Gomillion v. Lightfoot – Oral Argument – October 19, 1960

Media for Gomillion v. Lightfoot

Audio Transcription for Oral Argument – October 18, 1960 in Gomillion v. Lightfoot

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Earl Warren:

C. G. Gomillion et al., Petitioners, versus Phil M. Lightfoot, as Mayor of the City of Tuskegee.

Mr. Carter, you may continue your argument.

Robert L. Carter:

If I may recapitulate briefly from where we were when the argument broke off yesterday.

It’s our contention that Act 140, the statute herein question by redefining the boundaries of Tuskegee in the bizarre fashion indicated from the back from — in the chart on the back that has — has accomplished a purposeful and intentional discrimination against Negroes as a class.

The Act has cast outside of the city, all of the qualified Negro voters with — with the exception of four or five and has reduced Tuskegee from a city of approximately 7000 persons of whom about five — in excess of 5000 more Negroes and 1300 white to a population of approximately 1310 white persons and at best, a few hundred Negroes.

The Negroes, who are left in the city, are left in the city only because of the fact that they could not have been cast out of the city without affecting white persons.

Now, it’s our contention that this is a purposeful and intentional discrimination and that this case is governed by the discrimination cases and that the rule of law applicable to — to them controls here that the allegations which we have made — make out of case which is justiciable and actionable in the court and that we are entitled to a hearing in the court below.

Now, we —

Felix Frankfurter:

You didn’t get — you didn’t have, Mr. Gray, you didn’t have the exact number of Negroes that were left in the redistricting.

Robert L. Carter:

No, no —

Felix Frankfurter:

Because there are a few hundreds, does that mean 200 or 800?

Robert L. Carter:

We don’t know, if the Court please.

We know that they — and we alleged in our complaint that only four or five qualified electors or qualified voters were left.

But we do not, as Mr. Gray indicated yesterday, have the exact census figures to be able to tell the Court with exactitude how many Negroes were left in the city.

Felix Frankfurter:

Are they clustered in some particular place on that map?

Robert L. Carter:

They are not clustered on the map.

They are — they live in — in some parts of this various area here.

Now, our contention is —

Felix Frankfurter:

What is that area?

Is that a — what kind of an area is that?

Robert L. Carter:

Well, what I —

Felix Frankfurter:

It seems to be grossly settled.

Robert L. Carter:

— what I mean is that some of them are living on this side of the (Inaudible) and they live with — within the confines of this.

Felix Frankfurter:

Not in the center of the city, Mr. Carter?

Robert L. Carter:

Not in the center of the city.

Felix Frankfurter:

Yes.

Hugo L. Black:

Suppose they had reduced it on a half that much, would you see any difference?

Robert L. Carter:

Reduced it only half —

Hugo L. Black:

Reduced the size of the city on a half that much.

Robert L. Carter:

That it has done now and therefore left more Negroes in — inside –inside than are now?

Hugo L. Black:

Yes.

Robert L. Carter:

Is that question?

Well, I think, if the Court please, I think I would have a more difficult question in terms of showing that there was discrimination.

Hugo L. Black:

You mean proof that they —

Robert L. Carter:

Proof, proof.

Hugo L. Black:

— of the purpose.

Robert L. Carter:

That’s right sir.

Hugo L. Black:

So, you finally get back to proof of the purpose?

Robert L. Carter:

Proof of the purpose.

But I also have, if the Court please, the — the natural consequences that we think we can show the fact that this cannot be disputed but the facts of the matter are that all of these Negro neighborhoods had been cast out of the city.

This is —

Hugo L. Black:

Suppose — suppose, they would split up, would decide to split up a county whether that way.

Would you say it is dividing up the county in two parts, if it could be shown they did it because they wanted to get the colored people in one county and the white people on another that that would violate the Constitution?

Robert L. Carter:

Yes sir, I do.

Hugo L. Black:

You would.

Robert L. Carter:

I do.

I think that that would violate the Constitution because I think that the boundary line would be — would be drawn on the basis of race and I think that this is violative of the constitutional — of prosecution.

Hugo L. Black:

The only you should get to that, of course, would be to show that was the purpose.

Robert L. Carter:

Well, the only way I would get to that would be to show that that was the purpose but I can also get to it to show that that was the effect.

Hugo L. Black:

Well, suppose that is the effect to the State, divides up two counties.

One county and then two or three, and that the effect of it is to live predominant, live one of the counties predominant to white, the other predominant to colors.

Robert L. Carter:

I think that if — if I can show that in terms of the facts that I would be able to show discrimination because I believe that — that if the — if the effect, if the question of proof is the effect, this is an incidental effect, this is something else.

But in this, where this question we have before the Court, with the way these lines are growing as they live in and out of the — in and out of the city then the natural effect, this cannot be an incident of where there’s occurring, this is — this has to be the natural consequences of the Act.

Hugo L. Black:

What your — what argument gets down to is this, isn’t it?

That whether it is shown by the facts of the way that counties divided a city is to the — that it leaves one part of it predominant to white which had been predominant to color.

That is enough to deprive the State, invalid to create — to the take that part of land out of the municipality.

Robert L. Carter:

Well, that is enough, I think, for us to go to court that —

Hugo L. Black:

That the State doesn’t have a right to adopt that policy.

Robert L. Carter:

That’s right.

Hugo L. Black:

It gets down to a purpose of the policy.

Hugo L. Black:

What do you do with Colegrove and Green on that?

Robert L. Carter:

Well, we don’t believe, if the Court please, we don’t think that the Colegrove doctrine has anything to do with this problem because —

Hugo L. Black:

Did you ask us to overrule Colegrove and Green?

Robert L. Carter:

We do not.

We —

Hugo L. Black:

You asked us not to reconsider it?

Robert L. Carter:

We — we think that this has no —

Hugo L. Black:

Suppose one — suppose one was at the opinion, it should have to reconsider it.

Robert L. Carter:

Well, if —

Hugo L. Black:

Are you asking that that be done?

Robert L. Carter:

If — if the only way we can reach — if the only — if the Court concludes that the only way they can reach our problem is to overrule Colegrove versus Green, we would have to take that position.

But we do not believe that we are — but that — at the present time that we are in that position to —

Hugo L. Black:

In other words, you’re not asking us to.

Am I to understand that you’re not asking us to?

Robert L. Carter:

That’s right, sir.

We’re not asking to — to overrule Colegrove versus Green.

Our contention is that this is not a reapportionment case and that the Colegrove doctrine has nothing to do with the problems which are raised here.

We take the position that this is purely a race discrimination case and that it is not involved in the Colegrove versus Green problem at all.

Felix Frankfurter:

Mr. Carter, suppose I go on with Justice Black’s hypothetical case, an existing county happens to natural coagulation, to a natural aggregation to have predominantly in one half of it white, said reduced and then in the other half, colored city and the State then splits it into half but each half continues to have voting right.

Nothing is done to — to takeaway the — either directly or to any manipulating of the electoral machinery, to potentiality or the opportunity for the exercise of the franchise.

What will you do with that case?

Robert L. Carter:

Well, as I said to Mr. Justice Black, I don’t believe that the State can adopt to policy of — which would have — would amount to divide the county or any territorial unit in order to generalize it in terms of white and Negro.

I think that this is forbidden by the county —

Felix Frankfurter:

Forbidden by what, the Equal Protection Clause?

Robert L. Carter:

Forbidden — I think this is forbidden by the Equal Protection Clause.

In your instance, it would be — it seem to me would be forbidden by the Equal Protection Clause.

I wouldn’t have the Fifteenth Amendment but I think it would be forbidden by the Equal Protection Clause —

Felix Frankfurter:

I suppose you have a county that divides in the same way not according to racial line but according to economic preoccupations or interests.

Half of it happens to be industrial and the other half is agricultural and the same division has been made.

What do you do with that?

Robert L. Carter:

Well, that — that is — is a more difficult question but the problem I have — I would think that that — that that case in that particular kind of case that I would be — that you would be able to show that this was a denial of Equal Protection.

But at the same time, it seems to me, if the Court please, there would — there might be differences in terms of this, in terms of whether this is an equal protection argument.

I don’t believe that we have that problem when — when race is involved because of the Fourteenth Amendment and because of its clear provisions in respect to what this Court has had.

So that where race is involved, our contention is in this, the race discrimination case, we have a clear protection under the Fourteenth Amendment which would forbid the State from doing exactly what — what you suggest is my opinion.

Felix Frankfurter:

But here, you — you argue yesterday that you haven’t got a kind of admixture here because the redistricting throws out practically every, theretofore, qualified Negro voters.

Robert L. Carter:

Yes, sir.

Felix Frankfurter:

You said yesterday, how many were left?

Robert L. Carter:

About — we — we say in our brief, we — we — approximately three or four.

Felix Frankfurter:

Does three or four and all of the 400 that are — if all of them with — with negligibly exceptions were recalled out?

Robert L. Carter:

Yes, sir.

