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DIETZ v. ARKANSAS

March 31, 1989

JAMES G. DIETZ, IRMA HUNTER BROWN, JERRY JEWELL, WILLIAM WALKER, WILLIAM TOWNSEND, BEN McGHEE, DEXTER BOOTH, Individually and in their Representative capacity, PLAINTIFFS,
v.
STATE OF ARKANSAS: BILL CLINTON, GOVERNOR, in his official capacity; THE ARKANSAS GENERAL ASSEMBLY, each member thereof not a plaintiff herein, in his official capacity, DEFENDANTS



The opinion of the court was delivered by: WOODS

 HENRY WOODS, UNITED STATES DISTRICT JUDGE.

 The plaintiffs, with two exceptions, are black members of the Arkansas Legislature. They bring this suit to invalidate Amendment 44 to the Arkansas Constitution. Amendment 44 reads as follows:

 
§ 1. Action by general assembly to protect states' rights.
 
From and after the Adoption of this Amendment, the General Assembly of the State of Arkansas shall take appropriate action and pass laws opposing in every Constitutional manner the Un-Constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court, including interposing the sovereignty of the State of Arkansas to the end of nullification of these and all deliberate, palpable and dangerous invasions of or encroachments upon rights and powers not delegated to the United States nor prohibited to the States by the Constitution of the United States and Amendments thereto, and those rights and powers reserved to the States and to the People thereof by any department, commission, officer, or employee of such department or commission of the Government of the United States, or of any government of any Nation or Federation of Nations acting upon the apparent authority granted them by or assumed by them from the Government of the United States. Said opposition shall continue steadfast until such time as such Un-Constitutional invasions or encroachments shall have abated or shall have been rectified, or the same shall be transformed into an Amendment to the Constitution of the United States and adopted by action of three-fourths of the States as provided therein.
 
§ 2. Statutes for administration and enforcement of amendment -- Appropriations.
 
The General Assembly shall enact laws to insure the administration and enforcement of the spirit and letter of this Amendment; and shall appropriate adequate funds to effect the same, including a proportionate share of such expenses as may be necessary for the maintenance of regional committees created among the States for the preservation of rights belonging to the states and the people thereof.
 
§ 3. Regulation of health, morals, education, marriage and good order.
 
The General Assembly shall enact such laws under the Police Powers reserved to the States as may be necessary to regulate health, morals, education, marriage, good order and to insure the domestic tranquility of the citizens of the State of Arkansas.
 
§ 4. Public officers and employees -- No immunity for violation of laws enacted under amendment -- Forfeiture of office for violations.
 
No public official or employee of the State of Arkansas or of any political subdivision thereof shall have immunity from arrest, prosecution and trial for the violation of such penal laws as the General Assembly shall provide for the willful failure and refusal to carry out the clear mandates of this Amendment; and in addition to the penalties provided for by the General Assembly, shall automatically forfeit his or her office.

 Since the defendants concede that this amendment violates the Supremacy Clause of the United States Constitution, art. VI, §§ 2, 3, there is no reason to prolong this litigation. *fn1" Amendment 44 was the product of the demagoguery that followed the Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954) and 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753 (1955). In the hysteria that followed these decisions fanned by Arkansas office holders and those who aspired to hold office, the people of Arkansas in the 1956 general election adopted this amendment by a vote of 185,374 to 146,064.

 The intemperate text represents a reckless defiance of the rule of law. It is contrary to every decision rendered by the Supreme Court, even one written by such an advocate of states rights as Chief Justice Roger Taney, author of the Dred Scott decision. *fn2" The great expositor of the Supremacy Clause, however, was Chief Justice John Marshall, who wrote in United States v. Peters, 9 U.S. 115, 5 Cranch 115, 3 L. Ed. 53 (1809): "If the legislatures of the several states may, at will, annul the judgments of the Courts of the United States and destroy the rights under those judgments, the Constitution itself becomes a solemn mockery." Id. at 136.

 Any governor or legislator who defies the United States Constitution defies his solemn oath. If a governor had such power, in the words of Chief Justice Hughes, "The fiat of a State Governor, and not the Constitution of the United States, would be the supreme law of the land." Sterling ...


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