The Law
I think the proper course is to recognize that a State legislature
can do whatever it sees fit to do unless it is restrained by some
express prohibition in the Constitution of the United States or of
the State, and that courts should be careful not to extend such
prohibitions beyond their obvious meaning by reading into them
conceptions of public policy that the particular court may happen
to entertain.
--Oliver Wendell Holmes.
I
On May 17, 1954, the Supreme Court of the United States handed down
its unanimous decision in the _School Segregation Cases_. By general
agreement, this decision is regarded as the court’s most momentous
opinion of this century; indeed, only the court’s opinion of 1856 in
the _Dred Scott_ case is thought to have had greater impact upon the
American people or upon the course of historic events. Because of
its destructive effect upon the stability of law and the permanence
of long-established institutions, the school decision, in my own
view, surpassed _Scott_ v. _Sanford_ in the area of jurisprudence
gone mad. In one stroke, the Warren court violated those precepts of
judicial restraint and constitutional interpretation which it most
frequently has insisted on in the past; it transformed itself into a
super-legislature--more, it usurped the functions of constitutional
amendment that lie with not fewer than three-fourths of the States.
Abandoning law, the court wedded sociology; discarding eighty years
of unbroken precedent, members of the court substituted their own
notions of psychology and moral fitness for the plain and palpable
meaning of the Fourteenth Amendment in terms of racially separate
public schools. And having prohibited unto the States the exercise
of a power the States had been exercising with judicial approval
since 1868, the court capped its day’s work by decreeing an end to
segregation in schools of the District of Columbia. This latter
stroke was achieved by judicial _coup de main_ that left even the
court’s best friends embarrassed; what happened, Ralph Catterall has
remarked, is that the court declared “unthinkable” that which had
been universally thought for 166 years.
This is the indictment the South brings against the Warren court
for _Brown_ v. _Board of Education_ and the subsequent judicial
progeny of that May afternoon. In one sense, it doubtless is
futile to reargue _Brown_; as the court defiantly indicated by
its unprecedented action in signing every judge’s name in 1958 to
_Cooper_ v. _Aaron_, the principles it boldly put forward in 1954 are
not to be reconsidered so long as the court’s present members may
live. But it is important, nonetheless, that the South’s protest be
understood and regularly renewed, lest it be supposed that with the
passage of time the court’s action has been condoned and forgiven.
The South’s position rests upon a foundation of law, history,
and constitutional construction as old as the Union itself. Ours
is the ancient doctrine of State powers--not of State rights,
but of State _powers_. This principle is the _élan vital_ of the
American Republic; it takes in the whole body of governmental and
philosophical principles by which American greatness has been
achieved. The doctrine embraces that delicate balance in State
and Federal relations which keeps the whole watchworks moving; it
depends for its success upon the right of the States to be wrong--to
be foolish, to be unwise, to be out of step, to do “those acts and
things which independent States may of right do,” simply because
they are States. And unless this delicate balance is preserved,
and the rightful powers of the States guarded from continued
encroachment, the whole organism of American government will be
subtly transformed, without the expressed consent of the people
governed, from the federalism that has provided its greatest strength
to an immoderate centralism that will prove its greatest weakness. In
maintaining its case, the South is no longer fighting the question
of separate schools or even a question of race relations at all;
it is contending, rather, for the preservation of an American plan
of value to all the States and all the people. What is lost to the
Southern States, in terms of political powers, is lost to all States;
and the imposition of court-ordered prohibitions in one field makes
the next imposition that much easier. By the court’s decree of 1954,
the South’s largest, most expensive, most important, most cherished
public institutions--our public schools--were thrown into potential
jeopardy and chaos. Whose most cherished institutions will be next?
II
The South’s legal position in the school controversy is essentially
a constitutional position; it cannot be fully understood without
some understanding of how the Southerner views the Constitution. He
views it through the eyes of the States. These are to him, as Oliver
Wolcott of Connecticut called them, “the pillars which uphold the
general system.”
Most readers of this essay, it may be assumed, have a good working
knowledge of the Constitution. Some will not; they may never have
read the Constitution, line by line and word by word; they know its
provisions vaguely, not explicitly, and the trail that led from
the creation of States to the formation of a Union is as remote to
them as a path through the Pleiades. Hence this hornbook review.
And if Jefferson’s Declaration of Independence seems irrelevant to
the South’s position in _Brown_ v. _Board of Education_, it is only
because too much emphasis has been put on the Declaration’s first few
lines and not enough on its last.
