July 2006 Berry

Mennonites, African-Americans, the U.S. Constitution

and the Problem of Assimilation


Abstract: European-American Mennonites and African-Americans are quite different from one another even though both are minority groups. These differences become especially evident in the issue of assimilation into mainstream American society. Mennonites have traditionally regarded assimilation as threatening to their identity and have engaged government with techniques of supplication and accommodation as a means of limiting their assimilation. African-Americans, on the other hand, have been more inclined to pursue assimilation in American culture and have appealed to constitutional law and the power of the courts in an effort to achieve this goal. Each group can learn from the tradition of the other. Constitutionalism may be a useful means for Mennonites to pursue goals of peace and nonconformity, while African-Americans may find in the Mennonite story of supplication and accommodation insights into the next stage of their ongoing process of liberation.

This essay seeks to bring congruity to several contradictory or discordant themes in my experience as a Mennonite and an African-American. For over 40 years I have been part of the Mennonite Church. It has been my life, work and family. Its concerns have been my concerns; its teaching and ideals my own; its history, my history. There have been many in the Mennonite Church whom I have looked upon as surrogate mothers and fathers and whose examples I have tried to follow. My children have been born and grown to adulthood in the midst of its nurturing embrace. It has been God’s gift to me.

On the other hand, my sense of being African-American is strong. My habits, psychology, fears, hopes, self-understanding and worldview have been shaped by what some have labeled the “black experience.” Mennonites in the U.S. are overwhelmingly white people, indistinguishable from the majority of white America in their dress and behavior. Nevertheless, they have been and continue to be very different from that same white American majority in significant ways, especially during times when the nation is at war. They are, in a very real sense, a minority group, although it is less the case now than it was when I was a child attending summer Bible school at the Hartville Mennonite Church in Ohio. As a member of the Mennonite Church I have often asked myself: How did I, a member of the country’s most despised minority group, manage to become a part of another?

I readily confess my ambivalence. During moments of quiet reflection I have sensed that I have been given the opportunity to be a better human being precisely because I am a child of both the African-American and Mennonite traditions. At other times, I sense that perhaps I do not quite belong, that some sort of invisible partition sets me apart from white Mennonites, that there is still some part of my African-American story that does not quite fit and perhaps cannot be made to coincide with the Anabaptist-Mennonite one. It is not that I have felt rejection from white fellow Mennonites. It is rather that the African-American in me resists being taken where my Anabaptist-Mennonite principles, in theory at least, propose to take me. One of these points of ambivalence has to do with war. I agree that war is evil and wrong; and no doubt the most evil kind of war is one that is fought even though it could have been avoided. Yet, if I reject the Civil War, for example, as the logic of my Anabaptist-Mennonite principles tells me that I must, then I give tacit approval to the enslavement of my African-American ancestors; and that I can never do.

Though Mennonites in the U.S. and African-Americans are both minority groups, their two traditions are a study in contrasts. There is the obvious contrast in ethnicity. The Africans who wound up in the U.S. were a polyglot, comprising peoples from diverse ethnic backgrounds and traditions and speaking diverse languages. The system of domination into which they became engulfed, however, refused to acknowledge such differences and focused instead on the color of their skin, perhaps their most obvious similarity. African-American as an ethnic concept, in this sense, was a creation of the white world, forced upon black people for largely economic and sadistic reasons. Mennonites by comparison became an ethnic group as a result of voluntary association. Their commonality was born of their own decisions to join a particular society of Christian believers; African-Americans’ commonality was born of the decisions of others. The Anabaptists’ antagonists oppressed them because the Anabaptists chose a different set of beliefs and would not renounce them. African-Americans’ antagonists, on the other hand, oppressed them because of who they were.

From the time the United States struggled to establish its independence, black people have actively sought to participate in its wars to demonstrate that they were genuinely American. Mennonites, by contrast, have actively sought to avoid participation in those same wars in order to maintain their religious and cultural identity.

Mennonites have traditionally regarded political participation, especially at the national level, as a threat to their identity as a community of believers. African-Americans, however, have learned that political participation is essential if they are to lessen the impact of discrimination against them. For Mennonites, the U.S. has been a bountiful land, full of economic opportunity-too much, some would say-but for African-Americans the country’s bounty has generally been elusive and mirage-like.

Perhaps the most fundamental difference is the way the two peoples have faced assimilation into the larger American society. For African-Americans, assimilation has been one of the most important objectives, if not the most important. Mennonites, for the most part, have perceived assimilation as a serious threat. Nowhere has this basic difference expressed itself more dramatically than in understandings of civil rights and liberties under the U.S. Constitution. A study of assimilation against the backdrop of alternative perspectives on constitutional law sheds significant light on the persistent efforts by African-American Mennonites to make the church more relevant to their circumstances.

Assimilation, according to sociologist Francis Merrill, is a “process of interpenetration and fusion in which persons and groups acquire the memories, sentiments, and attitudes of other persons or groups, and, by sharing their experience and history, are incorporated with them in a common cultural life.” It is a gradual process by which the individual comes to share the expectations of another group and slowly acquires a new set of definitions.[1] Similarly, John J. Macionis defines assimilation as the process by which “members of minority groups gradually modify their ways of life to conform to patterns of the dominant culture.”[2]

There are at least two dimensions to the matter of group assimilation: an inward one, which pertains to the way those undergoing the process experience it; and an outward one, shaped by nongroup members, including decision-makers for the society. Each of these plays a critical role in determining whether or not assimilation occurs, and the manner in which it occurs. Depending upon its predilection, a group may want to remain distinct from the rest of the society; but the extent to which it is able to do so is determined, at least partially, by the preeminent rule maker for the society-government. The Amish, for example, may decide that they want to maintain their distinctiveness by driving only horse-and-buggy vehicles, but government will help decide whether they will be able to do so legally or not. In other words, government can help or hinder a group’s effort to assimilate or remain apart from the larger society.[3]

Clearly, as Mennonites and African-Americans have faced problems regarding their assimilation into U.S. society each has found it necessary to seek the assistance or forbearance of government in meeting the challenge. Though each has chosen a different method by which to do so, both groups, on the whole, have been highly successful in employing the method they have chosen. African-Americans have been most attentive to the Bill of Rights and judicial procedures related to civil liberties; Mennonites, by contrast, have shown virtually no interest in these questions. Thus, in contrast with their active engagement on behalf of their Amish cousins’ struggle over compulsory school attendance a generation ago, European-American Mennonites have failed to identify with the aspirations of African-American Mennonites.

From the time they first settled in North America, black people have wanted to participate in the emerging American experiment. Their goal has been to become an integral part of a new society. They dreamed of replicating the experience of one of the first black men who lived in early Virginia. Though Anthony Johnson came to the colony as a servant in 1621, by 1640 he had become a successful landowner who enjoyed the rights of a free Englishman. By 1650 he had acquired 250 acres of land and had five people, some of whom were white, working for him.[4] Anthony Johnson’s example, unfortunately, would not be replicated in Virginia; for, in 1640, the same year that Johnson bought his first piece of land, a Virginia court ruled that John Punch, a black runaway indentured servant, would pay for his offense by remaining indentured to his master for the rest of his life while Punch’s two white fellow runaways had to suffer the extension of their term of indenture for a mere four years.[5] By 1661 Virginia had made black slavery legal. Black people would not be allowed to realize their dream of assimilating into the developing American society.

That dream would be deferred for over 200 years. Thanks to the settlement at Appomattox in April of 1865, John Punch’s progeny’s hope was revived. Having made the promise of liberation in January, 1863, President Lincoln was compelled to fulfill it after the Civil War was over. Black people would be free. The president and the Republican leadership in Washington had started the process to add a Thirteenth Amendment to the U.S. Constitution even before the formal surrender. Despite Lincoln’s assassination on April 15, 1865, the ruling Republican majority in Washington would stand firm on the issue. Dred Scott v. Sandford, the Supreme Court case that had formally legalized slavery, would be overruled, and the nation, as the fallen president had said at Gettysburg almost a year and a half earlier, would have a new birth of freedom. The ratification process went forward as the government made each Southern state’s reentry into the Union contingent upon its ratification of the proposed amendment. By December 1866 the task was completed. Slavery was no longer legally permissible in the United States. The amendment also contained a second and potentially powerful clause that granted Congress the power to enforce the amendment by appropriate legislation. Leaders of the defeated Confederacy conspired to teach the rest of the nation a lesson. Even though they had lost the late war, they still had the will and the means to prevent the amendment from having its intended effect. Thus, soon after being readmitted into the Union, state after state in the old Confederacy passed legislation intended to defeat any meaningful attempt by African-Americans or their supporters to assimilate.

