebrated judge said, colour blind.
Now, since the New York and other public works programmes contactors who hire workers on the ground of competence alone, have thrown the phrase back in the court's face. The Constitution, remember they say, is colour blind – it doesn’t say you must give preferential treatment, 5%, 10% or any other quota, to blacks or browns or yellows, or for that matter, whites.
I need hardly say that this argument is used mainly by contractors who hire a huge majority of whites, because they tend on the whole to be better qualified.
Well this week the Supreme Court upheld the New York state bill, setting aside 10% of the budget for minority businesses. This time, and for the first time, the court supported the view that black leaders have been taking for two decades, that equality of opportunity between blacks and whites is only possible in a society where blacks and whites start at birth with equal opportunities of education and training.
So the court took a long backward view and decided that because of generations of injustice and of unequal access to education, minorities in general, and blacks in particular, have started late in the race for jobs, therefore, they need special encouragement. Therefore, said a majority of the nine judges, it is right and fair – excuse me, they don’t talk like that – it is constitutional under the equal protection of the laws clause, to give something more than equal preference to races that have suffered for so long from unequal treatment.
The 10% concession matches the roughly 10% black minority in this country. The judges did not say that from now on all contracts that set aside preferential funds must be honoured. In this instance, the majority ruled, this limited programme is a necessary step towards fulfilling the constitution's requirement of equality of economic opportunity. There was rejoicing among black people though it was limited rejoicing among some, one black worker said, "Ten percent, twenty percent, why not thirty, forty percent?" But, 10% beats nothing.
This, you will gather, has been a great week – an historically influential week anyway – for the Supreme Court. And I have mentioned four cases that were ruled on to show how wide and deep is the jurisdiction of the court over American life.
You have to remember at all times that the Supreme Court is independent of the Congress and the presidency, and all state and municipal governments – it is the final protector of the citizen's individual rights against any encroachment by other individuals, by companies, by state laws, by federal laws, by the Congress, the armed forces, by – as we saw only a year or two ago – by the president himself. And so, you’d expect the court to rule on cases involving contracts, the rights of workers, jury trials, the free press, and so on.
Foreigners – Europeans more than most – often give grudging admiration to the Supreme Court because they doubt that a modern society can be sensibly governed by a document, the American Constitution, written and ratified in the 1780s.
Well, the Bible was written long before that and there are societies, maybe most of the societies of this world, which base their laws in it. And need I say that many millions of mature people run their lives, or try to, on the injunctions of the Old or the New Testaments.
Of course, to make a text from the psalms or the Sermon on the Mount apply today, we do require thousands of pulpits, and millions of parsons handing out Sabbath sermons. The United States Supreme Court is a collective parson, referring always to the holy writ of the 1780s, and giving it the modern interpretation according, as Justice Holmes said, to the moral climate of the time.
Now, you must have wondered about that train in the 1860s crossing the valley through the Black Hills of South Dakota. I said that this week the Supreme Court, took note of it. Well, it is conceivable that the nine judges have never heard of it, but they had to deal this week with the historic consequence of too many buffalo on the plains that the white man wanted to settle.
Pretty soon after that train incident and similar incidents, the government decided that the buffalo was an immense nuisance and a handicap to settlement by the homesteaders, the people, often poor farmers from Europe, who by act of Congress were given 168 acres, free – to be theirs for keeps – if, after five years, they had a going crop. So the railroad companies hired frontiersmen to slaughter the buffalo systematically. In the late 1860s, the most famous of these was one William Frederick Cody – he personally disposed of 5,000 buffalo in 17 months and earned himself the immortal title of Buffalo Bill.
Well, as the whites moved in, the Indian tribes of the west saw some of those whites moving into what had been set aside as their territory. The Sioux in particular were alarmed at the threat of white settlement in the Black Hills of South Dakota. In 1868, after some sporadic battles, the United States signed a treaty with the Sioux, setting apart their reservation for "the absolute and undisturbed use and occupation of the Indians".
The treaty was honoured for a few years until, unfortunately for the Indians, gold was discovered in the Black Hills by two prospectors going along with a military expedition, under one General George Custer. The first gold rushes there were 38 persons, including a woman. The army arrested them for intruding on Indian territory.
But once the word got out, far and wide, there was a flood of invaders, the military was powerless to stop them all and in 1877 Congress formerly abrogated the treaty. In a word, the Sioux had been deprived of their lands and left to shift for themselves, which they have been doing ever since.
And ever since, whenever the topic has come up, the government has been able to say, correctly, that the Indians actually ceded their lands back to the government of the United States. There was not much else they could do – the army had taken from them their weapons, and their horses, which were the precious means to their mobility, to their hunting of the disappearing buffalo.
This fact was cited in the case that came this week before the Supreme Court. Its title on the docket is United States of America v The Sioux Nation. The Sioux maintained that they had been unjustly deprived of seven million acres, once known as the Great Sioux Reservation of South Dakota.
They sued on the ground of the 5th amendment, which says that private property shall not be taken for public use without just compensation. The Sioux asked either for their lands back, or just compensation. The government argued that for about 75 years they gave the Sioux $43million in food and provisions. The Supreme Court ruled it was not enough. The court awarded the Sioux – 60,000 of them in eight tribes – $122million, being 5% interest for 103 years, on an initial land value of $17.5million. The Sioux were in council this weekend wondering whether to take it or sue again for the land itself.
On 1 October, 1976, a 24-year-old woman from Brooklyn, Cora McRae, went to a clinic and asked for an abortion. For the Supreme Court’s decision about Cora McRae be with us, on this station, same time, next week.
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