So that in this case, we —

Hugo L. Black:

Well, you said it throws them out of the right to vote?

Robert L. Carter:

It throws them out of the right to vote in — in the municipality —

Hugo L. Black:

In the area that they have — that has been changed.

Robert L. Carter:

That is right.

Felix Frankfurter:

What’s the consequences that the Chief Justice indicated yesterday in his first (Inaudible) but they haven’t got fire protection if they haven’t got — they’ve got a shrinking of police protection if any and all the other amenities of a municipal life.

Robert L. Carter:

That’s right plus the fact that they — they do not have the right to participate in the rules — in making the rules, regulations which would govern them in terms to the kinds of protection that they would have.

Hugo L. Black:

Well, they have a county governor, is it not?

Robert L. Carter:

Yes, sir.

They have a — they have a county governor.

Hugo L. Black:

Your position I think it’s better to place it squarely on the fact as they actually are, from (Inaudible)

Your position seems to me that the unit, when a State decide in the exercise of its policy or polity, if you wish to call it polity, at least the Government (Inaudible)

If you wish to call it policy or policies, has the policy wants to change a municipality, make it smaller, cut off the lives part of it, that it does not take away the life of the people that have taken out of that municipality to vote.

They are left with the — such right to vote as those in the county outside of the municipality here.

I presumed what you have to mean is in this.

Although the State has arrived to change the area, about the city, that have to look at its purpose that you are arguing, to see and to define that the perpetua to put colored people out of that area so that they could not vote in that area although they could vote outside of that area, that that violates the equal protection in our view, whichever authorities it does.

I agree, that’s the real fact, isn’t it?

Robert L. Carter:

I agree with that, yes sir and this is —

Felix Frankfurter:

Have you — have you got a heavier burden, have you got a heavier burden in this case than the offer of truth that your allegations (Inaudible) under the facts of this particular case without making the generalization in a figure, namely that there were 400 qualified Negro voters and a redistricting took all the 400 out with reference to the enjoyment they, theretofore, had in the City of Tuskegee.

Have you got a greater burden in that, in this case?

Robert L. Carter:

I — we don’t — we don’t think so and this is the —

Hugo L. Black:

Well, what difference does it make if they have unconstitutionally deprived these people with the right to vote whether it was 400, 3000 or six.

If the purpose is to do this and the purpose can validates it as a discrimination, why are not six entitled to protection the same as 425 or —

Robert L. Carter:

Well —

Hugo L. Black:

— 3000?

Robert L. Carter:

I think that the 400 —

Hugo L. Black:

Now, then we’ve held that with reference to one man who’s deprived, that was jury found.

Robert L. Carter:

Yes sir, but I think that the — in terms of this case if Your Honor pleases.

The fact that 400, that 397 or 396 of 400 were cast out, it seems to — it seems to me to — to lessen the burden that we have in terms of —

Hugo L. Black:

Of showing the purpose.

Robert L. Carter:

That’s right.

Hugo L. Black:

You — you using it as an evidence —

Robert L. Carter:

Yes, sir, that’s right.

Hugo L. Black:

— to show the purpose.

You finally get back to whether or not it violates the Constitution for a State to reduce the area of a city for the purpose of taking colored voters out of that city, throwing them out into the county where they have their own — the rights to vote there or the right to vote with other things in the county with this.

That’s where you finally get through —

Robert L. Carter:

Yes, sir.

Hugo L. Black:

— with that regard to the number, isn’t it?

Robert L. Carter:

That’s right.

Hugo L. Black:

What you’re talking about, narrowly is, the use of a number for the proof.

Robert L. Carter:

That’s right.

Hugo L. Black:

That if it’s provable, I believe I can understand your argument.

Robert L. Carter:

That’s right.

Felix Frankfurter:

Well of course, if there’s an unconstitutional deprivation, there’s an unconstitutional deprivation, but the fact may determine that there isn’t an unconstitutional deprivation.

Robert L. Carter:

And this is — well, this is why in our judgment since we had 396 persons that we feel that we have no problem of — of showing that this — this Act that we get to deprive or unable to go to prove, we think that we had no — no problem of showing that this Act is unconstitutional because we feel that we have overwhelming evidence to demonstrate that —

Felix Frankfurter:

You thought the State here that the — the mitigation derived from the fact the State doesn’t affect everything you say so, the external fact, I mean disability, and there is no explanation for this other than the fact that having done it, isn’t that right?

Robert L. Carter:

That’s right.

Felix Frankfurter:

In fact, in the old fashion language, they demurrer for the facts.

Robert L. Carter:

That’s right.

Felix Frankfurter:

So we have here a clear case of the demurrer for the facts which you’re ready to prove, so you don’t have to prove it.

Robert L. Carter:

That’s right.

Earl Warren:

Mr. Carter, suppose there were — there were no voters at all registered in the old city, that is no Negro voters, and they had accomplished this same result.

Would you be in any different positions?

Robert L. Carter:

Well, I couldn’t — at that point, what we would have to — to show — well, I think that we would have a Fifteenth Amendment argument because they would not be entitled with the vote in the — in the old city and we would have an equal protection and due process argument as well in this Fourteenth Amendment because the line was drawn as we suggest on the basis of race.

I don’t think that would change our position.

It would, as Mr. Justice Black suggests, change the nature of the evidence that we would have to — to bring on to prove that this was the intent of the Act.

Hugo L. Black:

It gets — your case gets down, doesn’t not, to where you’ve got to look at the area, that evidence he (Inaudible) judgment views to show the purpose to legislation in passing this particular law.

Robert L. Carter:

Yes, sir.

Now —

William J. Brennan, Jr.:

But may I ask Mr. Carter, that any colored residence in the city has now to mind who are not voters?

Robert L. Carter:

Well, I’m sure — we’re sure that there are as I — the terms that indicate a little earlier.

We really — we don’t know.

We attempted to get the exact figures as to how many Negroes were in the city at the present time but census figures are not available and will not be available until December.

We have alleged in our complaint and this has been — has been taken as truth and only three or four qualified voters are left in the city.

Now, —

William J. Brennan, Jr.:

But there maybe number perhaps —

Robert L. Carter:

There maybe.

William J. Brennan, Jr.:

— about Negroes residing in the city who are not voters.

Robert L. Carter:

That’s right sir.

Who — who were not able to be cast out by the — by — in terms of these lines without taking quite persons outside too.

This is our contention that the only Negroes left in were those who left in, that the State could not put up without affecting white persons as well.

Potter Stewart:

Conversely Mr. Carter, are there any white people who are now resident of the county because of this reduction in the area of the municipality who used to be residents in the city but were not voters?

Robert L. Carter:

No, sir.

No white person who lived in the city has been in any way voter or not voter affected by this — this change environment.

Potter Stewart:

I have this thought in mind, the city as it used to be before the enactment of this one party, the statute was what, five, six Negro, was it not, something like that?

Robert L. Carter:

About five, yeah, five to — about five to one.

Potter Stewart:

Five to one.

Robert L. Carter:

Yes, sir.

Potter Stewart:

So that any reduction in size of the city, presumably on the — on averages which would put five Negroes into the outside of the city to everyone, white person, that is any — just that passer reduction in the size of the city?

Robert L. Carter:

Well, I’m not sure of that Justice Stewart because as you note where the Negroes live or where the — as the city is withdrawn.

Robert L. Carter:

The residents of white persons are those that are around the center, clustered around the center of the city.

The Negro neighborhoods are on the periphery — on the periphery of the city so that the reduction in this way, as they had done it this way, does not necessarily follow that there’s going to be a five (Voice Overlap) —

Potter Stewart:

It doesn’t necessarily follow it, because just perhaps statistically it’s not too big example or something —

Robert L. Carter:

Yes, sir.

Potter Stewart:

There’s no other reason.

But if you simply reduced the size of the rectangle let me say —

Robert L. Carter:

Yes, sir.

Potter Stewart:

And instead of creating a sea dragon, you made a smaller rectangle.

Robert L. Carter:

Yes.

Potter Stewart:

I gather that it — at least the ratio of five to one, people who are then in a county would prevail.

And as I say at least because you just told us that there are more Negroes on the periphery in the rectangle — of the old rectangle.

Robert L. Carter:

Now, that this would– in that kind of case but this of course is not our case because you — in that kind of case, you would have a reduction of white instead of Negroes with the case that you suggest.

In our case, we have a reduction only of Negroes and not reduction in terms of the population parties.

Potter Stewart:

Not at all of any —

Robert L. Carter:

No sir.

Potter Stewart:

— white people, whether or not they are voters.

Robert L. Carter:

No sir.

William J. Brennan, Jr.:

Well, if that’s true then I think that the ratio of five to one doesn’t — no longer obtains within the city that was withdrawn (Voice Overlap) —

Robert L. Carter:

Oh, that’s true.

That’s true.

The city that — the city as has been withdraw — withdrawn as we’ve attempted to indicate yesterday is virtually a white city, it is overwhelmingly white with — we think no more than about 200 Negroes.