Among other things, the “black codes” issued by Southern legislatures prohibited African-Americans from voting, serving on juries in courts of law, and traveling and working when and where they pleased. A black man could be arrested if he quit his job; and he could be imprisoned for breach of contract. Thus, despite the new amendment, the ghost of John Punch still haunted Africans in America. To be sure, Congress responded to the codes with counter legislation. In 1866 it began the process of passing a civil rights act grounded in the newly ratified Thirteenth Amendment. After declaring that African-American people were citizens of the United States, the Civil Rights Act of 1866 provided, in part, that African-Americans “‘. . . shall have the same right in every State . . . to make and enforce contracts, to sue, be parties, give evidence, to inherit, purchase, lease, hold, and convey real and personal property . . . as is enjoyed by white citizens. . . .'”[6]

The new legislation was nonetheless vulnerable. Aside from the real possibility that the U.S. Supreme Court could declare the act unconstitutional, especially its declaration regarding African-American citizenship, nothing prevented a future Democratic majority in Congress from simply rescinding the legislation. Accordingly, they sought the nearest thing to certainty that the political system had to offer-another amendment.

In June 1866, Congress drafted and passed the Fourteenth Amendment to the U.S. Constitution and submitted it to the states for ratification. The amendment left no doubt about whether African-Americans would be citizens of the United States. Section One of the amendment provided that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Ratified in 1868, the Fourteenth Amendment seemed to assure the assimilation of black people into American society. Or did it? Commentators on the Fourteenth Amendment have noted-and, indeed, the famous case of Brown v. Board of Education of Topeka would confirm-that for all of their professed noble purposes, the framers of the Amendment thought in minimalist terms. The amendment protected African-Americans from state legislation such as the black codes; but its framers established racially segregated public schools in the District of Columbia. The action served as a bulwark against state terrorists, but it failed to speak explicitly to the freedmen’s need for similar protection from private paramilitary terrorist organizations such as the Ku Klux Klan, the Knights of the White Camelia and the Pale Faces. What of public accommodations? If black people paid the same money that whites paid to ride ferries, coaches and trains, were not the providers of those services obliged to serve black people on the same basis as whites? The framers of the new amendment simply did not address such issues, and there is sound evidence to suggest that they never intended to do so.[7]

Most telling of all, the Fourteenth Amendment did not guarantee political rights to African-Americans. Since voting in both state and federal elections was administered by state officials, the framers apparently assumed that if the provisions of the Fourteenth Amendment were enforced against states, the electoral process would be adequately protected and African-American people would be able to vote freely. By the end of the 1860’s, however, the campaign of anti-black terrorism had so successful neutralized the Republican Party’s support in the South among African-Americans that the sense of political survival among party leaders prompted them to draft yet another proposed amendment. In February 1869, Congress submitted the Fifteenth Amendment to the U.S. Constitution to the states for approval. Like the Thirteenth, the Fifteenth Amendment was brief: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The second section gave Congress the power to enforce the amendment’s provisions by appropriate legislation. Before 1870 came to an end, three-quarters of the states had ratified it.

Within the space of four years, a most unusual development had occurred. Not since the ratification of the Bill of Rights had so many amendments been added to the U.S. Constitution in such a short period of time. But what did all this activity actually mean? African-Americans were said to be legally free. As a matter of law, they were now citizens; and the government had to treat them as it treated white people. African-Americans could now participate in decisions regarding governance by voting. Yet, by the end of 1870 it could be accurately said that no African-American living in the U.S. was in fact as equal to white fellow citizens as Anthony Johnson was equal to white fellow Virginians in 1640.

As the century proceeded into its last quarter, the signs indicated that matters were getting worse for African-Americans. When, in April 1873, a white mob massacred nearly 100 African-Americans in Colfax, Louisiana, the federal government successfully prosecuted the malefactors under a statute based on the recently ratified Fourteenth and Fifteenth Amendments. But three years later the U.S. Supreme Court reversed the convictions, ruling that because private individuals, not government officials, had violated the dead men’s civil liberties, Congress was powerless to enforce the legislation.[8] In 1883 the high court declared unconstitutional a federal law that prohibited owners of hotels, restaurants and theaters from discriminating against African-Americans on account of their race. The reason for the act’s unconstitutionality? It attempted to proscribe discrimination by private persons as opposed to discrimination by government officials.[9] When the Louisiana legislature passed a law that required the separation of black and white passengers on public transportation systems, the court in Plessy v. Ferguson declared that the law was constitutional because the Fourteenth Amendment did not prevent state laws from separating the races; it only required that in doing so they provide equal facilities.[10] With that decision in 1896, the age of Jim Crow was born.

Southern white leaders in the Democratic Party always understood that if African-Americans exercised their right to vote and otherwise participate in the electoral process, their party’s hold on the South would be less secure. Thus, Democratic Party leaders made a deliberate effort to disenfranchise black people. They did so by supplementing a strategy of terrorism and intimidation with methods calculated to disqualify black people from voting. State legislatures throughout the region began requiring voters to pass literacy tests in order to vote. They also required prospective voters to prove that they owned property and to pay a fee called a poll tax before voting. It worked. The South was not the first to implement such practices to disenfranchise voters. Massachusetts and Connecticut had used them in order to limit the impact that eligible immigrant voters would otherwise have had on elections; and Rhode Island required naturalized citizens to show proof of property ownership before they could vote without making the same requirement of natural born citizens. It appears that some of the same congressmen and senators who voted to send the Fifteenth Amendment on to the states for ratification approved of such practices. Accordingly, such regulations could not be considered as violations of the amendment; and the U.S. Supreme Court did not declare them so. The only prohibition in their application was that they should not be enforced on account of race.

The literacy test, though, did pose a problem for the South since illiteracy was much higher, generally, for that region than for other parts of the country. If the literacy test were applied equally, many white voters as well as blacks would have been disenfranchised. White racist ingenuity triumphed, however, as a number of states in the South came up with a device called the “grandfather clause.” As applied, it effectively waived the literacy requirement for those voters who were the offspring of persons who were eligible to vote before 1867-the year Southern African-Americans received the franchise-or who had fought on either side in the Civil War.

The foregoing developments, in combination, effectively emasculated the movement to assimilate black people into the society of their birth. The “separate but equal” doctrine opened the door to the implementation of regimes of racial discrimination throughout the nation; the doctrine of “private” versus “state” action prevented the federal government from protecting black people from the fury of the white majority; and the right of African-Americans to vote was limited to only the most well-to-do. The emerging system of domination could not have succeeded without the cooperation of the Republican Party to which African-Americans looked for assistance and to which they gave wholehearted support well into the twentieth century. The federal government essentially conceded that Southern whites should have their way with African-American people. And have their way they did. A successor system to slavery, one of domination, characterized by a regime of rigid racial segregation sometimes referred to as “Jim Crow,” became universal in the South. Practically everywhere, blacks were forbidden to associate with whites. Laws forbade them from drinking water from fountains where whites drank, from attending schools where whites attended, from sitting in seats in courtrooms where whites sat and from burying their dead where whites buried their dead.[11] Politically, African-American people became irrelevant.

Blacks who refused to respect, or whom whites perceived as refusing to respect, such conditions could expect to face sanctions ranging from a benign warning to bestial lynching.[12] The average number of black people who were lynched annually in the 1880s was, at a minimum, 67; in the 1890s it rose to 111; 57 in the first decade of the twentieth century and between 21 and 20 during the period 1910-1935.[13] By 1900, the verdict rendered by the dominant groups in the U.S. was clear: regardless of what the American dream had promised to its inhabitants, black people should not be allowed to assimilate into the society.

Yet the changes brought about in the U.S. constitutional order had not been a total loss. Though the Supreme Court had not interpreted the new amendments favorably toward black people, the personnel constituting the court would change; and, while the court declared unlawful much of the legislation that Congress had passed during the period on behalf of freedmen, much of it remained, although arguably it was like the rusted out armaments on a forgotten battlefield. Moreover, a few of the Supreme Court’s decisions had given African-Americans cause to hope for a better day. The court had affirmed, for example, the federal conviction of a Virginia state judge who had been found guilty of systematically excluding black people from juries in his court.[14] Similarly, in 1880 it held that in a jurisdiction where black people made up 15 percent of the population, but no blacks had ever served on juries, discrimination could be proved without showing that state officials consciously intended to keep blacks from serving as jurors.[15]

Even as Jim Crow triumphed, a small group of African-Americans steeled themselves for battle to achieve assimilation. Led by the indomitable Charles Hamilton Houston, they settled upon a legal strategy to force the white majority to permit them to assimilate and become an integral part of the United States. They had founded a civil rights organization, the National Association for the Advancement of Colored People (N.A.A.C.P.). While it would be for colored people, it would welcome the small white community of good will, which had always existed in the United States, to join its efforts. Houston, first as the dean of the law school at the all-black Howard University in Washington, D.C., and then as chief legal counsel for the N.A.A.C.P., devised a way to methodically undermine the foundations of the Plessy doctrine of “separate but equal.” Houston died prematurely, leaving to his young and equally indomitable protg Thurgood Marshall the responsibility for completing the project.

