Red, Black, White by Mary Stanton;

Red, Black, White by Mary Stanton;

Author:Mary Stanton;
Language: eng
Format: epub
Publisher: Lightning Source Inc. (Tier 3)
Published: 2019-06-14T16:00:00+00:00


The Supreme Court

Herndon’s trial became a turning point in Ben Davis’s life. During trial preparations when he’d discussed Marxist theory with his client, the young attorney realized that he had more in common with Herndon than he’d imagined. After Herndon’s conviction, Davis joined the party. Later, he reflected on that decision: “Credit for recruiting me goes not to the communists but to the savage white supremacy assaults of trial Judge Lee B. Wyatt. . . . It required only a moment to join [the party], but my whole lifetime as an American Negro prepared me for that moment.13

In 1935, after receiving numerous death threats, Davis moved to New York City and organized for the party’s Harlem branch. He also edited the Negro Liberator and later the Daily Worker. Herndon, freed on bail pending appeal, also moved to New York City. The NAACP offered to underwrite his appeal, but Herndon chose to stay with his ILD team, now led by Whitney North Seymour, a New York appeal litigation specialist and a former assistant solicitor general with the Justice Department. Seymour’s petition to the U.S. Supreme Court maintained that Georgia’s insurrection statute violated the Fourteenth Amendment. Disappointingly, the justices ruled that they had no jurisdiction over the case because Davis had not raised that constitutional issue earlier. Herndon was ordered back to prison on October 28, 1935.

Seymour, a civil libertarian, but not a communist, refused to be discouraged. He chose to continue attacking the constitutionality of the statute rather than challenge the all-white jury system.14 To that end, he served Fulton County sheriff James Lowry with a writ of habeas corpus declaring that Herndon had been illegally imprisoned. In December 1935, former governor Hugh M. Dorsey, lately appointed to the State Superior Court, unexpectedly ruled that the insurrection statute indeed violated the Fourteenth Amendment.

In January 1936, Georgia officials appealed Dorsey’s decision to the Georgia Supreme Court. Solicitor General John A. Boykin contended that “the doctrine of violence is in the mind of every communist.”15 When that court reaffirmed Herndon’s conviction, Seymour remained undaunted. The justices had provided him with a path back to the U.S. Supreme Court. In the meantime, Herndon was again freed on bail pending appeal.

The ILD subsequently arranged two coast-to-coast Free Angelo Herndon fund-raising tours. A powerful speaker with a compelling story, the young bespectacled and always dapperly dressed Herndon attracted large crowds. He often appeared on stage with the Scottsboro mothers and a very penitent Ruby Bates, and he was subsequently invited to the White House to meet with First Lady Eleanor Roosevelt.

In February 1937, in Herndon v. Lowry, the U.S. Supreme Court finally addressed the Fourteenth Amendment issue. On April 26, in a five-to-four decision, the justices struck down Georgia’s insurrection law as an “unwarranted invasion of free speech.” That ruling not only voided Herndon’s conviction, but for the first time in U.S. history, a state law had been overruled to protect Fourteenth Amendment rights. The Herndon decision extended federal protection to free speech.

After serving almost four years in prison, Angelo Herndon was freed in May 1937.



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