Interview with Burke Marshall
QUESTION 3
INTERVIEWER:

ANTIGUA?

Burke Marshall:

No, it isn't Antigua. . .lots of family there. I took, I, I spent a day with. . .

CAMERA CREW MEMBER:

THIS IS, UH, SOUND ROLL UH, 1124, TAKE UH, 10.

Burke Marshall:

Well, the, the sit-ins and demonstrations are sort of different. Uh, the, the sit-ins which started in 1960, basically, were uh, sit-ins at lunch counters typically, at uh, department stores and so forth, that s- that served black people everywhere except where they, and uh, that was a problem that couldn't be handled legally at all. There was a great deal of litigation over the legality of arrest of students that were sitting. And the Supreme Court, I think, by 1965, had about 3,000 cases which were involving sit-ins. Uh, the Department of Justice participated in every case that came up to the Supreme Court involving a sit-in, and we always participated on the side of the civil rights movement participants on different theories. I mean on one case we'd have one theory, another case we'd have another theory, but there was no sort of strong clear constitutional principle, uh, that could be relied on. And there was no uh, statutory congressional framework could be, uh, that could be relied on. That, that was the reason, that was the whole reason uh, for Title 2 of the, uh, Civil Rights Act of 1964. President Kennedy, when he sent that down to Congress, said, and, and I said over and over again to the Con- to the civil rights workers, that the only way you can deal with this is by establishing the legal right to be there. You can't deal it by trying to restrain the police or, or talking the uh, uh, lunch counter owners into behaving differently. That, that, that just didn't work, and so you had to have a rule of law that had to come from the legislature that would apply to everyone, and put everyone in the same situation, so that nobody could get an advantage out of sort of breaking the pact to uh, to, uh break up that pattern of behavior of refusing service to blacks. Now the demonstrations, if you want me to talk about the demonstrations, are, [ are ] a different problem. Uh, that, that is a uh, a, a right to speech problem, and a lot of those arrests for demonstrating, for picketing, just walking quietly, peacefully up and down the street with a sign, saying "Don't, don't eat, don't where you, where uh, don't buy where you can't eat," something like that. And those were protected by the First Amendment. There was nothing the Department of Justice could do directly though, but again, we could participate in, in litigation once it started and we did do that.