In a way, the logic behind the strategy was simple. Houston understood that the separate but equal doctrine had no integrity-that it had been from its very beginning a surrogate for the old slave system the nation could no longer abide and that therefore it was a fraud. Although most whites, and especially the leaders of the country, thought that slavery was bad for the U.S.’s image, they also believed that white people were superior to blacks and that the two could never meet on socially equal terms. Thus, the system was never meant to grant equality. Houston would force apologists for the “separate but equal” logic to do one of two things: make the system truly equal or abandon it. He bet that they would choose the latter. He and Marshall chose to start with graduate and professional schools.

Donald Murray, a black resident of Maryland, had graduated with honors from Amherst College and applied for admission to the University of Maryland law school. He wanted to practice law in his home state, and for that reason he thought it would be best if he attended the law school at the University of Maryland. The law school denied him admission on the grounds that the institution did not accept black applicants. Since Maryland did not have any separate law school for blacks he would have to obtain acceptance in a law school in another state and apply to the government of Maryland for tuition grants to defray the costs of his matriculation. Instead, Murray obtained legal representation from the N.A.A.C.P. and filed suit in Maryland state court arguing that Maryland’s separate but equal law, as practiced, violated Murray’s constitutional right to an equal opportunity to become a lawyer in Maryland. The state of Maryland, the N.A.A.C.P. maintained, had a duty to provide Murray the same opportunity to study law in the state as it provided the whites. If Maryland intended to keep its segregated school policy, it would have to supply a law school for blacks such as Murray that was equal in caliber and stature to the one at the University of Maryland. The Maryland courts agreed with him; and since there was no possibility that Maryland would start a law school to meet the needs of one student, the courts ordered Murray admitted.[16]

Although Maryland had no funds to provide tuition for its black residents who were forced to study law in other states because the state’s only law school did not admit black applicants, Missouri did. Thus, when Lloyd Gaines received his notice from the University of Missouri law school denying him admission on account of his race, its officials informed him that the state would provide tuition money for him to attend law school outside his home state of Missouri. Alternatively, he could request the establishment of a black law school at Lincoln University, the state’s university for African-Americans. Gaines also sued; and when the U.S. Supreme Court reached a decision on his appeal in 1938, its majority opinion read as though Houston himself had written it. In the words of Chief Justice Charles Evans Hughes, “‘The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State.'”[17] Missouri law had mandated separation, but it had failed to mandate the equality half of the equation. The court dismissed the prospects of a black law school at Lincoln University as an illusory promise. Gaines would have to be admitted to the University of Missouri law school.

Although the U.S. Supreme Court never ordered Maryland and Missouri to end segregation, leaders of Southern governments became worried-and rightly so. The court’s message was clear: if you want to have racial segregation, you will have to offer equal opportunities as well. Just as Houston had surmised, the states were not ready to pay the price.

The state of Texas opted for a different solution. In 1946, after Heman Sweatt challenged the University of Texas law school’s denial of his application for admission, Texas legislatures created a law school in Austin taught by faculty from the white law school in a building the state had rented across the street from the state capitol. The state law library doubled as the new school’s law library. The U.S. Supreme Court had to decide whether this arrangement met the standard ostensibly required by the Plessy decision. After all, as a matriculant, Sweatt had access to very capable teachers, and the state’s law library was acknowledged to be on a par with the University of Texas law library. Marshall, however, argued that Texas did not meet the requirements of the equal protection clause. The law library was not set up for students; the new law school had no moot court; it had no law review; but more important, it did not have what he called “those intangible factors.” The University of Texas’ reputation and the ambience of the white law school that provided students with opportunities to establish contacts that would in turn help establish their careers were superior to what Sweatt was being offered. Moreover, a legal education included more than going to classes and listening to teachers. It assumed a student body engaged in vigorous debate and the free exchange of ideas about the law. The legal education that Texas was offering to white students was not equal to its plan for blacks.

Though Texas appeared to present a harder case than the ones in Missouri and Maryland, the court did not struggle with it. One of its deciding members, Tom Clark, had graduated from the University of Texas law school, and he explicitly recommended that the court overrule Plessy in the decision it was about to render. The rest of the court paid him no heed on that question, but all nine of them ruled in Sweatt’s favor.[18] The stage was now set for the final challenge to Plessy.

The foregoing cases were only a sampling of the many that Marshall and the N.A.A.C.P. Legal Defense Fund brought before state and federal trial and appellate courts. The organization challenged the enforcement of restrictive covenants in the sale of housing;[19] they challenged the white political primaries in states such as Texas;[20] they challenged Virginia’s laws which mandated segregation in public accommodations on the grounds that the law burdened interstate travel.[21] And the challenges were overwhelmingly successful.

This litany of success should not imply that Houston and Marshall were the only important figures to resist the Plessy decision, or that the N.A.A.C.P. was the only organization to make meaningful gains on behalf of African-American people. In 1941, for example, Philip Randolph, an organizer of African-American unions, successfully persuaded President Roosevelt to ban racial discrimination in industries that supplied the federal government with goods and services during World War II by threatening to organize a march on the Capitol. Likewise, African-Americans turned out at the polls to elect leaders who supported issues that mattered to them.[22] They coalesced with other groups to help defeat incumbent officials who voted against their interests. When Senators Henry J. Allen of Kansas and Roscoe McCulloch of Ohio voted for the confirmation of a nominee to the U.S. Supreme Court who said that the participation of blacks in politics was a source of evil, black voters helped defeat them; and they voted against those members of Congress who voted against the anti-lynching law.[23] Certainly the New Deal administration included more African-Americans who served as advisers to the government than any other in the history of the United States up to that point. Yet, despite all of these other activities, resort to the courts-mostly federal, but occasionally state-was among the most important tools African-Americans had at their disposal to achieve the goal of assimilation between 1900 and 1955.

This became even clearer in 1954 with the U.S. Supreme Court’s decision in Brown v. Board of Education of Topeka Kansas et. al. The case put the Houston-Marshall strategy to its ultimate test because it finally forced the high court to decide whether the “separate but equal” doctrine had been wrong in the first place. In 1896 Henry Brown, a Michigan Republican, wrote for the majority that the purpose of the Fourteenth Amendment’s Equal Protection clause “was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or of commingling of the two races upon terms unsatisfactory to either.”[24] It was not a foregone conclusion that the court would overrule Plessy v. Ferguson, despite the line of cases that the N.A.A.C.P. Legal Defense Fund had so carefully developed up to 1954. The success of these cases was based on the fact that the Jim Crow governments involved had not provided equal facilities, but they did not challenge the fundamental logic of Plessy. It is true that the Sweatt case, by suggesting that “equal” meant far more than physical facilities, had created a potentially huge problem for the South. Given the outcome of that case, one could still logically argue that if a Jim Crow state had a law school for whites that was ranked among the top ten in the United States, then that state had to provide a law school of substantially the same caliber for blacks. Such a standard might be difficult for the state to meet, but it was not impossible. Thus, Plessy was still in play.

More important, when the case arrived at the Supreme Court of the United States, a preliminary head count revealed that only a bare majority of five justices were ready to vote in favor of the black plaintiffs and overrule Plessy. The plaintiffs maintained that segregated schools were an inherent violation of equal protection because they engendered an abiding sense of inferiority in African-American children. The states argued (correctly) that the same Congress that submitted the Fourteenth Amendment for ratification had also established segregated public schools in the District of Columbia. They further argued that in Northern cities where blacks attended de facto segregated schools the students did not display any abiding sense of inferiority. And they confessed that they had not yet made the schools equal, while insisting that, with time, they would. It was a strong argument.

In the end, however, the court unanimously rejected the states’ position. It did so largely because of the role of Chief Justice Earl Warren. Warren sensed that in post-World War II America, state-mandated racially segregated schools were inappropriate for at least three reasons. First, in the years since the Plessy decision, education had become critical for society. Pointing to compulsory school attendance laws, Warren noted that education was perhaps the most important function of state and local governments. Where the state had undertaken to provide access to education, the Fourteenth Amendment required that the state provide it to all equally. Second, Warren was convinced that state-ordered segregation was indeed detrimental to the psyches of black children because it instilled in them a sense of inferiority from which they were unlikely ever to recover. Third, Warren seems to have been guided by the common sense argument that a country that held itself out as the leader of the Free World had no moral, legal or political basis for maintaining legal separation of people simply because of the color of their skin.