William J. Brennan, Jr.:

Oh no more than about 200.

Robert L. Carter:

Yes.

We — we thought that this is a guest because we don’t know.

William J. Brennan, Jr.:

Well, that so than five to one ratio is just a reverse, doesn’t it?

Robert L. Carter:

That’s right.

Now if I may close, I wanted to indicate to the Court our position that this is — this being as we contend a — a race discrimination case.

That we think that there are no problems of the least involved here that this is not the kind of case in which there would be any question of un — any unusual problems in terms of relief as we request.

We request that the declaratory judgment which were in that matter which would hold that this — that this statute violates the Equal Protection and Due Process Clause with the Fourteenth Amendment and the proscriptions of the Fifteenth Amendment as well.

We also request an injunction to enjoin the enforcement of the statute and an injunction to restrain state officials from keeping the — the petitioners and other Negroes from voting in the municipal elections in Tuskegee.

Robert L. Carter:

As far as we are concerned, we think that is the same kind of relief which this Court has normally granted in cases of this kind and that therefore it offers no peculiar difficult problems of equitable relief.

For this reason, if the Court please, we think that we have presented a case which comes within the race discrimination cases and that we have presented a case which requires under the rules and the doctrine of about — of constitutional doctrine which has been announced by this Court that the State cannot discriminate against persons because of their because of their race and color.

William J. Brennan, Jr.:

Well Mr. Carter, if you had a declaratory judgment that one quoted, it’s constitutionally invalid of the federal constitution, do you need all the terms that (Inaudible), do you need restraints of any kind?

If that was so, would that — just not destroy the reorganizations?

Robert L. Carter:

Well it would destroy —

William J. Brennan, Jr.:

Destroy the —

Robert L. Carter:

It would destroy and the city would revert.

It would revert to where it was.

William J. Brennan, Jr.:

Well then you need the term relief, that’s what I’m asking.

Robert L. Carter:

Well, we may not need this — the kind of — the kind of relief but we want — we’re asking for to make sure that there would be no difficulty in terms of — of the petitioner’s participating in the electoral process.

Earl Warren:

Mr. Elman.

Philip Elman:

Mr. Chief Justice, may it please the Court.

Because of the fundamental constitutional rights which are here asserted in the national significance of the issues, United States is appearing in this case as amicus curiae and supported the petitioners.

Before proceeding with the argument, I should like if I may by way of response to question from the bench yesterday to state that according to an official report of the United States Bureau of the census in January 1953.

The area of the City of Tuskegee as it existed in 1950 and prior to the alteration of the boundaries made by the 1957 law.

The area of the city then was 6.3 square miles.

In other words, roughly about 2.5 miles square, each of the lines on the trip reading about 2.5 miles.

Now, it’s perfectly obvious looking at the face of the map considering just this 2.5 mile.

That from any point of the new city to any boundary of the old city is less than 1.5 miles which as was stated yesterday has some significance under Alabama law, Title 37 Section 9 of the Alabama Code of 1958 provides that the police jurisdiction of every municipality having a population of less than 6000 which is now the case as to new Tuskegee.

The police jurisdiction extends beyond its corporate limits for 1 and 1.5 miles, is another provision of — of Title 37 Section 491 which puts upon the — which gives the municipality the power of maintaining health and cleanliness within its police jurisdiction.

So that the inhabitants of this area outside new Tuskegee, inside old Tuskegee now receive to an extent not shown by this record but — which has been illuminated by counsel.

By now receiving municipal services of a sort from the city, the point is of course that while they receive these services to some degree and extent not shown.

They are no longer in the position that they were before Act 140 of being able to assert through the exercise the franchise and through the exercise of less formal ways —

Hugo L. Black:

Is that —

Philip Elman:

— of their rights.

Hugo L. Black:

Is that a general factor?

Philip Elman:

Yes, sir.

That’s Title 37.

Hugo L. Black:

How long (Voice Overlap) statute.

I thought it’s been in effect (Voice Overlap) —

Philip Elman:

I believe it’s been in effect for — considerable period of time.

I founded in the 1958 revision.

Hugo L. Black:

I remember (Voice Overlap) many years ago (Inaudible)

Philip Elman:

Title 9 — Title 37 Section 9 according to the — I’m afraid that unlike the U.S. Code annotated, this does not show the historical deprecation, so I cannot answer it.

Earl Warren:

Mr. Elman may I ask, does the city have responsibility for those services as well as jurisdiction to render them if it desires to do so —

Philip Elman:

Well —

Earl Warren:

— outside of the city?

Philip Elman:

— I’m not sure that I’m qualified to answer that question Mr. Chief Justice.So far as statute show, the — the police jurisdiction extends to this area.

Now, the extent to which that imposes affirmative responsibilities upon the municipality, I cannot ascertain from the statutes.

Hugo L. Black:

I have an idea although it maybe wrong until they could tell us.

Philip Elman:

Yes, Your Honor.

Hugo L. Black:

Would that (Inaudible) grab that and make arrest for offensive committed in the city?

Philip Elman:

Yes, sir.

Hugo L. Black:

It may mean much more.

Philip Elman:

Well so far as the allegations of the complaint, our — our concern to the extent they shed line on this and they must be taken as true.

The allegation is that the petitioners no longer receive the police patrols at — at school crossings.

They use to have that, they don’t have that now.

Now, as residence of the city, of course they would be in a position to complain about that as constituents of a city counsel and there are electors in there and so on.

That right they no longer have and that of course is in a context to this case an important consideration.

Earl Warren:

Can the city levy any tax on those people out there for services?

Philip Elman:

Again, so far as the statute show if there are street construction — new — new construction, new road and so on, I think that there is a power to make assessments but so far as ad valorem —

Hugo L. Black:

(Voice Overlap) is part of the city?

Philip Elman:

If — if I — if I speak —

Hugo L. Black:

Just one —

Philip Elman:

— if I speak erroneously here sir —

Hugo L. Black:

I don’t know why.

Philip Elman:

It is only because of as a non-Alabama lawyer, I’m not sufficient — I’m not sufficiently at home with the statute, but I — I’ve made an effort to look through the code on this.

There is a provision that where there is new — new streets are laid, they can — there’s power to asses within the police jurisdiction.

But I’m — I’m sure that —

Hugo L. Black:

Did you elect there were —

Philip Elman:

— counsel for the — for the respondents, are in far better position to respond than I am.

But I — I should like if I may to go to the heart of the case as — as we think the questions of Mr. Justice Black and Mr. Justice Frankfurter have exposed it.

The complaint in this case was dismissed for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

The Court of Appeals affirmed, Your Honors I do not have before you proof, you do not — you’re not called upon to decide what the relief should be if that proof should be accepted in the judgment of violation of constitutional rights may.

The only question, which has been considered — below, only question, which is here is the question stated by Judge Brown.

Whether the federal courts are open to hear and determine the serious charges that are made by this complaint, the charge that this Act of the State Legislature, although cast in neutral surveyors terms and terms of metes and bounds that the line which this statute draws is a line based upon race or color and that it deprives these petitioners of basic constitutional rights secured in them by the Fourteenth and Fifteenth Amendments.

Now, the court — both courts below answered that question in the negative, said that it is not the business of the federal courts to entertain and resolve the controversy, the dispute, which is created by these allegations, which are purposes of this review, I can take this is true.

And that disposition of the case was not based upon cynicism or indifference.

The courts below in saying to the petitioners that your remedy is not in the courts of the United States, your remedy is — is to be found in the Alabama State Legislature, which you say is the body which has denied you — your constitutional rights.

As the opinions below demonstrate, this case has received in most careful and thoughtful consideration.

And the decision below is based essentially upon three grounds, one, as to the nature of the statute here.

This was a statute which defined municipal boundaries and at such a statute, under the decisions of this Court in three cases, such statute may be enacted by a state legislature wholly unrestrained by the provisions of the Constitution of United States.

A legislature in drawing municipal boundaries and extract it — and expanding them or contracting them as the case may be acts entirely as it pleases.

The second ground is that this — this law on its face has not a word on — on race and color.

It’s neutral.

And the absence of an expressed discrimination on race and color makes it wholly improper for the courts to inquire into the motives of the individual legislators.

That was the second ground.

The third ground as — was as to the inability of the federal courts to grant relief or the impropriety of granting relief, assuming effective relief could be given.

Now, I hope to deal with each of these grounds, but I think the hypothetical case of Mr. Justice Black has put may illustrate the Government’s position on this.

I think — we think that the Constitution of the United States serves as a complete obstacle to the establishment by law in America of any racial or religious ghettos.

If they state the union were to embark openly or validly without any pretense on the policy of geographical separation of the racist into separate communities, a policy which is sometimes described as the policy of apartheid.

If a State were to embark that, on that policy, who were to declare that — as a matter of policy to avoid hostility between the races, to reduce racial tensions, the State considers it desirable, that people of different races live in separate communities.