Perhaps in the divine plan, all men are indeed “created equal.” Here
on earth they patently are not. Jefferson’s opening hyperbole was
never meant to be taken literally. But he did mean for the closing
lines to be taken, at international law, for precisely what they
were--a declaration that the colonies once tied to Britain, were now
_free and independent States_--
and that as Free and Independent States, they have full power to
levy War, contract Alliances, establish Commerce and to do all
other Acts and Things which Independent States may of right do.
In that moving Declaration, nothing was said of the birth of a
“nation.” In truth, nothing was said of a “nation” in the Articles of
Confederation, or in the Constitution that succeeded the Articles.
The Declaration was the act of “one People,” but the political aim
in the decade that followed the Declaration of 1776 was to form a
more perfect Union--a union of separate, sovereign States, acting
jointly for some purposes, but acting individually for others.
And the political genius of the founding architects who designed
this structure is the very genius so widely disdained by the busy
planners and amateur carpenters of our own time.
What did the Declaration assert the function of government to be?
Why is it that governments are instituted among men? The answer, in
Jefferson’s phrase, is that governments are instituted among men to
_secure rights_--not to grant rights, which a free people have to
begin with, but only to secure rights. And where does government
derive its powers in this regard? It derives its just powers “from
the Consent of the Governed,” and from no other source. How is this
consent manifested? The answer lies in the whole of the republican
process, which in the United States is a process exercised entirely
through the actions of the people _in their States_.
The colonists who cast off the yoke of Great Britain did not propose
to take on a fresh yoke of their own contriving in its place. The sum
of their charges against the Crown was that George III had sought to
establish “an absolute tyranny over these States.” He had “erected a
multitude of New Offices and sent hither Swarms of Officers to harass
our People and eat out their Substance.” In the formation of a new
and independent government, the founding fathers were determined to
minimize the opportunities for new tyranny to come into power. And
toward that end, they were determined that the powers of government
should be fragmented, and partitioned off, and kept securely under
leash. They feared excessive “bigness” for the best of all reasons,
that excessive bigness ought always to be feared when the liberties
of a people are at stake. They sought to provide a check here, a
balance there, a string of unequivocal prohibitions somewhere else.
They insisted always upon a reservation to the people themselves of
powers ungranted. These were the prudent goals the greatest political
minds of our country sought to achieve.
Their first handiwork, the Articles of Confederation, is too much
denounced and too little read. “This despised government,” said
Patrick Henry, defending the Confederation, “merits, in my opinion,
the highest encomium: It carried us through a long and dangerous
war; it rendered us victorious in that bloody conflict with a
powerful nation; it has secured us a territory greater than any
European monarch possesses; and shall a government which has been
thus strong and vigorous be accused of imbecility and abandoned for
want of energy?” It is popularly supposed that when the delegates
assembled at Philadelphia in 1787, they tossed the whole of the
Articles unceremoniously aside, and set out from scratch to compose
a Constitution. They did nothing of the sort. The revisions they
made were fundamental, of course, but the principles of political
power under which the United States live today are in essence the
principles embodied in the Articles of Confederation.
Here in the Articles are to be found many of the phrases, and indeed,
many of the specific provisions, that endure in the Constitution.
The genesis of the Tenth Amendment appears as the first substantive
clause in the compact: “Each State retains its sovereignty, freedom,
and independence, and every Power, Jurisdiction and right, which is
not by this confederation expressly delegated to the United States,
in Congress assembled.”
Article III bound the States in a firm league of friendship “for
their common defense, the security of their Liberties, and their
mutual and general welfare”; the phrases were to reappear in the
preamble to the Constitution of 1787. Article IV guaranteed to
the inhabitants of each State “all privileges and immunities of
free citizens in the several States,” a guarantee carried over to
Article IV, Section 2. The extradition of fugitives from one State
to another, the rule of “full faith and credit” among the States,
the immunity of Congressmen, and the flat prohibition upon the
granting of titles of nobility all stem from the Articles. It often
is forgotten, but the States laid upon themselves in the Articles
of Confederation many of the prohibitions they were to accept a few
years later in the Constitution: No States were to enter into any
compact without the consent of Congress; no States were to keep
troops or ships of war in time of peace without the consent of
Congress “unless such State be actually invaded by enemies, or ...
the danger is so imminent as not to admit of delay,” a provision
echoed to this day, almost exactly, in Article I, Section 10. The
powers vested in the Congress under the Articles of Confederation
also have a familiar ring--to coin money, fix standards of weights
and measures, regulate trade, establish post offices, borrow money,
build and equip a navy, and appropriate funds “for defraying the
public expenses.”