Despite the positive ruling, the court left unanswered many difficult questions. Nonetheless, it was clear that if the decision were enforced, the road black people would have to travel toward the goal of assimilation into American society would be less rocky and the destination itself more certain. For African-Americans, U.S. constitutional law offered the promise of the sort of prosperity Anthony Johnson had enjoyed before the nation was founded. Though their initial experience with American constitutionalism during the period 1870-1900 was disappointing, the successes of the 1930s and 1940s convinced them that it was the best means available for destroying state-enforced racial segregation, the most formidable impediment to their freedom. That this belief was confirmed in Brown only increased their propensity to view the courts as the protector of the rights of minorities in the face of powerful majorities.

In a sense, African-Americans had no other choice. The typical way of effecting change in pluralist democracies is through the franchise, coalition-building with other groups and the transformation of accumulated economic power into political power. These alternatives were simply not available to African-Americans in the South. Though most of their political and economic interests coincided with those of poor whites in the region, the latter valued racial segregation more than they did the prospect of seeking allies among black groups. Moreover, between 1889 and 1908 virtually the whole South had adopted laws intended to restrict African-American access to the franchise. Those laws, aided by both government and privately-sponsored terrorism, essentially nullified any clout the African-American vote in the South might have had. To be sure, in Northern cities where African-Americans were concentrated in numbers large enough to form critical masses, they did make effective use of the franchise; and when their interests coincided with those of voters from other sectors of the society, candidates for public office took note, or wished they had done so. The issue of racial segregation itself, however, was not subject to challenge by way of conventional pluralistic politics.

How did Mennonites experience assimilation into U.S. society during this same period of time? Like African-Americans, Mennonites are a minority group in a very real sense. Their belief in nonresistance (or the “peace position”) and adult baptism, and their view of the church as an interconnected community of believers who share with and care for one another, all distinguished Mennonites from the majority of the citizenry. So too, did their traditional emphasis on being separate from the world in accordance with Paul’s injunction in Romans 8:28. Known as “the quiet in the land,” Mennonite immigrants to the U.S. generally desired to maintain their distinct identity, separate from the corrupting influences of the dominant culture. Reinforcing this perspective was the sense of intense religious persecution that many of them inherited from their ancestors. Although explicit forms of persecution had abated, during popular wars-as in World Wars I and II and the late Gulf War-the reluctance of many Mennonites to display and praise the flag made them subject to intolerance, intimidation and retribution from the larger community.[25] Indeed, some of the descriptions of what Mennonites endured during the World War I for refusing to purchase war bonds or for being conscientious objectors were similar to the experiences of African-Americans during the era of Jim Crow. Some Mennonites were the near victims of lynch mobs, while others saw their property destroyed with impunity.[26]

Mennonites were deeply ambivalent about their relationship to the U.S. government and its laws. On the one hand, experiences of persecution in Europe at the hands of powerful state churches led them to a deep appreciation for the principles of religious liberty, separation of church and state, and religious toleration. Moreover, men such as James Madison argued persuasively that the U.S. was essentially a nation of minorities due to the reality of countervailing interests and the propensities of those interests to organize and overlap, and Mennonites recognized themselves as a legitimate part of that plural reality. Establishing a home in the United States enabled Mennonites to simultaneously satisfy their most cherished earthly longing and to become members of a dominant group.

In another sense, however, the idea that European-American Mennonites constitute a minority group in the United States is puzzling. By the time of the new nation’s Second Founding in 1788, its leaders had made it clear that they intended for the United States to be a white man’s country. Treating black people as property and viewing American Indians and the territory they occupied as objects of subjugation and conquest gave concrete expression to that view. The U.S. may have been a nation of minorities, but just as important, it was simultaneously a nation of a self-consciously white majority. As part of the white majority, Mennonites were permitted to enjoy the fruits of their labor and ingenuity as well as the presumption that they were equal to other citizens, a reality most Mennonites never seem to have questioned. Even though they may have described themselves as separated from the world, in their daily lives Mennonites in the late eighteenth and early nineteenth centuries “constantly mixed with their neighbors in mills, markets and shops,”[27] and they acquired possessions and achieved economic prosperity as did other whites. Indeed, even their nonresistance pacifism did not cause them to suffer persecution in substantial numbers during critical times such as the War of 1812 and the Civil War. Thus, European-American Mennonites living in the U.S. at once constituted both a minority group and membership in a racial majority.

When assimilation issues emerged in which the government’s role was prominent, European-American Mennonites responded in a manner quite different from that employed by African-Americans regarding racial segregation. Nowhere was this more apparent than in the matter of nonresistance to war. Opposition to participating in war did not become a critical problem for European-American Mennonites until the U.S. entered World War I. During the Revolutionary War, it appears that Mennonite nonparticipation evoked, at worst, the assessment of fines.[28] The Civil War presented a greater challenge because the government instituted general conscription. Still, the military draft law provided exceptions that prospective Mennonite draftees and church leaders apparently found tolerable. Mennonites whose consciences forbade them from participating in the struggle could contribute money toward the care and treatment of wounded soldiers and their families, or they could pay money into funds that state governments used to entice enough volunteers to fill their assigned quotas.[29] Draft legislation also made it possible for prospective Mennonite draftees to hire substitutes directly.

The federal government’s attitude in World War I, however, was quite different. The draft law of 1917, though respectful of citizens who had scruples about taking the lives of other human beings, created two classes of inductees: combatants and noncombatants, both of whom would be under the exclusive jurisdiction of the military establishment. Except for exemptions granted to farmers and the infirm, the law spared no one from induction. This meant that for the first time in the history of the Mennonite Church in America, young Mennonite men were required to become a part of the nation’s organized military effort. The church became, as Mennonites often say, quite concerned.[30]

Heightening the tension for Mennonites was the broad sense in American society that World War I had all of the elements of a moral crusade. President Wilson described the war as an effort to make the world safe for democracy; he and other leaders communicated the depth of that conviction to the citizenry in ways that cast the war as a contest between good and evil. Non-Mennonite neighbors, local officials and governmental leaders all expected Mennonites to do “their part” to help achieve victory, at least by contributing to the war bond drive. If Mennonites, especially those of means, failed to invest in war bonds, they were subjected to reprisals.

Such pressures on them to support the military effort struck at the heart of Mennonites’ identity. How could they respond to such challenges in a way that allowed them to retain their identity as a people? The question became acute when, in 1917, young Mennonite inductees were transported to military training camps administered by the War Department. Although technically allowed to define themselves as noncombatants, conscientious objectors in these camps were subjected to tactics aimed at persuading them to become regular soldiers. When peer pressure, threats of physical violence and psychological harassment did not succeed, more egregious methods, including torture, were used. Although Mennonite historian C. Henry Smith believed that Secretary of War Newton Baker “displayed the greatest consideration for the scruples of the sincere conscientious objectors” in the camps,[31] a countervailing view suggests that the secretary may have deliberately allowed subordinates to harass conscientious objectors.

Clearly, Mennonites viewed their opposition to military conscription in terms of their rights to freely practice their religion convictions. That is, they regarded conscientious objection to war as a civil liberty granted by the U.S. Constitution. So mounting a legal challenge to the Wilson administration’s draft legislation via the courts would have been an obvious response to the problem: after all, the First Amendment prohibited the federal government from interfering with the free exercise of one’s religion.

For several reasons, however, this proved not to be a good option. First, the same nonresistant principles that prevented Mennonites from going to war also prevented them from going to court. Second, it was highly doubtful that the courts would have sustained such a challenge by conscientious objectors on First Amendment grounds, especially in 1917. By then the Supreme Court had made it plain that religious belief was absolute, but that the government was constitutionally able to regulate behavior committed in the name of religion. Moreover, such a challenge would have faced the claim that the U.S. Congress had expressed itself on the matter after giving it due consideration. While the 1917 draft legislation was being written, Congress received petitions from religious pacifist churches requesting that the law make exemptions for conscientious objectors. Arguably, Congress believed that the provisions contained in the act were an ample response to such petitions. Finally, inasmuch as the war was perceived as vital to the security of the nation, the courts tended to defer to the executive and legislative branches of the government.

In the end, Mennonites resisted the pressures to conform through a combination of direct, face-to-face supplications to key decision-makers and a willingness to accommodate governmental actors when those actors attempted to respond positively to requests from Mennonites.