That within each community, they will have full rights, full voting rights, full rights to municipal services, but they shall have a mayor of their own race, they shall have a city counsel of their own race, they shall have judges of their own race, jurors of their own race.

If in short, the State of Alabama, instead of drawing a line here, which it has had created two communities, White Tuskegee, Black Tuskegee.

We do not think this Court would consider a sufficient defense in such legislation, that the people who left in Black Tuskegee had full voting rights or had just as good police or better police, or fire protection, or health protection, or if their garbage was being picked up with as much frequency as the people in White Tuskegee.

It seems to us that in October of 1960, that kind of defense of — of a — at a — of a law establishing a ghetto in the United States need — need not — cannot be asserted in this Court.

Now, the first ground of the decision below —

Hugo L. Black:

I assume that you’re arguing based on the premises, they have to accept on the allegations of the bill that this was done by the purpose of excluding these people to see that none of them stayed in the City of Tuskegee.

Philip Elman:

No, sir.

I — I — in this respect, the United States does not agree with petitioners.

Philip Elman:

The petitioners have assumed a burden, which we do not — do not think the decisions of this Court construing the Fourteenth Amendment as applied to racial discriminations requires them (Inaudible).

The petitioners need only show that this legislation, although cast in terms which do not reflect race and color is in substance and effect a racial discrimination.

They need not show that the purpose of the Legislature was good or bad, that the motives were — were worthy or unworthy.

This Court in cases going back to Fletcher against Peck has rejected that line of inquiry.

As you said in — in the — Chief Justice said, for example, Norris against Alabama, Chief Justice Vinson in the Oyama case.

The inquiry is not whether a — a constitutional rights have been denied in expressed terms.

The question is whether they have been denied in substance and effect.

And in the jury cases for example, Your — Your Honors have frequently heard arguments that the — that the commissioner who puts his hand in the box, which has yellow slips for Negroes and white slips for — for white people, he — he has testified without contradiction that the farthest thing from his mind was race.

His purposes, his — his motives were — were wholly admirable.

He was not thinking of race at all, and this Court has said that it would have to be a — the blindness of indifference rather than the blindness of impartiality, which would attribute to a systematic result, such as the exclusion of Negroes from juries over a large period of time, whether the exclusion was total or not.

It would have to be compressive —

Hugo L. Black:

As I understand you — as I understand your argument, if I — if I get the distinction, it is when you have a situation like this where a law has been passed, which cuts out the colored people from the area and puts them — creates a — decreases the size of the city.

It leaves them on the outside of that city.

And so if you look at it and see the — the effect of it is, is that they deprived the living of having the area on which they live inside the city so that they can get the advantage, that — that violates the Constitution.

Philip Elman:

We are saying —

Hugo L. Black:

The effect.

Philip Elman:

We are saying that any law which if you look to the reality rather than the appearance, if you look to what it is and what it does rather to what it says.

If that law in actuality draws a racial line, that is sufficient under the Fourteenth Amendment to establish its invalidity regardless of what may have been in the minds of the particular officials of the Government who were concerned with the drawing of that line.

That is our position.

We think it’s the position that this Court has — excuse me Mr. Justice Whittaker.

I’m sorry.

Charles E. Whittaker:

May I ask you Mr. Elman, in that connection, does this line do that?

Is there a provision against the Negro only filing night, day, any property inside the line?

Philip Elman:

The question is — isn’t whether there are prohibitions as to a — or burdens on the Negroes.

The question is whether this statute draws a racial line.

If it draws a racial line, we would think it — it is immaterial, whether they a — the result of the — of the drawing of that racial line may result in — in burdens or not.

Charles E. Whittaker:

True but I will —

Philip Elman:

Class legislation, if I may continue, sir.

Charles E. Whittaker:

Yes.

Philip Elman:

Class legislation on the basis of race or color, we think, has been barred by the Equal Protection Clause of the Fourteenth Amendment as it’s been construed by this Court from cases starting with the Slaughter-House cases and started in West Virginia going through the line of cases exemplified by Brown against Board of Education.

Philip Elman:

If people live in a ghetto, it doesn’t make any difference if the houses in the ghetto were finer than the houses on the outside.

The point is you cannot in this country enact legislation, which is — which contains a racial class — classification.

Now, in others — other areas, classifications between farmers and working men for example or other, in tax legislation hearing — that this Court is always faced with the — the problem of — of scrutinizing classifications and the classic formulation of the scope of your inquiry is — is there are rational basis for such classification.

But when it comes to race and color, you don’t — you are spared to that problem because the Constitution and the Fourteenth Amendment have declared that race or color is an impermissible basis of classification.

Charles E. Whittaker:

I would assume that that result to that much have been clever basically that is a violation.

Thus, it was difficult in any way, ownership by any ways on either side.

Philip Elman:

No, sir.

The answer is no, but we think it is immaterial because if the statute in express terms declared that the City of Tuskegee shall be redistricted or redraw — its boundary shall be redrawn in such a way that as many Negroes is possible shall be removed from it.

If that duty were entrusted to an administrative officer or a city surveyor, that — that would — I am very confident to present, no problems to this Court or of any court of the United States.

Felix Frankfurter:

Even though the statute had to provide though, however, if they can, they may buy new houses and new bag.

Philip Elman:

Exactly.

Supposed — supposed for example, I — I may be restrained from the issue here, but supposed for example, a — a municipality were bent upon avoiding the consequences of — of Brown against Board of Education and it redrew a school — this school attendance districts in terms of the existing residential pattern.

Now, surely, the fact that a child — a — parents of a Negro child wanted to attend some other school would have the right to sell their — their house and try to find their house in a — in another neighborhood.

Even if that right were expressly recognized by the — by the statute, it’s hard to see that that would constitute the kind of constitutional justification for violation of rights, which this Court has said light of very base of Government.

We’re dealing — the courts everyday in a week or ascertaining the intent of the Legislature, they’re looking to the meaning of the statute, they’re piercing corporate veils, they look to substance and not to form, they’re doing it in the context of a corporate reorganization cases.

This is a — this is a case where people are coming into the court and saying, “We are being deprived of our most fundamental rights.

We are being deprived of these rights because of our color.”

And if a court —

William O. Douglas:

Suppose — supposed that we reaching this argument, it’s pretty far historically.

The school districts had been drawn with the view of a — these set of school system.

Your argument doesn’t permit a (Inaudible) challenge those and have them redrawn by different standards.

Philip Elman:

My argument —

William O. Douglas:

Your argument might —

Philip Elman:

My argument would be —

William O. Douglas:

— would — would allow redrawing of some municipal lines perhaps.

Philip Elman:

The argument that I’m presenting on behalf of the Government is not in any way implied that the Federal Court will be redrawing municipal boundaries or redrawing some of the school attendance district.

The question here is whether the federal judicial power is available to consider and adjudicate a claim that a particular action, particular governmental action, these instances, state law.

William O. Douglas:

We understand that.

Philip Elman:

Is — is in violation of the Constitution for this?

William O. Douglas:

But it has something to do with the — drawing of lines by somebody.

Philip Elman:

If it is — if it is, the question is whether a declaratory judgment will suffice should the Court go further and enter an injunction against the enforcement of the law, which is declared not invalid, should allow a reasonable period for the State Legislature to attempt to enact other lot.

All those questions are going to be presented when the District Court, if he reaches it, has to decide what kind of relief should be granted, but they’re not here.

The question here is, whether this complaint should be dismissed for lack of jurisdiction and for lack of judicial power to consider it.

That’s the question.

And unless you are — unless the Court is prepared to say that there is nothing at all that any court can give by way of relief, then I think, the question of relief would be come relevant here.

And I don’t think that it can they assume as it was in one of the opinions — the opinion of Judge Wisdom below that, “No Court can grant effective relief here because the day after it’s a decision in validating this law, the Legislature of Alabama may enact a new law with slightly different variation and there will be new litigation and — and there might be an endless series of — of lawsuits.

Well, certainly, the — the premise that a legislature of a State, the United States is — is not going to respect the determination of the court.

The language is charged with the duty of determining what the Constitution means and then it’s — it is — and you — you assume that it’s — it’s going to — its purpose will be to flout in every conceivable way that determination.

I don’t’ think that premise can be asserted or accepted by this Court.

Felix Frankfurter:

But if you do not have to work (Voice Overlap) —

William O. Douglas:

You misunderstood my question.

Felix Frankfurter:

Go on.

William O. Douglas:

My question wasn’t — you misunderstood my question.

Philip Elman:

I — I’m sorry.

William O. Douglas:

Suppose this was a class — a historic pattern of the City of Tuskegee and those who were out were trying to get in.

What would you say to that?

That’s comparable —

Philip Elman:

Then, I — I would —

William O. Douglas:

— to the school district case that you wrote.

Philip Elman:

No, the school district case I — I suggested —

William O. Douglas:

(Voice Overlap)

Philip Elman:

— presented the case of — of a specific action withdrawn on a base of race or color not an existing — an existing fact in which —

William O. Douglas:

Oh, those are existing facts in many communities.

