The Washington PostDemocracy Dies in Darkness

Texas’s new attempt to circumvent the Constitution resurrects an old tactic

The state’s abortion law embraces a mechanism used to defend Jim Crow

Advocates on both sides of the abortion debate gather outside the Supreme Court on Nov. 1 as arguments begin about the Texas abortion law. (Jabin Botsford/The Washington Post)

Texas has a legal fantasy that it can evade Roe v. Wade, the landmark 1973 abortion case. State officials claim that its new abortion law — which took effect in September and bans abortions after six weeks of pregnancy — is constitutional because the law is enforced only by private citizens, not the state. But such an argument is not new. In fact, it was the same legal justification used by states trying to preserve Jim Crow. The Supreme Court consistently rejected the ploy. The court was not fooled then, offering a road map for handling the current case.

States offered tenuous excuses for Jim Crow because the 14th Amendment, which protects constitutional rights, generally covers only conduct of state and local governments; therefore, those looking for an end run around the Constitution often tried to dress up their bad conduct as “private,” rather than “official.”

The most spectacular failure of the “no state enforcement” gambit came in Texas’s repeated effort to keep its Democratic Party primary all-White, an effort rejected by the Supreme Court four times. The saga began in the 1920s, with a new Texas law that said, “in no event shall a negro be eligible to participate in a Democratic primary.” L.A. Nixon, an El Paso dentist, was turned away from the primary, and he sued. A unanimous Supreme Court opinion by Oliver Wendell Holmes in 1927 made short work of the Texas statute, saying it violated the 14th Amendment.

That decision rested on the fact that the “no-Negro” rule was in the state law itself, so Texas immediately went back to the drawing board to “privatize” the racial ban. Texas removed the “no-Negro” rule from the statute, but the new statute still specified how a political party was to make its own rules. The Democratic Party promptly adopted its own rule keeping its primary all-White. But now the all-White provision would be enforced by the political party, not the state.

Once again Nixon tried to vote and was turned away; once again he challenged the all-White rule, and in 1932 the Supreme Court struck it down once again. Even though he was excluded by the party, not the state, the court said the new state statute still maintained state involvement and “the result for him is no different.” It added that there might be “diversity of method,” but there was still “identity of result.”

The state tried a third time, this time stripping the state law of all provisions about the Democratic Party’s organization and rules. All to no avail; in 1944, in the first Supreme Court case argued by Thurgood Marshall, the court ruled against the White primary again. The court said that because state law authorized political parties to hold primary elections to choose candidates for public office, that meant the state had entrusted to the Democratic Party the role of determining voter qualifications in the primary. As a result, the state thereby “endorses, adopts and enforces the discrimination against Negroes.”

This last decision, Smith v. Allwright, sent seismic shock waves throughout the South. The “White primary” had been a bedrock institution in every state of the segregationist South, because the Democratic primary was the most important election in Southern states given the party’s thorough dominance of the region. Yet, every state except Texas had kept the White-only rule out of the state statutes. The progression that began in 1927 when the court struck down the Texas White primary statute opened ballot boxes for African American voters all across the former Confederacy.

Yet, even Smith v. Allwright was not the end of Texas efforts. Democrats in Fort Bend County tried to maintain their all-White “Jaybird Primary.” This was a holdover of the 1880s Jaybird-Woodpecker War, a violent clash between rival factions of the Democratic Party. The surviving faction, the Jaybird Democratic Association, for many years conducted a “pre-primary” selection process that chose candidates for the county Democratic primary. The Jaybirds kept their process all-White even after the Supreme Court struck down the state Democratic Party’s White-only rule in 1944. They claimed they could do so because they were simply an informal “slating” group with no state involvement. In 1953, the Supreme Court rejected this all-White variant, calling it a “flagrant abuse” of the Constitution.

Texas was not alone in attempts to maintain Jim Crow by saying that unconstitutional practices could persist if they were enforced by private individuals rather than the state. In the early 1900s, when former slave states were determined to keep Black farm laborers shackled to their employment on plantations or farms, the states knew they could not directly force workers to remain on the land because that would amount to “involuntary servitude” in violation of the 13th Amendment that had banned slavery. Instead, Alabama, like other former slave states, put enforcement into the hands of landowners by creating the “offense” of leaving employment without justification, to be enforced by the landowner. The result was a pervasive system called “debt peonage,” in which the laborers’ debts kept increasing and kept them tied to the land.

In 1911, a case against debt peonage, secretly financed by Booker T. Washington, reached the Supreme Court. In its defense Alabama claimed that this law was not the same as state-imposed involuntary servitude. Yet Alabama’s pretense of private enforcement fared no better than Texas’s would. The Supreme Court held the Alabama law unconstitutional with the words: “What the state may not do directly, it may not do indirectly.”

Later, during the civil rights era, the Supreme Court again gave Alabama the same lesson, this time examining a state law that was used to limit freedom of the press. Knowing the First Amendment would stop a state from directly shutting out the national news media from covering civil rights, Alabama facilitated private libel suits to achieve the same end of silencing the press. State courts upheld huge libel verdicts for Alabamians who claimed they had been libeled by newspaper descriptions of civil rights demonstrations, including a half-million-dollar verdict against the New York Times. When the newspaper appealed, the Supreme Court responded in the famous case of New York Times v. Sullivan. Reversing the verdict, the court declared, “What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.”

All these cases, stretching back over many decades and a half-dozen chief justices, show a Supreme Court vigilant to protect the Constitution from state exercises in tyranny. Today’s Supreme Court has the same opportunity and obligation.

The court’s initial failure to block the Texas law, based on procedural grounds, should not give Texas state officials much comfort because it is temporary. If the court follows the Constitution and precedent, the decision will be clear, and the Texas abortion law will be no more.