put upon themselves by the Constitution. No State may (1) enter into
a treaty or confederation; (2) grant letters of marque and reprisal;
(3) coin money; (4) emit bills of credit; (5) make anything but gold
and silver coin legal tender; (6) pass any bill of attainder or (7)
ex post facto law or (8) law impairing the obligation of contracts;
(9) grant any title of nobility; or, without the consent of the
Congress, (10) lay any duty on imports or exports; (11) lay any duty
of tonnage; (12) keep troops or ships of war in time of peace; (13)
enter into any compact with another State, or (14) engage in war
unless actually invaded or in such imminent danger as will not admit
of delay.
_Article II._ The provisions of the Constitution dealing with the
election and office of the President are significant in this brief
review because of the indispensable function that is assigned to the
States as States, even in the choice of a President. As a matter of
law, the popular vote that is cast for presidential candidates in
the Republic as a whole is meaningless. What counts, plainly, is
the vote within each State, for this choice by the people within
their State by custom governs the action of presidential electors
who are appointed in each State “in such manner as the legislature
thereof may direct.” And should the presidential electors fail to
give any one candidate a majority of their votes, the election goes
immediately to the House of Representatives where the votes shall be
taken “by States, the representation from each State having one vote.”
The federal nature of our Union also is made apparent in the
provisions of Section 2, which leave to the States the command of
their own militia except “when called into the actual service of the
United States,” and vest in the Senate a powerful control upon the
executive power of the President. It is only with the advice and
consent of the Senate that the President may make treaties, appoint
ambassadors, and name judges of the Supreme Court and other officers.
And the consent of Senators, to repeat, in a very real sense is the
consent of the States as such.
_Article III._ The Constitution vests the judicial power of the
United States (with such exceptions, and under such regulations as
the Congress shall make) in one Supreme Court and in the inferior
tribunals established by law. The chief point the advocate of
States’ rights might emphasize here is that the high court’s power is
entirely _judicial_ in nature; its jurisdiction extends to cases in
law and equity arising under the Constitution, under Federal law, and
under treaties made under the authority of the United States, and to
“controversies” in which a State as such, or diversity of citizenship
on the part of litigants, may play a part.
Section 2 makes clear that the States must be considered separate
entities in the trial of crimes, just as they are considered separate
entities in the election of Congressmen: Crimes are to be tried “in
the State where the said crimes shall have been committed.”
_Article IV._ All four sections of the Fourth Article are concerned
with the States, their citizens, their obligations to other States,
and their rights as members of the Federal Union. Here is the
provision that “full faith and credit shall be given in each State
to the public acts, records and judicial proceedings of every other
State.” The second section explicitly acknowledges State citizenship
as distinct from United States citizenship. It says that “the
citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.” This section also
provides for the extradition of persons charged with crime, and prior
to the Thirteenth Amendment, for the compulsory return of fugitive
slaves. Section 3 protects the States from having new States carved
out of their territory. Section 4 guarantees “to every State in this
Union a republican form of government.”
_Article V._ The brief provision dealing with amendment of the
Constitution is of paramount importance in any understanding of
the South’s protest against the school decision. John Taylor of
Caroline once defined sovereignty as “the will to enact, the power to
execute.” John Marshall spoke in the _Cohens_ case of the “supreme
and irresistible power to make and unmake.” Article V defines and
locates this supreme power--not in “the whole body of the people,” as
Marshall carelessly remarked, but in “three-fourths of the several
States.”
The scheme for amendment of the Constitution goes to the very
essence of what makes the American Union great and unique among the
powers of the earth: We do not accept the supremacy of “majority
rule.” If there is one ancient parliamentary principle to which the
Constitution does _not_ subscribe, it is the principle of majority
rule. In every major question touched upon in the Constitution--for
the impeachment of officers, the overriding of a veto, the
ratification of a treaty, the proposing and adopting of amendments to
the Constitution--in all of these, mere majorities are not enough.
Some margin of more than a majority is required. And when it comes
to changing the Constitution itself, the explicit provision is that
no change can be made without the expressed and tacit approval of
at least three-fourths _of the States_. The laws, customs, desires,
preferences of a minority of the States are not to be blindly
overthrown by any 51 per cent of the people; and until the _Brown_
case came along, it was not imagined in the South that Article V
could be suspended, and the Constitution effectively amended, by the
will of nine judges.