The —

Philip Elman:

Well, it’s — it’s hard offhand for me to — to think of an existing fact being in violation of the Fourteenth Amendment.

I — I have to find some governmental action which violates the Fourteenth Amendment.

What did the State do?

And here, the State did something.

William O. Douglas:

Well, every municipal line was withdrawn by some state authority I suppose.

Philip Elman:

Yes, sir.

Philip Elman:

And if it’s drawn even though in terms — without regard to race or color, if it is in substance and effect a racial line, we think the Constitution permits you to at least consider an allegation along those lines.

Now, this isn’t particularly unique in the field of racial discrimination.

Your — Your Honors have had the cases like the Gross Gene case coming from Louisiana, and the facts on the newspaper advertising, held unconstitutional, is a violation of the First Amendment, not a word in that statute about interfering with freedom of the press.

The Court held that that statute burdened the exercise of the constitutional right of the — of the free press.

There was no suggestion that the federal court should have made an inquiry into the motives of the members of the New Orleans — of the Louisiana Legislature as to whether they intended to burden the press.

Your Honors look at the operative effects of this legislation.

You look to what it did, not to what it said, not to the image of the statute, but to the reality.

Now —

Hugo L. Black:

What it does and we look — merely what it does without thinking about why they did it, what it does regarding the allegation which I understand.

We created the boundaries of Tuskegee in such ways that they eliminate them merely all of the colored voters, so that they were no longer in that area, but they would put outside of the area and if they claim, it has the rights to do it, they go to the appellate and came down with the city’s standards.

Philip Elman:

The State is claiming more, sir.

Hugo L. Black:

And what you claim, well — if that, that’s one them.

Philip Elman:

They’re claiming that you have no right to inquire —

Hugo L. Black:

You’re arguing that —

Philip Elman:

— in their — in constitutionality of that statute because it is a statute redrawing the boundaries.

Hugo L. Black:

I gather that you’re also saying that it creates a burden on the right to vote because of color.

Philip Elman:

Yes, sir.

In this case — that in this case, there was a Fifteenth Amendment argument which on the allegation of the complaint, is a — is we think a perfectly valid argument.

Prior to this Act, these people did, these petitioners had the right to vote in municipal elections.

Now, that right could’ve been taken away from them by a valid law redefining the boundaries.

They had no vested right to live in Tuskegee, obviously.

But they did have a right under the Fifteenth Amendment not to have their voting rights taken away because of their color.

It could’ve been taken away for other reasons, but not for that reason.

Hugo L. Black:

The trouble I have to that, I’m not talking about an ultimate conclusion of what happened.

The trouble I have is — is the difficulty I have in drawing the conceptual distinction between an argument that you don’t have to think a call about what is done from it.

But you just look to see its effect and of course, at each instance, without voting rights of people have changed, when they’re against a new territory, are cutout since they are drove in this problem.

This case illustrates the new failures of the fight that’s been going on.

Most of us are familiar with the tribes from those who lived on there, outside in a both hand, what (Inaudible) done that vested right not to be in the municipality.

This is a new face of it, brought on by this that you found it (Inaudible)

But I — I can’t see myself how you can go on, wholly on the basis that you don’t have to have evidence.

Hugo L. Black:

Well, were — in your judgment would be admissible to show that they also have a bill, stated that was his purpose?

Philip Elman:

I think Mr. —

Hugo L. Black:

Is that something like the evidence that happened from the —

Philip Elman:

Mr. Justice — Mr. Justice Black, the question of proof of course, technically speaking, is — is not clearly here.

Hugo L. Black:

I know it’s technic, but — but actually it is.

Philip Elman:

It actually it is.

And now, I will not dock the question on that ground.

So far as what kind of proof is concerned, it — why should the petitioners in this kind of a case had a greater burden than was put upon the plaintiff in — in the — in the case for example, in the United States last year in the case of United States against Thomas where — the voting case, where Judge Wright found that there challenges to 1377 Negro voters and only to 10 white voters and he said, “As a matter of statistics, just looking at the numbers, somehow or other, the Negroes were challenged and the whites weren’t.”

And from that I infer that this was a racial action.

Now, we think that in this case that — that the maps, the population in themselves, are — should establish a prima facie case.

It’s — it’s enough to shift the burden of going forward to the State.

If the State — if there’s — if there is a rational justification for this other than race or color, surely, the State can — can come forward with it and should be compelled to come forward.

And — and in cases for example, like the Bates case, it was before you last year, you — Your Honors have said, on the face of it, we see no discernible justification for this — if this there is that the– the navels is sustained.

If it can be met, if there is such a discernible justification that we don’t know about, let’s hear from the State.

Hugo L. Black:

As I understand it though, you finally get, whether you called it purpose or something else.

It seems to me, it has to be met and what you get to, I’m not saying it has to be made.

What you get to is this, that you — it’s claimed here that if a State exercises its general power to change the boundaries of municipality in way this has, in such ways it bar a great many people in remaining in the city, in that area who have lived there before and they are — are actually all — are all (Inaudible) in color.

But that’s enough to say that the State has changed the boundaries of its municipality on the basis of color and they can’t do it.

Philip Elman:

Well, Judge Wisdom in his opinion below, his conquering opinion below held that this complaint had to fail because it required an inquiry into motives.

He used the word, ‘motives,’ motives of the legislators.

He referred to psychoanalysis of the members of the Legislature, prying into the subconscious motive.

Now, we — we think that that poses this — this puts up a strong end.

No one suggests when — when a court is seeking in to ascertain the meaning of legislation or the, “intent” of the Legislature, that you take affidavits from the — you subpoena the members of the Legislature and ask them, “Oh, just what did you have in mind when you voted for this or when you voted against it?”

That’s not — that’s not the process of judicial inquiry into the meaning of legislation.

And we think that’s — that’s all that you have to do.

Hugo L. Black:

I didn’t make — make a quote enough to what I was about trying to get from you to this.

Is this the point which we have to read that you have legislations there which it produce the size of the city in a way that takes practically all the colored people out of it, moving them into a different area, keep the others in there?

Is that — that you say, is forbidden to the State because you can look at it and see that it was done on the basis of color and the — and the Fourteenth Amendment forbids it.

Philip Elman:

If you can see that, if you can see that, then it’s forbidden.

If it’s done there because they are colored and —

Hugo L. Black:

You said that they can’t change (Voice Overlap) —

Philip Elman:

And you don’t look to the statute, but —

Hugo L. Black:

You can’t change the area of the city at all on the basis of color?

Philip Elman:

That’s right.

Earl Warren:

Mr. Carter.

James J. Carter:

Mr. Chief Justice and may it please the Court —

Earl Warren:

Yes, you may.

James J. Carter:

If I may before getting into the main part of my argument, answer a few questions that were asked yesterday that was not cleared up.

Mr. Justice Frankfurter asked when Tuskegee Institute was organized.

It was in 1881.

You also asked I believe Mr. Justice Frankfurter, about the previous boundaries of Tuskegee.

Tuskegee was first organized in 1866 with the boundary of 2.5 miles on each side, the boundaries being equidistant from the then courthouse.

In 1868, by an act of the Legislature, those boundaries were pulled in to an area of 1 mile square.

History gives some very interesting side lights of why that was done.

Later on, they were expanded again.

There have been several acts and I believe the last act that really touched the boundaries in any significance was an Act of 1898, which again placed the manner in this position 2.5 miles square.

The question was asked as to following police jurisdiction.

That’s a general statute of Alabama applicable to all towns and cities, in towns having a population of 6000 people according to the last federal census, the police limits are 3 miles beyond the corporate limits and in towns of less than 6000 is 1.5.

Tuskegee at the present time has police jurisdiction of 3 miles beyond the new city limits by reason of the fact as we haven’t had the official 1960 census, we yet announced nor have we had a legislature meet as it will next year after the announcing of that.

It’s a — the population of Tuskegee is less than 6000 without the next legislature then of course, we’ll refer it back to the 1.5 mile limit.

Felix Frankfurter:

Of course it’s the biennial legislature, isn’t it?

James J. Carter:

Yes, sir.

Meets next May.

Felix Frankfurter:

So that’s a little ahead of the game.

So that if this statute, if 140 is invalidated and the old boundary revert, unless there’s a special session of the Legislature —

James J. Carter:

Yes, sir.

Felix Frankfurter:

It would take some time to do what Judge Wisdom feels it might be done, is that it?

James J. Carter:

And you have this too, that you have the United States census being out of guilt because as I understand it, they’re going by these boundaries.

Now and then the police —

Potter Stewart:

Mr. Carter, before you proceed —

James J. Carter:

Yes.

Potter Stewart:

— what’s the meaning of this extraterritorial police jurisdiction?

James J. Carter:

It means this —

Potter Stewart:

Is it a police power to arrest or is it a — is it a day-to-day police protection from the State?

James J. Carter:

They have a power to arrest, to answer calls and to actually patrol the area in most cities do.