In the long run, the response proved to be quite successful. That fact should not come as a surprise, given that European-American Mennonites were members of the white majority as well as a recognized religious minority. The former made it possible to gain access to the centers of power. The latter, given the nation’s commitment to religious freedom and toleration as enshrined in the First Amendment, enabled Mennonites to gain a respectful, if not always sympathetic, hearing from decision-makers.

Bargaining, of course, lies at the very heart of the policy-making process. If the proposed policy is one in which the government will distribute resources or regulate the behavior of citizens, government decision-makers will inevitably give an ear to those in the society who perceive that they are most affected by the prospective law or rule. This “pluralist” system of governance assumes that the political process is sufficiently open to allow all those who wish, to speak out on their own behalf or on behalf of others. For most of U.S. history, this system was not, generally, open to African-Americans; but it was for Mennonites. When faced, for example, with the compulsory draft law of 1862 Mennonite leaders in Pennsylvania appealed directly to Governor Andrew Curtin, who was ultimately responsible to the federal authorities for filling the quota of recruits assigned to the state. They sought relief from the law by asking the governor to exempt their young men from the draft in exchange for the payment of fines. When, on another occasion, Mennonite leaders approached the governor, Curtin reportedly responded by asking the supplicants what had they done for his administration. In particular, he asked whether they voted. When they indicated that they did, he allegedly responded that his administration would do something for them.[32]

Mennonites in Ohio and apparently Indiana used the same approach, though the response to their requests is less clear. At least some Mennonites in Ohio achieved relief by paying fines which, presumably, were then used to fill the state’s quota by recruiting volunteers. The situation in Virginia appears to have been somewhat similar, although Mennonites were initially forced to join the military or go to prison. By the end of March 1862 Virginia passed legislation that permitted Mennonite and other conscientious objectors to avoid military service by paying a fine in combination with a property tax.[33] Precisely what prompted Virginia’s leaders to reverse the state’s position is unclear; but it is clear that Mennonites and other pacifist groups in the state had made the same kind of supplications that their brothers in Ohio, Indiana and Pennsylvania had made: they should be allowed to avoid the draft by paying money to the government.

During World War I Mennonites were initially bewildered by the uncertainty surrounding the new draft legislation since it did not clearly provide for the kind of military exemption they desired. The law did provide an exemption for any draftee who was a member of a religious group that restricted the member from participating in any form of war and who held personal convictions against participating in war. But it went on to say that the draftee would have to fulfill his obligation by participating in noncombatant service as defined by the president. Mennonite leaders went to Washington to find out what the noncombatant status entailed. Government decision-makers listened to their concerns, but they did not clarify the provision until nearly a year after the conscription law had been enacted. “Noncombatant” status essentially meant an assignment to the Quartermaster Corps, the Medical Corps or the Engineer Corps, all organizations that were administered by the military. Although noncombatant status meant that a soldier did not have to actually carry or use a gun, Mennonites did not regard this outcome as good news. On the other hand, Secretary Baker had persuaded Congress to also enact the Farm Furlough Bill which authorized the administration to expand noncombatant service to include farm work. The Farm Furlough Program was a concession that the government was willing to give to those conscientious objectors who genuinely held convictions against participating in any war.[34] Admission to the program required eligible draftees to go before a civilian Board of Inquiry and pass an interview. In the end, however, it was all that Mennonites would be able to get from the government despite various other initiatives. According to historian James Juhnke, in November 1917 a group of Mennonite leaders in Lancaster Conference called upon Congressman W.W. Griest, proposing to lease or buy a substantial amount of land that they would convey to the government. The land would be farmed by Mennonite conscientious objectors to produce food that the government could use as it saw fit.[35] The following spring Mennonites in Kansas indicated that they were prepared to treat wounded soldiers in medical facilities they would create. Mennonites also requested that the government consider allowing draftees to work as teachers and agronomists on Indian reservations in Arizona. Apparently the Wilson administration did not reject these suggestions; and had the war continued, it might have been inclined to give them serious consideration.[36]

Those Mennonite draftees who did not enter the Farm Furlough Program and found it objectionable to perform service with programs administered by the War Department were subjected to courts martial and imprisoned. Many within that group were harassed, beaten and otherwise terrorized. At least two Hutterites died from such mistreatment.[37] Other potential draftees, however, seem to have avoided induction altogether in part because of contacts initiated by their church leaders with local officials. Apparently none of the 640 members of the Weaverland congregation near Lancaster, Pennsylvania, was ever drafted since draft boards in the area issued farm exemptions to some 90 to 95 percent of the draftees. In the Franconia Conference, only 21 of the 3,700 members were drafted. By comparison, some 33 of the 743 members of Alexanderwohl congregation near Newton, Kansas, were drafted, as were 200 of the nearly 1,400 members in the General Conference’s Western District.[38] Historian James Juhnke notes that the Mennonites in the east had “an exceptionally satisfactory and functional accommodation with their sociopolitical environment.”[39]

In the short run, Mennonites’ efforts to persuade Washington to adopt a more liberal policy toward conscientious objection might reasonably be described as a failure. However, it was only a momentary setback. Mennonite leaders learned a great deal from the experience. At the conclusion of the war, as imprisoned Mennonite draftees received commuted sentences or pardons, Mennonite leaders were keenly aware that the next war would likely lead to a repetition of the church’s ordeal unless they took active steps to avoid it. Wilson’s administration, on the other hand, believed that it had bent over backwards to accommodate Mennonites and other pacifists, especially given the public’s negative reaction to its “lenient” policy toward C.O.’s. In addition to establishing options within the military service for conscientious objectors and the Farm Furlough Program, War Secretary Baker also agreed to provide C.O.’s with the chance to serve in “reconstruction” hospitals that were to be set up to treat wounded soldiers who would not be returning to the battlefield.

None of these actions, however, had fully satisfied the C.O.’s and their church leaders. The reason was simple: noncombatants were still required to serve as military personnel, wear military uniforms and be subject to the direct command of military officers. Mennonites wanted to have noncombatants under civilian control.

Thus, between 1919 and 1941 leaders of various Mennonite groups, in concert with leaders from the Quakers and the Church of the Brethren, worked out a strategy to persuade the government to adopt a more liberal approach. Toward that end they organized peace committees, published and disseminated peace literature, and held peace conferences. These efforts culminated, on September 30, 1939, in the three denominations adopting a “plan of action” in anticipation of the imminent outbreak of war. On January 10, 1940, peace church leaders met with President Roosevelt and presented “… concrete proposals for alternative service in case of universal military training and service.”[40] In contrast to 1917, the draft legislation that followed was more favorably disposed toward noncombatant service. According to Guy F. Hershberger, as a result of the churches’ lobbying activity, “… the provisions for conscientious objectors in the Selective Training and Service Act of 1940 was more generous and satisfactory than that of the draft law of 1917.”[41]

Crucial to the legislation was the administration of the program for conscientious objectors. Gone were the military camps. They were replaced by the Civilian Public Service camps, funded and administered directly by the churches through the National Service Board for Religious Objectors (N.S.B.R.O.), an agency responsible to Selective Service. Thus began a cooperative effort between the government and the “peace churches” that lasted until the draft was ended in the 1980s. In a real sense, the passage of the 1940 legislation with the provisions for religious conscientious objectors and the creation of alternative forms of institutional and administrative structures marked the end of the draft problem for the peace churches. Thanks to the change in the draft law, the experience of C.O.’s who were drafted in World War II was dramatically different from that of their counterparts in World War I. World War II draftees were placed in Civilian Public Service camps. From that perspective, peace church advocates were successful in their goals; indeed, given the nature of the policy for which they contended, the outcome was extraordinary.

What accounts for the success of the peace churches’ lobbying efforts? Theodore Lowi’s concept of “policy types” helps us understand the challenge the peace churches faced as they sought relief from the government. According to Lowi, the universe of public policies in the United States can be divided into four distinct “arenas of power,” each with its own unique dynamics, processes and impact on society. One is the arena of regulatory policy, which involves “direct government control of conduct” of the private citizen.[42] Such policies-including laws against air pollution or underage drinking, or legislation regarding the draft-abound nowadays. Policies of this type, according to Lowi, are notable for the amount of “politics,” or conflict among contending interest groups, that they generate as policy-makers attempt to write legislation. On the one hand, the perceived necessity of a rule generates support for government action. On the other hand, groups who perceive that a proposed rule will impact their members negatively act to minimize such impact. The ensuing policy often consists of the residual parts of the original proposal that remain after other elements have been eaten away by the fierce interaction of interests groups. Under such circumstances congressional decision-makers play an accommodating and conciliating role by ratifying something that is more or less acceptable to all sides.