The substance of Article VI has been quoted earlier, and the
concluding Article VII is notable chiefly for the light it sheds upon
the relationship of the States to one another within the Federal
Union: “The ratification of the conventions of nine States,” it says,
“shall be sufficient for the establishment of this Constitution
_between the States so ratifying the same_.” The language plainly
justifies what sometimes is referred to disparagingly as “the compact
theory,” as if a concept of the Constitution as a compact “between
the States so ratifying the same” were no more than a gauzy illusion
of Calhounian metaphysicians. The Constitution is in fact, as even
Mr. Justice Douglas has described it, a “compact between sovereigns”
(_New York_ v. _United States_, 362 U. S. 572). The United States
of America, as a corporate being, came into existence with New
Hampshire’s ratification as the ninth State on June 21, 1788. If
Virginia, New York, North Carolina, and Rhode Island thereafter had
failed to ratify (the vote was 89 to 79 in Virginia, 30 to 27 in New
York, and 34 to 32 nearly two full years later in Rhode Island), they
might be to this day sovereign and independent States, small nations,
republics in their own regard. It was by their own voluntary actions
that the States accepted the Constitution and agreed to be bound by
it. As partners in a joint venture they entered into compact; and
the Constitution was, and is, the written instrument by which their
mutual understanding is set down, not to be altered without the
consent of three-fourths of them.
The ratifying conventions, especially those in the key States
of Virginia and New York, provide abundant documentation of the
prophetic vision with which the Founding Fathers sought to protect
their infant Republic from the predictable excesses of “big
government.” Our nation was created in an abiding sense of distrust;
most of _The Federalist_ papers are devoted toward soothing and
allaying the fears of those who apprehended that one day the central
government would get out of hand. “Suspicion is a virtue,” cried
Patrick Henry in the Virginia convention, “as long as its object
is the preservation of the public good, and as long as it stays
within proper bounds.... Guard with jealous attention the public
liberty! Suspect everyone who approaches that jewel!... I shall
be told I am continually afraid; but, Sir, I have strong cause of
apprehension. In some parts of the plan before you, the great rights
of freemen are endangered, in other parts absolutely taken away....
But we are told that we need not fear, because those in power, being
our representatives, will not abuse the powers we put in their
hands. I am not well versed in history, but I will submit to your
recollection, whether liberty has been destroyed most often by the
licentiousness of the people, or by the tyranny of rulers?”
To put at rest these widespread fears of excessive centralism, the
ratifying States demanded a series of explicit amendments to the
Constitution, intended to place further express prohibitions upon the
Congress. These amendments became, of course, the Bill of Rights;
and important as the first eight amendments are, the forgotten
Ninth and Tenth speak with telling eloquence of the nature of our
political institutions. The Ninth asserts that “the enumeration in
the Constitution of certain rights shall not be construed to deny
or disparage others retained by the people.” And the Tenth, once
insisted upon by New York as positively as by Virginia, declares in
words too clear possibly to be misunderstood that “the powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people.”
There in the Tenth Amendment is the key that should unlock
all mysteries of construction, wherever the State and Federal
relationship is at issue. It does not treat of “rights.” Rights
belong to people, and are retained by them in the Ninth. The Tenth
deals with powers, and its careful wording spells out the essence
of our Union. The Congress has no powers whatever, save those the
States have delegated to it “by the Constitution.” If authority for
some congressional act cannot be found in the Constitution, the
authority does not exist, for the Congress has no implied or inherent
powers; its powers begin and end with the powers enumerated in the
written instrument itself--including, to be sure, the power to adopt
“necessary and proper” laws to put the powers to work. All other
powers, not prohibited to the States _by the Constitution_, are
expressly reserved to the States respectively, or to the people.
There is great meaning here for the issue that prompts this brief.
What the South has said, repeatedly, earnestly, unavailingly, is
that the power to operate public schools plainly is a power reserved
to the States respectively _by the Constitution_. The power is not
delegated to the United States; it is not prohibited to the States
by the Constitution; therefore it remains with them. The power to
operate public schools necessarily embraces the power to decide what
kind of public schools will be operated; and so long as the States do
not violate any prohibition laid upon them by the Constitution, they
are free to operate whatever schools they please. Their contention
is that nothing in the original Constitution of 1788, nothing in the
pre-War amendments, nothing in the Reconstruction amendments, and
nothing added to the Constitution in this century was intended to
prohibit to the States the power to operate racially separate public
schools. On the contrary, the South contends that this power plainly
was recognized, acknowledged, and judicially sanctioned in States
North and South for eighty years after the Fourteenth Amendment
became operative; and we deny that a construction so long placed
upon the Constitution, in an area of public affairs so vitally and
intimately affecting the daily lives of so many millions of persons,
validly may be wiped out by a stroke of judicial pens.