As a matter of fact, they furnish police and fire protection to the entire area.

As a matter of fact, in this entire area here, they have water and electricity which is — they have municipal electric plant which furnishes this entire — none of this has been withdrawn.

Potter Stewart:

Now, do they pay — of course, as I assume they pay for the water.

James J. Carter:

They pay for water and electricity, but these people that have been on the outside of this city paid no city taxes.

In other words, since 1957, no — no city taxes, the only taxes levy within the police jurisdiction off of businesses.

Now, business organizations pay one-half the license that people within they (Inaudible) would pay and that is based on if they — they do get the police and fire protection and these health services.

Potter Stewart:

By health services, you mean what, garbage collection?

James J. Carter:

Well, no, they don’t have garbage collection as such but I mean they have the advantage of coming into the city health department, of any of that, it goes to have the water in the sewage lines, which of course are available there and are huge.

Now, we also point out here as to the population of this area, the way it was drawn, the little argument they pulled in, you will see here, for example, a rather heavily populated neighborhood.

That’s — that’s a Negro neighborhood there, which begins out here and it goes way off.

Now, we are in a position here drawing lines that we must if those people wanted to do, so you must come in the city.

You’re discriminating against this because we’re colored.

That’s another point.

Now, I believe Mr. —

Felix Frankfurter:

(Voice Overlap) I didn’t — I didn’t take in what you’ve just said.

James J. Carter:

I’m saying here that that gets back to the point.

I believe that one of the Justice, Mr. Justice Whittaker, someone asked that if you had people on the outside the city in the area, if you would be discriminating against them if you didn’t take them in.

And so that would illustrate that particular point if these people in, say green, would open here, wanted to come in the city.

Potter Stewart:

That’s never been a part of the city.

James J. Carter:

Never been, no, sir.

Now, I believe yesterday there was some method asked about the procedure for changing boundaries.

The Constitution of Alabama provides and this Act was not as — the first counsel suggested a private act.

It was a local law.

Pass after notice and proof regarding to our Constitution, to pass such a law, you have to advertise it for weeks.

That’s to give the people affected, I tend to come in and protest if they desire to do so.

James J. Carter:

As far as I know, there’s no — this — this law is advertised, no protest was ever made.

Now, that’s a perfectly legal and been upheld by our State Supreme Court as being the proper way to change boundaries.

In fact, nearly all boundaries in Alabama changed that way, harm the session of legislation of what means.

But you won’t have 50 to 100 boundary line changes.

There’s probably been thousands since our Constitution in 1909.

Now, there is — there are other ways of changing boundaries.

For example, in the city, the city made by — initiate its own proceeding.

The counsel may propose it and by — present it to the probate judge and then by popular election, bring in additional territory.

You could also contract the city that same way the city here could initiate it.

This was state action, however not city action.

This was done by the state legislature.

Also I thought as to fact that a — that people, 75 or more people, may form a municipality.

In other words the people outside here, they form their own municipality if they care to do so and may initiate the action and carry it right through separate by a popular vote.

Now, I believe that probably gets us down except to one thing that Mr. Justice Stewart makes in the essence that the district judge characterized this as a sea dragon.

That was the plaintiffs that characterized the sea dragon.

He put it in quotes in his opinion.

Now, as we look at it, it might be a bit of a descriptive term and it would take ones imagination but that’s not too unusual looking outfit when we look somewhere in the cities in the United States.

And last night I haven’t pick up to run magnetic road add list and of course we’ve been a good bit out of this record all the way through, so we might just mention someone — man in town of Pennsylvania.

I suppose it looks more like a cloud.

These boys, they used to lay on the grass and watch the clouds and figure what it looks like.

Concord, New Hampshire, Stanford, Connecticut, Scranton, Pennsylvania, it looks likes a jigsaw puzzle sitting on top of the other, Cincinnati, Ohio by this bed, even Sacramento California (Inaudible).

So you just don’t know why the city has the boundary lines it has but let’s get down now to what I consider.

If Your Honor please, to meet and the (Inaudible) in this case.

And that is this and finally after being in the lower court and the Court of Appeals, finally for the first time on page 11 in the petitioner’s brief is we have to get them to admit there were such cases as Hunter versus Pittsburgh and Laramie County versus Albany County.

The Hunter versus Pittsburgh and Laramie County versus Albany County, Mount Pleasant versus Beckwith are the cases upon which we stood in the lower court of the fundamental merits here.

And that is the power of a State acting through its legislature as a sovereign right to extend comfort limits, to draw him in, to consolidate cities or to abolish it.

That’s true of counties and it’s true cities.

The first case only said, it was the old Laramie County versus Albany County which involves county lines and of course the county is simply a political subdivision of the State.

It’s a creation of the State created for the convenient administration of Government.

Shortly after that, we came to Mount Pleasant versus Beckwith where they, again, pointed out that corporations are composed of all the inhabits of the territory, all the people who lived within the territory.

James J. Carter:

And they see that the organization and the territory maybe modified and I’m now quoting from Court by the mere wheel of the Legislature.

Now, that goes back, if the Court pleases, to other quotations we look into this constitutional limitation.

We find Professor Coolidge saying that they may as a political manner the drawing of boundary lines for cities and political subdivision peculiar that vested in the State.

And it says this, “If the legislative action in these cases operate injuriously to the municipalities or to individuals, the remedy is not with the courts.

The courts have no file to interfere and the people must be looked to, to write through the ballot box all these wrongs.

Felix Frankfurter:

Mr. Carter, what were the exact issues in anyone of those three cases, take Hunter against Pittsburgh or (Voice Overlap) —

James J. Carter:

I assume —

Felix Frankfurter:

What exactly was done that was complained off?

James J. Carter:

Alright, sir.

Felix Frankfurter:

Not a general language —

James J. Carter:

Alright.

Felix Frankfurter:

But what was it —

James J. Carter:

Alright, sir.

Felix Frankfurter:

Let’s suppose we’ll step down.

James J. Carter:

Which either one or we take all of them

Felix Frankfurter:

(Voice Overlap)

James J. Carter:

Alright sir.

Let’s take Mount Pleasant versus Beckwith that was a question of creating municipal corporations out of parts of other corporations.

In that case, the main issue involved was a question.

Felix Frankfurter:

Who complained of what?

That’s what I want to know.

James J. Carter:

Alright, there was a city, the city was complaining about having to take on debts of another city.

Now, that was a city action.

Now Hunter versus — Kelly versus Pittsburgh, if we take that one, was where the city around the State increase the limits and brought in Mr. Kelly’s farmlands.

They brought about 80 acres of farmlands and Mr. Kelly, an individual, came in and said, “You are depriving me of my property without due process of law.

Now, this is what you do with it.

I’ve got farmlands.

You’ve increased my tax rate.

I’ve got to come in and pay for all the services of Pittsburgh.

You are charging me $2100 a year of taxes when I’ve only got $800 income.”

James J. Carter:

In that case went all the way in the Supreme Court of the United States and had case say it, that didn’t make any difference of what he said what portion of state shall be within the limits of the city and governed by its authorities and its laws has always been considered to be subject of proper legislation.

And he goes —

Felix Frankfurter:

He complained — he complained and he was quite happy when he was outside —

James J. Carter:

Yes, sir.

Felix Frankfurter:

— Pittsburgh and now he’s in the inside of Pittsburgh and the tax rate is going to be higher.

James J. Carter:

Yes, it was most on that.

Felix Frankfurter:

That’s all that was involved here.

James J. Carter:

That’s all, yes, sir.

I might be frank to say, none of these cases involve a racial situation, not in Hunter.

Felix Frankfurter:

Or fundamentally, they involved complaint by citizens of a smaller unit, it would a next to a bigger city or vice versa or —

James J. Carter:

Yes, sir.

Felix Frankfurter:

— a big city having been struck down to it.

James J. Carter:

Yes, sir.

That’s correct.

Felix Frankfurter:

In short, they involved the relation of the municipality to the State.

Is that right?

James J. Carter:

And the people in that municipality to a State and the municipality.

Felix Frankfurter:

All of them having been originally created and their boundaries having been declined by the State.

James J. Carter:

Yes, sir, just in Tuskegee, the — the city Tuskegee was originally organized by, its boundaries defined by the States and most recently defined by the State, not in Hunter.

So there —

Felix Frankfurter:

The analog would be some neighboring little village had been next to Tuskegee or a division has been made of which your, such, calculation regarding the population distribution could be made as it’s made in the State.

James J. Carter:

That would be — that would be —

Felix Frankfurter:

Is that right?

James J. Carter:

That would be true if you wanted to get something directed.

Now, I’ll admit that I don’t have a white horse case on this but I do have the law which has been followed and affirmed and reaffirmed in every state in this union.

Felix Frankfurter:

Can we agree if you have language?

James J. Carter:

Language if you please.

Yes, sir, I think it’s a law because I believe it’s been repeated and I think it’s been followed by this Court that it has — just because I don’t agree with Judge Brown in his dissent and said, “You’ve only got one case that had been decided in the — this century.”