Yet this was not what happened in the case of Mennonite interventions regarding the draft legislation of 1940. In fact, according to firsthand observers, the political environment in which this policy was formulated and implemented was abnormally quiet and tranquil. The question is why.

Critics of Lowi’s policy analysis have long noted his tendency to oversimplify, especially in his efforts to predict outcomes in the arena of regulatory policy.[43] Thus, it may be that Lowi’s conception of regulatory policy needs to be broadened. Or, it is possible that the sources detailing how exemption from military service for C.O.’s became law in 1940 are simply too sparse to elucidate the actual nature of the legislative process. At any rate, one would expect that a policy exempting able-bodied men from military service would provoke significant levels of opposition. After all, it had happened before. During the summer of 1863, at the height of the Civil War, anti-draft riots broke out in New York City as whites claimed that black people were receiving better economic treatment than they were. Similarly, in response to criticism, the government modified the very first draft law of 1863 by eliminating the provision allowing prospective draftees to hire substitutes. It is clear that much of the public took great offense at the idea of conscientious objection in 1917. Whatever the explanation for the peace churches’ ultimate success in achieving acceptable exceptions for C.O.’s in 1940, it was not because of their political strength. Indeed, the groups represented by N.S.B.R.O. were, if anything, notable for their relative powerlessness, both politically and economically.

One possible explanation for the apparent ease with which the 1940 legislation passed is that military leaders had learned a lesson from their experience with C.O.’s in World War I: administering a program for conscientious objectors within the military structure was more trouble than it was worth. Consequently, military leaders themselves may have agreed with leaders of the peace churches that placing the program for C.O.’s outside the regular military structure was a good idea. Furthermore, the number of conscientious objectors was relatively small and posed no threat to the government’s ability to build a fighting force. So it could afford to be conciliatory toward the objectors. Finally, the government undoubtedly took the First Amendment’s free exercise clause very seriously and felt obliged to give claimants of C.O. status the opportunity to show that their professions were genuine.

Even so, it is not irrelevant to ask what the peace churches would have done had the government been unrelenting in asserting that every able-bodied person serve in defense of the nation. In such a case, the alternatives, aside from conforming to the government’s wishes, would likely have been to seek residence elsewhere, or to resist and accept punishment. Yet another alternative, as previously suggested, would have been to challenge the government in court.[44]

It is precisely that option that has served a crucial role for other minority groups who have sought refuge from what they regarded as unreasonable demands of the majority, and the U.S. Supreme Court had given them good reason for doing so. In 1938, Justice Harlan F. Stone suggested in United States v. Carolene Products Co. that laws that directed prejudice against discrete and insular minorities may require the courts to examine them more closely.[45] Happily for Mennonites and other peace churches, strategies of bargaining and lobbying had proved sufficient. The provisions of the 1940 draft law were clear proof that Mennonites were not so insular and discrete a minority that they needed the level of protection to which Justice Stone referred.

In arguing against compulsory military service before government officials, Mennonites emphasized the principle of freedom of conscience and their willingness to suffer criminal prosecution rather than serve in any program administered by the military. In these encounters with government officials, it appears that Mennonites couched their arguments almost exclusively in the language of Christian witness and supplication rather than that of constitutionalism. Indeed, studies of the conflict between Mennonites and the U.S. government over the draft between 1917 and 1940 are notable for the absence of any references to the U.S. Constitution. One can only conclude that Mennonite leaders and draftees at the time did not view the First Amendment as being important to their argument. They may have appreciated the American nation, but the legal and constitutional framework on which it rested was of little direct concern to them.

Logically, this is ironic because ultimately their appeal for relief from military obligations-the very religious freedoms the C.O.’s sought for themselves-was inseparable from the free exercise clause enshrined in the First Amendment of the U.S. Constitution. Put another way, without the First Amendment the peace churches’ struggle to maintain a distinctive identity through exemption from military service on the basis of their religious convictions would have been legally far less tenable. Indeed, in a political order where the legitimacy of government action is based on a written constitution, the notion of freedom of conscience is a fragile reed apart from its guarantee within that constitution.

This apparent lack of interest in the First Amendment is also paradoxical. When Harold S. Bender presented his famous “Anabaptist Vision” speech to the American Society of Church Historians in December 1943, he reminded his audience that the sixteenth-century Anabaptists were the progenitors of “the great principles of freedom of conscience, separation of church and state, and voluntarism in religion so basic in American Protestantism, and so essential to democracy. . . .”[46] Bender was correct. Long before the Pilgrims and Puritans came to North America, ostensibly in the name of religious freedom, and long before Roger Williams made his famous stand in the name of religious toleration, the Anabaptists had labored to convince church and state officials that “‘one cannot and should not use force to compel anyone to accept the faith.'”[47] Yet the constitutional provision for which their forebears had so valiantly contended drew scant attention from Mennonites in America who were facing the repercussions of refusing to engage in warfare on behalf of the government.

Perhaps part of the Mennonite failure to appeal to the First Amendment simply reflected their lack of education. Although Mennonites had assimilated substantially into the American culture by the time the first war began, they were still largely a rural people with a leadership unacquainted with and unskilled in the art of constitutional discourse. The same was probably true of Mennonites in the interwar period even though education among church leaders and members had increased. It is highly unlikely, for example, that the conferences that Mennonites held, established and produced on behalf of the peace witness between 1920 and 1940 included any serious discussion on the free exercise clause. Yet this explanation alone does not suffice, especially in light of the fact that highly educated Mennonites in the opening decade of the twenty-first century continue to demonstrate a similar reluctance, often expressed as disinterest, to regard the First Amendment as a resource for waging peace.

Certainly part of the answer to the question can be found in the church’s traditional understanding of humility.[48] As a distinctive Mennonite religious and cultural concept, humility discouraged a reliance on explicit forms of countervailing power. An insistence on one’s legal rights suggested self-sufficiency and independence of spirit, an attitude that relied more on the methods of the world than on God’s strength. Against such values, Mennonite humility upheld the importance of Christian suffering and obedience, respect and integrity. The leaders who represented the Mennonite churches before the government of the United States during the conflict over conscientious objection to participation in the military were men who had been influenced deeply by such values. From that perspective it was far more preferable for Mennonites to explain to government leaders why their religious faith prevented them from taking up arms than to resort to constitutional arguments and legal principles.

Regardless of the rationale for their use, strategies of witness and supplication have served Mennonites well in their experience with the problem of obligatory military service. Given the degree to which Mennonites have assimilated into U.S. society-it is, after all, a society that is hard not to assimilate into if you are white and of economic means-it is highly unlikely that any issue other than conscription would prompt Mennonites to develop an interest in the First Amendment; and even this is a highly doubtful prospect, unless some future Congress would implement a draft law modeled after the 1917 legislation rather than that of 1940. Despite being champions of religious freedom, European-American Mennonites would seem to have no special interest in the First Amendment or any other provision of the U.S. Constitution, notwithstanding the fact that they are a religious minority.

Between 1788 and 1865, African-Americans quarreled and debated over whether the constitution that established the national identity was a potential refuge or a perpetual prison since it legitimized and maintained slavery. The “realists” argued that the document was a fundamental obstacle to liberation; the “idealists” believed that nothing was wrong with the document that a proper interpretation could not cure. Chief Justice Taney’s construction of the instrument in Dred Scott v. Sandford held with those who saw it as a prison; and even after the surrender at Appomattox in April 1865, it appeared as if history’s verdict would be the same.

Then, in December 1865, the idealist version of the U.S. Constitution began to appear; in July 1868, it became clearer; and in March 1870, that vision came into full view: the U.S. Constitution was unquestionably a refuge for African-Americans. All three of those critical moments in African-American history were essentially nonevents for Mennonites. The Civil War amendments marked the real beginning of the African-American people as a matter of law in the United States. Before that the civil rights and liberties of free black people, to the extent that they had any, were contingent upon state law; and it is safe to say that in no state of the Union were they legally equal with whites.[49] If a black citizen of Massachusetts had traveled to South Carolina she would have been restricted in her movements just as were free blacks living in South Carolina. Any rights granted to African-Americans in one state were still contingent upon the operation of the laws of other states and those of the federal government as the case of Prigg v. Pennsylvania illustrates.[50]

Margaret Morgan, the daughter of Maryland slaves, was allowed to live as a free person since she married a free black man at the acquiescence of her owner and moved to Pennsylvania where she had children. Five years later Morgan’s owner died, leaving his property to his niece. The niece hired Edward Prigg to go to Pennsylvania to retrieve Morgan and all her children, since under Maryland law a black person’s status was determined by the status of the mother. In violation of Pennsylvania law, Prigg seized Morgan and took her and the children back to Maryland. When Pennsylvania convicted him for the crime of kidnapping, the U.S. Supreme Court reversed the conviction, holding that the Fugitive Slave Act of 1793 and the fugitive slave clause of the U.S. Constitution prohibited Pennsylvania from enforcing its law against kidnapping in the case of a fugitive slave.

