Amendment 44

On November 6, 1956, Arkansans voted to adopt an amendment to the state constitution that would allow Arkansas law to supersede federal law. The “interposition” amendment, as it was called, was in response to the looming integration of Arkansas schools. Similar amendments were adopted across the South after the 1954 Brown v. Board of Education of Topeka, Kansas decision that declared public school segregation unconstitutional. Although the idea of interposition gained popularity in 1954, the precedence for the argument can be traced back to the Virginia and Kentucky Resolutions put forth by James Madison and Thomas Jefferson in 1798 and 1799.

James D. “Justice Jim” Johnson, an Arkansas politician from Crossett (Ashley County), first presented the idea of an interposition amendment in Arkansas in 1955. His colleague in the Arkansas Senate, Jerry Screeton of Hazen (Prairie County), helped author the amendment and was a supporter of it. Johnson was beginning a campaign for governor against incumbent Orval Faubus and used the idea of interposition as his platform in the 1955–56 gubernatorial race. Throughout 1955, Johnson and his associates distributed petitions to have his amendment on the 1956 ballot. The ballot initiative gained traction as Johnson toured the state railing against integration and the “communist” Supreme Court. Johnson used an emotional appeal to get the citizens of Arkansas to support the proposed amendment, arguing that the federal government was out to quash Southern culture and that the Brown decision was handed down from a court of communists. The ballot initiative was filed with the required number of signatures on July 3, 1956.

The text of the amendment is as follows:

Section 1. From and after the Adoption of this Amendment, the General Assembly of the State of Arkansas shall take appropriate action and pass laws opposing in every Constitutional manner the Un-Constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court, including interposing the sovereignty of the State of Arkansas to the end of nullification of these and all deliberate, palpable, and dangerous invasions of or encroachments upon rights and powers not delegated to the United States nor prohibited to the States by the Constitution of the United States and the Amendments thereto, and those rights and powers reserved to the States and to the People thereof by any department or commission of the mission, officer, or employee of such department or commission of the Government of the United States, or of any government of any Nation or Federation of nations acting upon the apparent authority granted them by or assumed by them from the Government of the United States. Said opposition shall continue steadfast until such time as such Un-Constitutional invasions or encroachments shall have abated or shall have been rectified, or the same shall be transformed into an Amendment to the Constitution of the United States and adopted by action of three-fourths of the States as provided therein.

Section 2. The General Assembly shall enact laws to insure the administration and enforcement of the spirit and letter of this Amendment; and shall appropriate adequate fund to affect the same, including a proportionate share of such expenses as may be necessary for the maintenance of regional committees created among the States for the preservation of rights belonging to the States and the people thereof.

Section 3. The General Assembly shall enact such laws under the Police Powers reserved to the States as may be necessary to regulate health, morals, education, marriage, good order and to insure the domestic tranquility of the citizens of the State of Arkansas.

Section 4. No public official or employee of the State of Arkansas or of any political subdivision thereof shall have immunity from arrest, prosecution and trial for the violation of such penal laws as the General Assembly shall provide for the willful failure and refusal to carry out the clear mandates of this Amendment; and in addition to the penalties provided for by the General Assembly, shall automatically forfeit his or her office.

In response to public support for Johnson’s amendment, Governor Faubus signed a series of anti-communist and segregationist acts into law in 1957. These acts included the creation of oversight committees to ensure that state employees and educators were anti-communists and anti-integrationists. These acts also burnished Faubus’s legacy as a staunch segregationist. In 1959, the Arkansas Supreme Court struck down Section 3 of Amendment 44 in the case of Garrett v. Faubus. The court said that Section 3 was specifically written to codify “Jim Crow laws” and would create segregation statutes in violation of the 1954 Brown ruling. The U.S. Supreme Court ruled that the entire amendment was unconstitutional in the case Deitz v. Arkansas (1989). The Court said that the amendment was unconstitutional under the supremacy clause of the U.S. Constitution, Article VI, clauses 2 and 3. Arkansas voters agreed and repealed the amendment in 1990.

For additional information:
Blair, Diane D., and Jay Barth. Arkansas Politics and Government. 2nd ed. Lincoln: University of Nebraska Press, 2005.

Brown, Robert L. Defining Moments: Historic Decisions by Arkansas Governors from McMath through Huckabee. Fayetteville: University of Arkansas Press, 2010.

Goss, Kay Collett. The Arkansas State Constitution: A Reference Guide. Westport, CT: Greenwood Press, 1983.

Jacoway, Elizabeth. Turn Away Thy Son: Little Rock, the Crisis That Shocked the Nation. New York: Free Press, 2007.

Reed, Roy. Faubus: The Life and Times of an American Prodigal. Fayetteville: University of Arkansas Press, 1997.

Marie Williams
University of Arkansas, Fayetteville