But the Articles of Confederation, for all the thoughtful provisions
they provided as progenitors of the Constitution, had serious and
admitted defects as well. If there was to be something more than a
“firm league of friendship” among sovereign States, a government
had to be created capable of acting upon individuals as such. The
most devoted friend of “States’ rights” willingly concedes that
the “more perfect Union” provided for in the Constitution of 1787
created a nation, even if the Constitution described it only as
a “Union,” or as “the land.” Obviously, the supremacy clause in
Article VI was something new, not in degree, but in kind: “This
Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme law
of the land; and the judges in every State shall be bound thereby,
any thing in the Constitution or laws of any State to the contrary
notwithstanding.”
That clause alone, coupled with Article III and with John Marshall’s
effective establishment of the principle of judicial review, created
the “one out of many” that is the American Republic. Yet the
objective student of public affairs who would understand the South’s
classic and traditional position in advocacy of States’ rights
should devote some thoughtful attention to certain aspects of the
Constitution that have remained unchanged from the very beginning
of the Union, surviving civil war and the growth of nearly two
centuries--aspects that remain unchanged to this day.
At the risk of being tedious, it is necessary to examine the
Constitution as it is, and not as centralizers might wish it to be.
This is our organic law, the basis of our public institutions; the
spirit that lives and breathes in it is the American spirit, and the
great beams and foundation stones of this written compact support the
whole structure of our government. The few paragraphs that follow may
seem elementary. They are, in fact, essential to an appreciation of
what was wrong with _Brown_ v. _Board of Education_ in 1954.
The preamble itself offers the first source of misunderstanding. It
begins, of course, “We the people of the United States,” and for
175 years superficial students of the Constitution have been crying
triumphantly that the opening three words prove the existence of
some national democracy: “We, the people.” The demonstrable facts
prove no such thing. On Monday, August 6, 1787, the Philadelphia
convention received its first full draft of a Constitution. The
preamble submitted by South Carolina’s John Rutledge on that day
read as follows: “We the people of the States of New Hampshire,
Massachusetts, Rhode Island and Providence Plantations, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia, do ordain, declare
and establish the following Constitution for the Government of
Ourselves and our Posterity.” The preamble in this form was adopted
the following day without dissent, and indeed without debate. It was
not until September 10, when the weary delegates were ready to have
the final document whipped into form by a committee on style, that
the presumptuousness of the draft preamble became apparent. James
Wilson of Pennsylvania made the point that it would be “worse than
folly to rely on the concurrence of Rhode Island.” The State of New
York, he observed, “has not been represented for a long time past
in the Convention.” North Carolina’s agreement was most uncertain.
Many individuals from other States had spoken against the plan. And
though Wilson was here addressing himself to a specific proposal that
the draft Constitution be submitted first to the Congress, rather
than directly to the States, his remarks made obvious good sense to
members of the committee on style. They prudently recast the preamble
to omit all mention of specific States--how could they know which
nine would bind themselves by ratification?--and the preamble emerged
as we know it. The point is that there was not the slightest doubt in
the minds of the delegates at Philadelphia, or in the minds of the
State conventions thereafter, that “We the people” meant, as Madison
said, “We the people of the States as thirteen sovereignties.”
The first eight words of Article I are important: “All legislative
powers herein granted shall be vested....” We are dealing, at the
outset, as the careful choice of a noun makes clear, with _powers_,
and with a specific kind of power: _legislative_ power. These powers
are “granted _herein_,” which is to say, granted by the ratifying
States in the Constitution itself, and in no other place; and these
powers are to be “vested” (a most judicious verb) in the Congress.
In Section 2 of Article I, the first of more than ninety references
to “the States” appears: The House of Representatives is to be
composed of members chosen every second year “by the people of
the several States.” No congressional district ever may extend
across a State line, for “the electors in each State shall have the
qualifications requisite for electors of the most numerous branch
of the State legislature.” Moreover, every Representative must be
“an inhabitant of that State in which he shall be chosen.” Then
follows the enumeration of the States to whom the Constitution would
be submitted, if they wished to enter the Union: The State of New
Hampshire shall be entitled to choose three members of the House,
Massachusetts eight, and so forth.