As outlined above, constitutionalism-in the form of the Thirteenth, Fourteenth and Fifteenth Amendments-has played a major role in facilitating our assimilation into American society. No informed African-American can be indifferent to its importance. That is why I cannot view the Constitution and the courts that articulate its meaning with the level of indifference that European-American Mennonites have viewed, and continue to view it. For African-Americans, “going to law” was essential to our survival and, to some extent, it continues to be so. Becoming Mennonite cannot change that fact for an African-American. Somehow the two traditions, which in so many ways are antithetical, must be reconciled.

Clearly, for me at least, there is much that African-Americans can learn from traditional Mennonite faith and practice. Much of the suffering that troubles the African-American community has been self-inflicted. Some of the illiteracy, gun violence, drug addiction and imprisonment among African-Americans can be attributed to systemic causes, but the vast majority of these pathologies nowadays are more likely the result of deliberate decision-making by African-Americans ourselves. Shelby Steele made this point a number of years ago in his much-criticized book, The Content of our Character.[51] There Steele argued, correctly I believe, that at the moment when African-Americans are more free than ever, we are refusing to take advantage of opportunities that are available to us; even worse, part of our failure to achieve has been the result of deliberate choices that reinforced our suffering. Some of that self-destructive behavior arguably originates within the cultural practices that African-Americans have developed in the process of self-definition. Take, for example, the observations that Ron Suskind has documented in his book, Hope in the Unseen.[52] Suskind tells the true story of a lone African-American high school student, Cedric Jennings, as he struggles to liberate himself from the Washington, D.C., ghetto in which he lives. Jennings is despised by his African-American schoolmates because he is at the head of the academic honors list. The real heroes among the school population are gang members who are feared for their capacity to perpetrate violence and admired for their expensive clothes. Jennings eventually makes it out of these circumstances, but not without deliberately segregating himself from practically all of his schoolmates, and, of course, receiving some battle scars for doing so.

In its most admirable version, Mennonite theology teaches us that to live in the shadow of the Almighty is to live for others, including the foreigner and alien. It refuses to allow itself to be constrained by insularity and the tunnel vision tribalism that is so prevalent in our time. It is self-disciplined, but sufficiently conscious of its own moral limitations to avoid self-righteousness. It inculcates a sense of genuine self-deprecation, because it measures itself in light of its model, Jesus. It believes that the true test of faith in Christ is the quality of one’s actions rather than words. It prizes self-criticism, but knows the difference between that and self-destruction. Its altruism is driven by a deep sense of Jesus’ love and forgiveness. It forgives because it has been forgiven. It does not shy away from being different if it is for the sake of Christ. It has the capacity to change without losing its sense of direction. We African-Americans can learn much from this admirable version of the Anabaptist-Mennonite vision. Many of us, having been liberated from the chains and shackles imposed on us by others, now have to meet the challenge to liberate ourselves from ourselves, perhaps an even more daunting challenge. We would do well to learn from the Mennonite story.

On the other hand, the African-America experience is filled with unmerited suffering. Here, there is much in our tradition that Mennonites can learn from. For most European-American Mennonites, the constitutional order of the U.S. is an ideal polity, virtually tailor-made to fit their convictions and practices. Religious freedom and toleration are among its cherished values. The prerogatives of the state are comparatively limited, leaving wide amplitude for private self-expression, organization and action. This experience has had a seductive influence on Mennonites, creating an enormous divide between the sixteenth and the twenty-first centuries. Mennonite memories of its own tradition of unmerited suffering have become, understandably, quite attenuated. A deeper awareness of the African-American experience in the United States can remind European-American Mennonites of the seamy side of America’s story; and identification with African-American people who suffer wrongfully in our own time can possibly rekindle that sense of vulnerability and alienation among Mennonites today that once permeated so much of the Anabaptists’ way of life. This was part of the message that Vincent Harding tried to communicate to the Mennonite churches over a generation ago when he called on them to identify with the African-American poor.

The African-American experience can also inspire. By some quirk of history, we who have been, and in many ways still are, the least of Americans-the most brutalized, despised and repudiated-have nevertheless managed to retain enough hope to enable us not only survive, but also to create a culture, an identity and institutions. When, for example, U.S. Supreme Court Chief Justice Roger B. Taney claimed in Dred Scott that the framers of the U.S. Constitution never meant for it to include black people, Frederick Douglass and millions of other black people must surely have viewed that ruling as a crushing blow to their hopes for freedom. Yet, they never completely succumbed to despair. Instead, they continued to hope in the unseen and believe that God would one day set them free, as they announced to those who had ears to hear in spiritual songs such as “Wade in the Water” and “Go Down Moses.” African-Americans really did believe that God would trouble the waters on their behalf and that He would compel Pharaoh to let His people go. For many African-Americans the experience of oppression became endurable because they possessed a faith that enabled them to hope. Their capacity to maintain such faith during what one observer called their “all night forever,” can and does inspire holy people everywhere, including Mennonites, who are blessed with eyes to see and ears to hear.

The African-American experience-and, no doubt, that of other oppressed groups as well-can teach Mennonites that constitutional law is not as irrelevant as their experience would lead them to believe. Someone once noted that the U.S. Bill of Rights is more important for minorities than it is for majorities. Indeed, most of the civil rights and liberties cases that find their way to the U.S. Supreme Court are not brought by people who tend to represent the values and outlook of mainstream America. They are brought by those groups and individuals who find themselves at odds with the majority’s view of things. It is not an exaggeration to say that one test of how well groups have assimilated into U.S. society is how frequently they have come before the courts seeking relief from the pressures of the majority’s rules and opinions as expressed by the government. They are the Seventh Day Adventists, whom the government requires to work on Saturday in order to be eligible for unemployment when they lose their job through no fault of their own. They are Jehovah’s Witnesses, who are forced against their will to salute the national flag. They are African-Americans, who are restricted in their freedom or profiled by the police because of the color of their skin.

African-Americans resorted to constitutionalism and the courts because the government denied them their constitutional freedom to assimilate. Does the fact that Mennonites have not used the courts to resist government efforts to apply rules and regulations suggest that remaining distinct as a people is no longer a goal of Mennonites? One possible answer might be that Mennonites have failed to go to court because they have been taught not to do so. That answer seems less convincing if one considers the case of a group close to Mennonites, the Amish-cousins of Mennonites who have far more scruples than Mennonites about “going to law.”

Sometime in the mid-1960s, the state of Wisconsin charged a group of Amish parents with violating the state’s compulsory school attendance laws because they failed to send their children, ages 14 to 16, to school as the law required. The Amish contended that they were blameless on account of their religious teaching, which mandated that children not be placed in worldly places such as schools where they could be enticed away from true faith. If they abided by the statute, in time the Amish church itself could be destroyed. Their protestation of innocence meant that the state had to either ignore their defiance of the law or try them in court. State officials elected to try them. The situation presented the Amish with a quandary. How should they respond? Was it right to have a legal defense? If so, to whom should they go for assistance? In the end, they received assistance from an unanticipated quarter. Civil libertarians and proponents of religious liberty, some of whom knew next to nothing about the Amish, came to their cause. They established the National Committee for Amish Religious Freedom (N.C.A.R.F.), an organization that obtained counsel for the Amish and paid for their defense and litigation costs. After the trial court convicted them, the Amish appealed to the Wisconsin Supreme Court, which overruled the trial court’s verdict, whereupon the Wisconsin attorney general appealed the case to the U.S. Supreme Court. In 1972, in Yoder v. Wisconsin, the court ruled in favor of the Amish.

Despite the favorable outcome for the Amish, some Mennonite scholars who specialized in Amish studies found fault with the way the N.C.A.R.F. assisted the Amish, claiming that the organization had used the Amish to accomplish its own objectives. The criticism was notable because it begged an important question. If the Amish, who knew little or nothing about the legal process, had not received help from the N.C.A.R.F., where would that help have come from? One obvious source of assistance would have been their Anabaptist cousins, the Mennonites. Unlike the N.C.A.R.F., Mennonites understood the Amish worldview and had many ties to the Amish community. Mennonites had legal expertise, or at least knew how to obtain it. If anyone was in a position to assist the Amish during their ordeal, surely it was the Mennonites. Or was it? In actual fact, the Mennonite pattern of resolving conflict between themselves and government almost exclusively through bargaining and supplication left that community virtually incapable of thinking in terms of constitutional law and the courts as an alternative way of dealing with such conflict. Moreover, apart from the draft, Mennonites had virtually no experience of conflict with government because, for the most part, they had assimilated into society. Consequently, few, if any, among them was capable of conceptualizing the rights of religious minorities from a constitutional perspective. They could sympathize with the Amish’s difficulty, but they were not prepared to help organize and coordinate a defense of Amish practices.