Well, I don’t think because the case is old and it makes it bad law, but not in Hunter.

We said this and they go back to it and I agree with you.

James J. Carter:

There was a question of bringing — allocating in to Pittsburgh.

We are allocating they had a nice little town and they had all their debts paid and they had all of their facilities in Pittsburgh was trying to do everything in going that going there.

But they said this, “We have nothing to do, was the policy, wisdom, justice are bad as to act under consideration.”

Those questions are that the court — the consideration of those whom the State has entrusted this legislative power.

It goes on to discuss what municipal cooperation that they are simply political subdivision.

Then says a State may add its pleasure, modify withdraw those powers, extend the contract to territorial area.

And said that all these respects, the State is supreme and its legislative body conforming his action to the state constitution may do it as it will on the restrain by any provision of the Constitution of the United States.

Now, we take flat foot in the position in this case, that this is a case within the confidence of the State of Alabama to fix the boundaries of his municipalities.

Felix Frankfurter:

You’re really resting, are you not Mr. Carter on legal (Inaudible) and I don’t mean to use the word, derogatory.

But you’re resting on a legal absence, that the creation, the destruction, and modification of municipality, is the political functions of the State not subject to judicial review.

James J. Carter:

If Your Honor please, I think that be a fast statement of my position.

That’s one of my positions and three but I take that as you take it.

Felix Frankfurter:

You mean you take that.

James J. Carter:

Yes, sir.

As a legal absolute and one is become so firmly and — embedded and the jurisprudence to this country that I think would be getting into a real ticket if we ever got beyond it.

Now, as Your Honor pointed out for —

Charles E. Whittaker:

May I ask Mr. Carter —

James J. Carter:

Yes, sir

Charles E. Whittaker:

(Inaudible) could this lawful power construe with confidence that being through unconstitutional objectives?

James J. Carter:

Of course to that extend Mr. Justice Whittaker I won’t say that — that there’s no possible situation that it might not be abused.

But I do say this.

I think it’s a matter even then, that the States himself should have an opportunity to correct by going to the state courts to do it.

If — if they did get off base on something like that.

For example, in many things, that the Courts have said and I believe Mr. Justice Frankfurter pointed out in Colegrove versus Green that courts just can’t do.

That — that — to some extend, he pointed out for example that we have some constitutional guarantees that — that can’t be enforced for example the guarantee of a Republican form of government, the congressional regulation of the Indian tribes, the legislative executive control of foreign relations, the control of civilian and military appointing power.

They only get the civilian and military appointing power, just keep touch it.

This Court has decided that recently.

The inherit wisdom of any legislative executive policy, if you were to see that laws have faithfully executed.

And then we go on beyond the fact that stay on boundary lines, we’ve got the old cases from this Court of Benson versus United States were there.

A man was on trial for his very life.

James J. Carter:

And the issue in that case was, did this occur on Fort Leavenworth Military Reservation, didn’t it?

And he took the position that it was all land owned by the Government but he had never used it for reservation and to show what answer to it was the executive as determined that these are the boundary lines of Fort Leavenworth Reservation and that is it.

And in that case, it went all to all the proposition that there was — there were things within the legislative an executive field and throughout the cases and all of them and every state of country as (Inaudible) Hunter and Laramie and the others, they have consistently held that the drawing of boundary line in cities is a legislative and not a judicial function.

We come back to this proposition in this case to — to get to the racial angle.

Of course, we would have to go back and see what the legislatures — Legislature meant.

Of course we speak of intent and reaching of intent and construction of legislation and — and that’s true.

But of course that’s an ambiguous legislation where — where we always go back to commit a reports.

Here, there is none.

There’s nothing in the act.

There’s nothing to construe in the statute from that end.

These are the boundary line period.

That’s the only boundary line.

Now, when we come to motive and motive is really what we’re talking about.

We can fence around whether it is purpose or intention.

The purpose and intention I believe in South versus Peters, there, the contention was made that the purpose are effect of the Act, it was worthy use but this Court still went off there.

It didn’t go into that.

They didn’t — they didn’t go to the proof act.

But this Court has said repeatedly.

And we go back to the Duplix Printing Co. & Press case that even on acts of Congress, you can’t take what legislator say and read into that the motive behind it.

It just can’t be done.

And we go back to the verb beginning of this country Fletcher versus Peck.

That was a case where it was alleged that the legislators of the State of Georgia had bribed to pass certain legislation to make land grants.

And Mr. Chief Justice Marshall refused in that case to even inquire into it, saying that the motives could not be inquired into.

The courts consistently followed that line.

Mr. Justice Holmes, in Koller versus The People of Michigan said that, knowledge, negatives or manners or motives of legislators will not be inquired into.

Terry versus (Inaudible) reaffirmed the principle, Arizona versus California, again by the Supreme Court of the United States where it was alleged that the numbers of Congress had some ulterior motives in trying to pass that act.

Somehow, it was trying to do it for personal reasons and to — to make a lot a money, and they said motives which induce members of Congress.

To pass a Boulder Canyon Project Act will not be inquired to.

There are things with which the Court may not inquire.

And we say there we can talk about motive or purpose or affect, that’s what we’re talking about.

James J. Carter:

And they want to go here to certain — they wanted quote for example from what the newspaper said that the author of this act said, when he first advertised it, before it was introduced in the Legislature.

They even go so far in the record as to cite an article from the New York Times, Time magazine.

Now, may it please the Court if we have to get the part of determining motives of what people mean by what magazines say about us or about our courts or about our legislature.

We have put in bad shape because we just can’t always determine motives that way.

Now, to my third point, to me I think it is an important part, and that’s the question of judicial restraint in cases of this kind.

We have a number of cases, we —

John M. Harlan II:

Mr. Carter —

James J. Carter:

Yes, sir

John M. Harlan II:

— my I ask you a question?

James J. Carter:

Yes, sir —

John M. Harlan II:

You first argue —

James J. Carter:

— Mr. Justice Harlan.

John M. Harlan II:

According the statute on its base, it said that, suppose the State of Alabama reserved segregation in that city and therefore this Tuskegee would be redistricted so as to divide the (Inaudible)

Would you still say that would be on the power the federal courts to attach?

James J. Carter:

No sir, I think the decision to this Court it may deter that when you have the statute says, it has to be stricken down, if you done that in the school segregation case, as a matter of fact in Alabama, we do have a constitutional provision of segregation.

But we are not here inline upon that.

We realize that there’s been a change of climate and that the recent decisions will clarify those points.

And what I’m saying here, understanding flatfootedly upon the proposition, that in a case of this kind, whether it’s says there’s been a boundary change.

That the State has a right to do it, there is nothing here as was pointed out before.

Negroes live within Tuskegee.

Negroes live without Tuskegee.

They may change boundaries.

Nobody has been removed from Tuskegee except that there’s some territory that has been attached from a municipal corporation.

Now, the single — it — it doesn’t affect the schools.

It doesn’t affect the services at all.

A simple question of drawing lines that — that territory that was watched within certain limits, metes and bounds and now no longer there.

The metes and bounds are different, and they are different because of people that have a rights to draw or drew.

Charles E. Whittaker:

Mr. Carter, if you were here in this lawsuit formally to admit purpose, to be as allege.

You’d have then, would you not, the same situation as hypothesized by Mr. Justice Harlan?

James J. Carter:

Yes, sir, I probably would.

Charles E. Whittaker:

But the question as you raised now is that there can be no proper proof of motive.

That’s not a judicial inquiry, is that it?

James J. Carter:

Yes, sir.

Yes, sir, I say that.

Charles E. Whittaker:

In other words, this is an exception to the rule that facts well-pleaded or admitted for jurisdictional purposes.

James J. Carter:

Of course Your Honor to ask that and well-pleaded though, you must to have something that’s susceptible of proof and relevancy.

Charles E. Whittaker:

Well, that’s your point?

James J. Carter:

Yes, sir.

Felix Frankfurter:

But Mr. Carter your answer to Justice Harlan’s question, makes into a general proposition that you are standing on an absence.

James J. Carter:

I am.

Felix Frankfurter:

Suppose — suppose the Legislature of Alabama said, whereas these people of the United States has said and then quoted the thing you quote from Laramie County, from Beckwith, from Hunter and Pittsburgh.

Therefore, exercising the right to do what we — judicially unreviewable power to do namely three district municipality, we redistrict it because for the wellbeing of the State, I mean they could for colored people to flock together, for white folks to flock together.

If that is bad, as I understand you to say that would be bad?

James J. Carter:

I say it is because I’m not in a position to speak to the State of Alabama.

Now, I don’t represent the State of Alabama in this case, but I would say this, if any legislature was ever foolish enough to put that into law, I think it should be not advantage.

But —

Felix Frankfurter:

Well, on that (Inaudible)

James J. Carter:

But let me say this on the absolute.

