Justice weeps with the passing of Jack Greenberg, a towering figure in the mainstream Civil Rights Movement, whose life stood against every bit of racial insanity that polluted and continues to pollute U.S. politics. Thurgood Marshall hired Greenberg for the legal team that won Brown v. Board of Education and then picked him as successor director of the organization known in the trenches as “the Inc Fund,” more formally the NAACP Legal Defense and Education Fund.
The Inc Fund made the Fourteenth Amendment the tip of the legal lance aimed at the heart of Jim Crow. Modern Indian fighters seek to turn that lance against us, which makes it critical to understand its history in the struggles of African-Americans, Mexican-Americans, and those Indians caught in the web of discriminatory laws and policies aimed at persons not members of the “white race.”
After the Civil War, the Constitution was amended to cleanse it of compromises with slavery. The Thirteenth Amendment abolished slavery, the Fourteenth guaranteed formal equality before the law, and the Fifteenth extended voting rights to non-white citizens.
Indians were not citizens at the time and the birthright citizenship set out in the Fourteenth Amendment was held not to have changed that.
The Supreme Court was still dominated by the Democratic Party, the political counterbalance to the “radical Republicans” who had passed civil rights laws in 1866 and 1875.
In 1873, the SCOTUS decided the Slaughterhouse Cases, neutering the privileges and immunities clause of the Fourteenth Amendment.
In 1883, the SCOTUS decided the Civil Rights Cases, declaring the Civil Rights Act of 1875 unconstitutional.
In 1896, the SCOTUS decided Plessy v. Ferguson, neutering the equal protection clause of the Fourteenth Amendment.
So ended the first attempt at Reconstruction, when one branch of government put public policy into reverse and taught those of us seeking change the importance of who controls the SCOTUS—a major issue in the current presidential election.
The next lesson in social change came from Charles Hamilton Houston, an African-American lawyer and law professor, remembered—when he is remembered—as “the man who killed Jim Crow.”
Houston died young in 1950, but not before mentoring Thurgood Marshall and passing on the legal strategy that would destroy Plessy v. Ferguson. Marshall’s NAACP would bring a series of cases carefully calibrated not to scare white people but demonstrating that facilities claimed to be “separate but equal” were nothing of the sort.
Courtesy NAACP Legal Defense Fund
The team of lawyers who argued Brown v. Board: John Scott, James Nabrit, Spottswood Robinson, Frank Reeves, Jack Greenberg, Thurgood Marshall, Louis Redding, U. Simpson Tate, George Hayes.
Greenberg was the last living lawyer from the leadership team that brought Charles Hamilton Houston’s strategy to fruition in Brown v. Board of Education. A unanimous Supreme Court in Brown held separate to be inherently unequal.
Embedded in this historical context is when the Fourteenth Amendment applies to Indians and when it does not. Indians that claim our separation to be part of our identity are not reaching for equality in U.S. society, which is the province of the Fourteenth Amendment.
The settlers have no claim to equality in tribal society, which is why Indian nations do not by their existence discriminate against white people.
When Thurgood Marshall moved on to the federal bench and named Jack Greenberg to run the Inc Fund, he kicked over a hornets’ nest that should be a cautionary tale for Indians about the dangers in the myth of “race.”
First, Marshall’s choice drove a wedge between Greenberg and the black members of the team that won Brown. Greenberg was indisputably “white.” But in addition to Brown, he was part of the defense team for Dr. Martin Luther King Jr. in the case that produced Letter from Birmingham Jail. In Furman v. Georgia, Greenberg’s team achieved a four-year moratorium on executions in the U.S.
When the Civil Rights Movement got embroiled in the affirmative action debate, Greenberg found himself crosswise with the Anti-Defamation League, which took affirmative action to be discrimination against white people—the exact argument made against Indians using an ahistorical view of the Fourteenth Amendment.
While all this was going on, Greenberg involved himself in the founding of the Mexican-American Legal Defense and Education Fund, a clone of the Inc Fund.
Subsequent to the Inc Fund, Greenberg taught at Columbia Law School and involved himself in defense of the Roma, a traditionally nomadic ethnic group facing discrimination in the European Union reminiscent of Jim Crow in the U.S.
American Indians, because of our tiny numbers, must always do politics in coalitions. Jack Greenberg’s death gives us reason to learn how Fourteenth Amendment law got to be something the Indian fighters think they can use. His life gives us reason to honor a man who lived the creed “liberty and justice for all” with an emphasis on all.
Jack Greenberg leaves his wife Deborah Cole, three sons, two daughters, and five grandchildren. One son predeceased him. He was a Navy veteran from World War II and he lived through the fight for Iwo Jima. He served the search for equal justice under law for all of his 91 years, a search that survives him.