Yoder v. Wisconsin was not the only time the Amish have found themselves “going to law” at the highest level. Contrary to the experience of their Mennonite cousins, the Amish have frequently been required by government to take actions that contradicted their religious principles. In a 1982 decision (United States v. Lee), the court upheld the government’s requirement that an Amish employer pay Social Security taxes for his employees even though that requirement interfered with the Amish litigant’s exercise of his religion.

The Yoder and Lee cases demonstrate how important constitutionalism is-even to a religious minority that despises litigation and courts-when it is faced with pressures by the government to assimilate, just as rulings such as Brown v. Board of Education demonstrate its importance to a despised racial group that is faced with an effort to prevent it from assimilating.

Constitutionalism, therefore, ought to be of considerable importance to Mennonites for several reasons. First, the church’s legacy is that of a despised religious minority. If its leaders and membership seriously intend to continue defining Mennonites as a religious minority, then the church’s institutions, especially its educational institutions, should begin thinking of the courts and the Constitution as a potential buttress against the challenges presented by the state’s inherent tendency toward aggressive intrusiveness. Second, even if Mennonites continue to have success in employing their traditional strategies in response to the draft, their more conservative cousins may not be so fortunate in light of the more numerous areas where the reach of government’s regulatory impact seems unacceptable for religious reasons. For such a small and self-effacing group, the Amish have had more than their fair share of moments before the courts; and they will likely continue to face pressure from the government. Mennonites, arguably, ought to be in a position of offering assistance to the Amish in such areas as First Amendment rights. Third, the Mennonite Church, though still dominated in the U.S. by members of European origin, is increasingly adding Hispanic, African-American and other minority group members. As members of both an ethnic and religious minority, constitutionalism will likely continue to be as important to them as it is for the Amish.

Finally, as Harold S. Bender reminded us over a generation ago, the Anabaptists were at the forefront of the movement for the separation of church and state. Their commitment to the advocacy of that principle was no less meritorious because they did so for their own self-protection. The principle today is found enshrined in many national constitutions, but nowhere is it more celebrated than in the United States. Mennonites ought to include a stronger focus on U.S. constitutionalism in their political science programs, peace study curricula and seminary courses in order to help defend the principle for which their forebears so nobly contended. Doing so will help to make them more attentive to the forces of cultural assimilation that they wish to guard against, and more sympathetic to the causes of other minority groups whose efforts to achieve legal assimilation they should want to support.

[1]. Francis Ellsworth Merrill, Society and Culture (New York: Prentice Hall, 1957), 42.
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[2]. John J. Macionis, Sociology, 2d ed. (New York: Prentice Hall, 1988), 291.
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[3]. Donald Kraybill, ed., The Amish and The State, 2d ed. (Baltimore: John Hopkins University Press, 2003).
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[4]. Darlene Clark Hine, William C. Hine and Stanley Harrold, The African-American Odyssey, 2d ed. (New York: Prentice Hall, 2003), 51-52.
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[5]. Ibid., 53.
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[6]. Donald G. Nieman, Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present (Oxford: Oxford University Press, 1991), 63.
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[7]. Richard Kluger, Simple Justice (New York: Vintage Books, 1975), 627-634.
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[8]. United States v. Cruikshank, 92 U.S. 542 (1876).
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[9]. The Civil Rights Cases, 109 U.S. 1 (1883).
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[10]. Plessy v. Ferguson, 163 U.S. 537 (1896).
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[11]. In Harrisonburg, Va., the application of the principle became so ludicrous as to be laughable. Barbershops that catered to whites had black barbers, but the barbers were only allowed to cut white men’s hair!
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[12]. Whites, as the dominant group in America, had almost always used the practice against black people.-John Hope Franklin and Alfred A. Moss, Jr., From Slavery to Freedom, 8th ed. (New York: McGraw Hill, 2000), 345.
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[13]. James R. McGovern, Anatomy of a Lynching: The Killing of Claude Neal (Baton Rouge, La.: Louisiana State University Press, 1982), 2-3.
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[14]. Nieman, Promises to Keep, 97-98.
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[15]. Strauder v. West Virginia, 100 U.S. 303 (1880).
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[16]. Franklin and Moss, From Slavery to Freedom, 450.
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[17]. Nieman, Promises to Keep, 138.
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[18]. Sweatt v. Painter, 339 U.S. 629 (1950).
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[19]. Shelley v. Kraemer, 334 U.S. 1 (1948).
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[20]. Smith v. Allwright, 321 U.S. 649 (1944).
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[21]. Morgan v. Virginia, 328 U.S. 373 (1946).
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[22]. The election of Oscar DePriest of Chicago to Congress in 1928, the first African-American to have that distinction since Reconstruction, is an illustration.-Franklin and Moss, From Slavery to Freedom, 424.
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[23]. Ibid.
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[24]. Plessy v. Ferguson, 163 U.S. 537 (1896). Taken from Gerald Gunther, Constitutional Law: Cases and Materials (Eagan, Minn.: The Foundation Press, 1975), 708.
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[25]. Although the verdict of one Mennonite historian was that their suffering was comparatively small.-James C. Juhnke, Vision, Doctrine, War: Mennonite Identity and Organization in America, 1890-1930: The Mennonite Experience in America, vol. 3 (Scottdale, Pa.: Herald Press, 1985), 218-219.
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[26]. Ibid., 239.
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[27]. Theron F. Schlabach, Peace, Faith, Nation: Mennonites and Amish in Nineteenth Century America: The Mennonite Experience in America, vol. 2 (Scottdale, Pa.: Herald Press, 1988), 22.
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[28]. Ibid., 22-23.
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[29]. Ibid., 177-179.
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[30]. Guy Franklin Hershberger, War, Peace, and Nonresistance (Scottdale, Pa.: Herald Press, 1969), 110.
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[31]. C. Henry Smith, The Story of the Mennonites, 4th ed. (Newton, Kan.: Mennonite Publication Office, 1957), 795.
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[32]. Schlabach, Peace, Faith, Nation, 180-182.
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[33]. Ibid., 191.
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[34]. Hershberger, War, Peace, and Nonresistance, 111.
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[35]. Juhnke, Vision, Doctrine, War, 228.
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[36]. Hershberger, War, Peace, and Non Resistance, 229.
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[37]. Juhnke, Vision, Doctrine, War, 238-240.
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[38]. Ibid., 237
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[39]. Ibid.
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[40]. Hershberger, War, Peace, and Nonresistance, 123.
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[41]. Ibid., 124.
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[42]. Theodore Lowi, “American Business, Public Policy, Case Studies and Political Theory,” World Politics, 16:4 (Oct. 1964), 677-715, esp. 690.
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[43]. David E. Price, Who Makes The Laws: Creativity and Power in Senate Committees (Somerset, N.J.: Shenkman Publishing Company, Inc., 1972), 297.
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[44]. Some Mennonites, of course, did become combatants during World War I; and some prospective draftees did flee to Canada to escape the draft just as they did during the war in Vietnam two generations later. Many other C.O.’s lived out their convictions and suffered. But none, as far as can be determined, challenged the government in court during World War I. Even those men who were tried and convicted never appealed their convictions.
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[45]. United States v. Carolene Products Co., U. S 144 (1938).
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[46]. Guy Franklin Hershberger, ed., The Recovery of the Anabaptist Vision: A Sixtieth Anniversary Tribute to Harold S. Bender (Scottdale, Pa.: Herald Press, 1957), 30.
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[47]. Ibid.
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[48]. Schlabach, Peace, Faith, Nation, 32.
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[49]. Nieman, Promises to Keep, chap. 2; Franklin and Moss, From Slavery to Freedom, chap. 9.
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[50]. Prigg v. Pennsylvania, 16 Peters 539 (1842).
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[51]. Shelby Steele, The Content of Our Character: A New Vision of Race in America (New York: Harper Perennial, 1990).
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[52]. Ron Suskind, A Hope in the Unseen: An American Odyssey from the Inner City to the Ivy League (New York: Broadway Books, 1998).
The Mennonite Quarterly Review
Mennonites, African-Americans and Constitutional Law
*Lee Roy Berry, Jr. is associate professor of political science at Goshen College and an attorney in Goshen, Ind.
MQR 80 (July 2006)