I would say this that if purpose was admitted, if purpose was admitted, I think that without overruling Hunter, Laramie County and the others that the States would have the power to draw their boundary line regardless of the purpose.

What I’m saying is —

Felix Frankfurter:

(Voice Overlap) because I don’t believe in it.

James J. Carter:

Yes.

But if — if that is a proposition, in other words, I say that purpose is not a proper inquiry in this case as to what the statute means.

Felix Frankfurter:

No, I’m not talking about this case.

I’m talking about whether you can’t say those appropriately quoted things from those three cases are some of the generalities, unqualified generality, which court give expression to in deciding a concrete case that can stand scrutiny when a different case arises.

James J. Carter:

I would say this, Mr. Justice Frankfurter, if I was put to the choice, I would take the position that even with that language, we would have uphold it.

Felix Frankfurter:

Well, very well, I can understand that.

James J. Carter:

Yes.

Earl Warren:

But Mr. Carter, you said that the motive cannot be judicially inquired into.

Can the results of the statute be inquired into judicially?

James J. Carter:

You may look of course and see what a statute does, but I don’t think it’s awfully see the line and I don’t know that anybody’s ever define really the difference between motive and ultimate purpose.

Of course you can look at effect.

Earl Warren:

No, —

James J. Carter:

Most of —

Earl Warren:

— not ultimate purpose but ultimate results.

James J. Carter:

Well, of course, you can look at any statute, see what it does.

You look at this statute to see where the line is.

Now, the effect of that line to see and who lives on one side or the other, I don’t think is a pertinent inquiry in this case.

Earl Warren:

Well, is it a — is it a judicial — a proper judicial inquiry?

James J. Carter:

No, I do not think so because I say this.

We — I get back again to the proposition that the Legislature has the right to draw line.

Somebody has put that power in it.

The courts can’t draw the line.

Nobody else can draw that line that they have drawn it.

And they’ve drawn it in a — in a way that is compatible with the Constitution of State of Alabama and I say it should hold.

Earl Warren:

But suppose it’s incompatible result that it achieves, is incompatible with the Constitution of the United States.

James J. Carter:

Because there again, Your Honor, I don’t see how we could determine that when we have the power to draw a line without going back and say really what is a motive of this thing, which the courts had said you cannot inquire into.

Earl Warren:

I’m not talking —

James J. Carter:

And we are —

Earl Warren:

— about motive.

I’m talking about the ultimate effect of the statute on the people who live in that — in that city.

Suppose — suppose that they access nothing with discriminatory nature but in effect, it does substantially affect the constitutional rights of the people who — who live there.

Is there no judicial inquiry at all?

James J. Carter:

Your Honor please, I feel to see here the constitutional rights that have been —

Earl Warren:

I didn’t — I didn’t say you have (Voice Overlap) —

James J. Carter:

— of those courts.

Earl Warren:

— (Voice Overlap) —

James J. Carter:

Yes.

Earl Warren:

You’re talking about absolutes.

All I’m trying —

James J. Carter:

Well, of course —

Earl Warren:

— to ask you is if it’s a — a proper subject matter for judicial inquiry.

James J. Carter:

I think of course it would be —

Earl Warren:

Well —

James J. Carter:

— in the proper case —

Earl Warren:

— if that all —

James J. Carter:

— the — the courts always find a way to — to look into matters if you could come in and say now, “We’ve got a case here with absolute violation of the Constitution.”

But we have constitutional provisions that correlate, that mesh in together and we have one.

We have the Tenth Amendment, which says the States are supreme in certain fields.

If they have sovereign power to the old government and here they’ve exercised it and created a political subdivision to carry out the old parts.

They haven’t taken away anybody’s right to vote.

Earl Warren:

Well, isn’t that all they’re asking for here to have — to have an inquiry made by the court below?

James J. Carter:

Yes, and they’re asking —

Earl Warren:

You are not asking us to decide anything here.

James J. Carter:

But this — this decision of itself what they ask, if Your Honor please, is to go into motive, to go into purpose and to tell the court below, and as he pointed out, this case has been very carefully considered by two courts and I was interested to know that they realized that.

It’s been studied.

It’s been studied on several theories, not only the constitutional issues themselves but upon the question of judicial restraint in the statute.

The court below looked and Judge Wisdom did, that this is about as highly political thing as anybody can get into as to where boundary lines go.

If we start drawing boundary lines as such for every ward and every precinct and everything is going to be question after question.

Now, in Colegrove, we get back to that.

In that case, of course, was your congressional redistricting.

It’s not exactly this case and I wouldn’t say that it pronounced any absolutes but it did point out that the courts generally refrain from getting into the political figure of districting.

Now, this is not, as I say, a congressional district but it does draw lines of a political subdivision of a State in the South versus Peters, where again we had the question of the Georgia unit vote.

And there, the courts simply went all from the proposition that it was a political question because it wouldn’t get into it.

Now, there was a dissent to that case and the argument in that case was very much as it was here.

The argument in that case being that the effect and purpose of the Georgia unit system, its purpose and effect was to dilute and to cut down on the vote of Negroes, and I believe, labor, but this Court nevertheless with Justice Black — Mr. Justice Black and Mr. Justice Douglas dissenting held in that case that it was not a matter for judicial concern.

We say that this is a matter of local policy.

We say as the cases are pointed out that it’s a question of local policy, purely political, that the courts held all the — all the way back, not only these matters of equity, but it’s a matter of judicial abstention if you please or judicial self-limitation perhaps would be the better word.

They have refused to go in to cases of this kind, which pose the line drawing political questions that this would and someone said, “Then what’s the remedy?”

He said the only remedy we could have would be to declare this Act unconstitutional.

James J. Carter:

Of course there, we go back to proposition that you — you’ve got intervening rights and have come up in the meantime.

We have this Act that was passed in 1957.

It was advertised two to three months before that.

Nobody felt that they were discriminated against it.

It did anything to almost 14 to 15 months later.

And then they decided they were which makes you wanted sometimes that people had rather have a lawsuit than to try — use their right to petition on the Constitution to say, “Well, I don’t think this law is right and I wish you wouldn’t do it.”

Now, we’d assume that legislators will not listen to anyone.

We’d assume that their right of petition had to go down and discuss this thing as they don’t go this far, but go somewhere else.

You — you’re not doing the right by us.

But no, the matter is going on.

They accept the benefits of no taxes.

Accept the benefits of their police and fire protection.

But now, we come back at this late 80s, even intervening election and say, “Oh no, let’s get into this thing now and tell us maybe where the line should be drawn,” and say, “But all the courts not drawing a line.”

Well, of course you can say it in this case, but if we draw another in some way as some court sometime has got to tell us how far we can go.

What percentage of colored and white there must be?

Of course, somewhere, sometime, if that goes on, somebody’s got to draw the line.

John M. Harlan II:

(Inaudible) elections in Tuskegee?

James J. Carter:

Every four years.

John M. Harlan II:

Every four years?

James J. Carter:

Yes.

John M. Harlan II:

This — this year one or they come in (Voice Overlap) —

James J. Carter:

This year, September was the election.

In fact, they’re electing new mayor.

He hadn’t taken office yet, but they elected a new mayor.

John M. Harlan II:

There won’t be another municipal election until —

James J. Carter:

For four years unless —

John M. Harlan II:

Four years unless —

James J. Carter:

— somebody dies, they have a special election, that’s correct.

So we have numerous questions, as elections void, one has already had this Government in this — in the meantime been in a state of limbo, just what is the situation.

So we respectfully submit, if it please the Court, in this case.

James J. Carter:

That for the courts below to grant the relief that these petitioners ask, they would have had to have ignored precedents that have been established, reestablished, affirmed and reaffirmed throughout the history of America jurisprudence.

And we go back and we say again in the terms of Judge Wisdom.

We think he put very wisely.

He agreed with the majority opinion and he — he wrote a concurring opinion on this question of judicial self-limitation.

As a matter of fact, the opinion of the majority and the opinion of minority, as well as dissent could well make the briefs in this case, my brief, his brief because they have covered the field factor.

But he did point this out and we’ll come back to the situation in this case.

If the courts are to end in this statement, the cure is going to be much worse than disease if a disease really exist.

Thank you.

Earl Warren:

Mr. Carter.

Robert L. Carter:

I just have one word and I just want to point out to the Court what we — again, what we think the propositions are before us.

What we are — we have alleged, made allegations that Act 140 accomplishes disenfranchising based upon race and a denial of residence because of race.

It is our opposition, if the Court please, that we are entitled to have that both claims heard in the Court.

The abatement of racial discrimination has always been the business of — of the — of the courts and particularly, the federal court certainly since the civil war.

The fact that this was done by virtually of boundary lines and so forth we think makes no difference that the question we think that we’re entitled to is to go into a court, to have a hearing and to put — and to submit proof that racial discrimination, which we alleged had been accomplished and as such, we think that this is — this is our case and that this case is governed as we said before by the race discrimination cases, where this thing has been aligned.

Thank you.