THREE QUESTIONS OF LAW

Alabama's Governor Patterson insisted that the activities of the Freedom Riders and the presence of armed U.S. marshals in Montgomery were shocking violations of "our law and customs." In fact, last week's federal-state conflict involved three major questions of law--and in each case the answers lay clearly on the side of the Freedom Riders and their U.S. Government guardians.

Do the Freedom Riders have the right of unhindered passage across state lines?

The right of a U.S. citizen to move freely from one state to another has been repeatedly upheld by the Supreme Court. In 1868 the court voided a $1 tax imposed by Nevada on anyone's leaving the state. The tax, said the court, interfered with the right of travel conferred by citizenship. Five years later, in a Louisiana case, the court listed the right of free interstate travel as a specific privilege of U.S. citizenship under Article IV, Section 2 of the Constitution. In Edwards v. California (1941), the court tossed out, as an illegal abridgment of a citizen's privilege, a Depression-born California law aimed at keeping the migratory Okies out of the state. Three years ago, in Kent v. Dulles, the court for the first time invoked due process clause of the Fifth Amendment in ruling in favor of free travel. "The right to travel," wrote Justice Douglas for the majority, "is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law of the Fifth Amendment."

Must Freedom Riders comply with state and local statutes requiring segregated travel and terminal facilities?

In 1887 the Interstate Commerce Act made it illegal for railroads to discriminate or show prejudice against passengers. But in practice, the Interstate Commerce Commission for years went on the assumption that "separate but equal" facilities fulfilled the intention of the law. In 1941 the Supreme Court specifically ruled that trains could not be segregated if they crossed state lines, and five years later the court outlawed bus segregation as well. After the school desegregation decisions of 1954, ICC changed its ground rules, banned both segregated seating and "separate but equal" station restaurants and washrooms; the Supreme Court has since upheld the commmission. Last December the court stretched the principle further, ruled that station restaurants, even if not owned by the bus lines, must be integrated if they exist primarily to serve interstate passengers. As a result of earlier sit-in cases, the breach of the peace statutes that sent the Freedom Riders to jail in Jackson, Miss., are now under appeal. The grounds: the application of such laws is in fact a means of preserving racial segregation of public facilities--exclusion that the Supreme Court has held to be illegal.

Did the U.S. have the right to send U.S. marshals to Alabama against the wishes of state officials?

With or without Alabama's consent, Attorney General Kennedy had all the authority he needed to send FBI agents, marshals, or even Army troops to the troubled state. That authority rested in Section 333 of the Armed Forces Code--which derived from an 1871 Insurrection Act that was designed as a legal antidote against Ku Klux Klan rampaging. Section 333 authorizes the President to use "any means" to suppress "insurrection, domestic violence, unlawful combination or conspiracy" if state officials are unable or unwilling to offer citizens the protection of the law. The section has been used only three times. During the Reconstruction era, Ulysses S. Grant declared several counties in rebellion (notably in South Carolina), employed federal troops to arrest defiant Klansmen. In 1895 Grover Cleveland invoked the section to crush a strike against the Pullman Co. that had halted Midwestern railroad traffic. Four years ago, President Eisenhower used 333 to send the 101st Airborne Division to Little Rock. Attorney General Kennedy might also have relied, for legal authority, on the Federal Government's undisputed right to maintain interstate commerce. "The entire strength of the nation," wrote the Supreme Court in In Re Debs (1895), a case specifically reaffirming the right of free passage, "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care." Despite his hints that the marshals would be jailed if they violated state law, Governor Patterson clearly had no authority to interfere with the forces of federal intervention. By their oath of office, state and city authorities are sworn to uphold federal as well as local law. And since In Re Neagle (1890)--in which the Supreme Court overturned the murder conviction of a deputy marshal who killed a man while guarding a federal judge--U.S. Government officers have been held exempt from local law whenever the violation of a statute is necessary to carry out federal orders.

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