III
The four cases that were to coalesce as _Brown_ v. _Board of
Education_ had their beginnings in four widely separated proceedings.
In the first of the suits, Harry Briggs, Jr., and forty-five other
Negro children of Clarendon County, S. C., brought an action on
December 22, 1950, against R. W. Elliott and other members of the
county’s School District 22. The following March, in Kansas, Oliver
Brown and other colored children filed suit against Topeka’s board of
education. In May 1951, Dorothy E. Davis and other Negro plaintiffs
in Prince Edward County, Va., launched their proceeding against
county officials. Nine months later, in the early spring of 1952,
Ethel Louise Belton and others sued for nondiscriminatory admission
to the public schools of Hockessin and Wilmington, Del.
Each of the suits was carefully coordinated with the others by the
National Association for the Advancement of Colored People, and each
had the same object--overthrow of the “separate but equal” rule
that had governed the operation of racially separate schools since
Reconstruction days. Counsel’s plan was to show, first, that school
facilities for white and Negro children were not equal as a matter
of fact, but this was not so important; beyond this--and it was by
far the more significant aim--the object was to prove, as Thurgood
Marshall said in South Carolina, that “the segregation of pupils in
and of itself is a form of inequality,” and hence a violation of the
Fourteenth Amendment’s requirement of equal protection of the law.
The Clarendon County case, which came on for trial before a
three-judge Federal court in Charleston May 28-29, 1951, provided
the pattern. The pleadings were drafted by Marshall himself and by
Robert L. Carter of New York, the two top lawyers for the National
Association for the Advancement of Colored People. (In 1961, Marshall
became a Federal circuit judge.)
The facts were not in great dispute. At that time, there were in
Clarendon County as a whole 6500 Negro children and 2375 white
children. District 22 had 684 Negro elementary pupils and 150 Negro
high school pupils, plus 102 white elementary pupils and 34 white
high school pupils. The Negro pupils of District 22 went to three
schoolhouses: Scott Branch (a combined elementary and high school),
Liberty Hill, and Rambay. All the white pupils went to the Summerton
elementary and high school. It was shown that the facilities for
white children, though old (the Summerton high school was built in
1907), were in many respects far superior to the facilities for
the Negro children. The two-room Rambay School and the four-room
Liberty Hill School had no running water, and Rambay had no electric
power. The Negro schools had few of the educational aids provided
at Summerton; their playgrounds were inferior; toilet facilities at
the two smaller buildings were outside privies. County officials
pointed out that neither water nor sewage lines existed in the area
of the two schools; in the remote rural section served by Rambay,
no electric power was available to anyone; the library for colored
pupils at Scott Branch, they said, was superior to the library for
white pupils at Summerton; and they denied any discrimination in
transportation, janitorial services, and other amenities. As the
case went to trial, however, counsel for Clarendon County confessed
a general inequality in physical facilities, described a State-wide
plan instituted by Governor Byrnes for school improvements, and
pledged a prompt effort to achieve equality.
By far the most significant evidence in the Clarendon County case
came from a group of witnesses summoned by the plaintiffs to testify
on the psychological effects of segregation itself. Kenneth Clark,
assistant professor of psychology at the New York City College, was
a key figure in this phase of the NAACP’s assault. In the _Teachers’
College Record_ for October 1960, he revealingly describes the
fashion in which he was approached by Carter in February 1951,
on behalf of the NAACP’s Legal Defense Fund, to prepare exhibits
and test findings that would support the plaintiffs’ side in the
School Segregation Cases. Carter wanted material that would show
how “segregation inflicts psychological damage on its victims,” and
Clark collaborated with the lawyers in preparing psychological data
“to be used in whatever ways they believed most effective in the
presentation of their case.” As part of the plan, Clark himself went
to Clarendon County, and administered the “doll test” to twenty-six
Negro children; in this test, the subjects are shown two dolls
identical except for skin coloring--one doll is white, the other
brown. They then are asked which doll they like best, which doll is
“nice,” which doll is “bad,” and which doll “is like you?” From the
answers to these questions, Clark testified in the Clarendon case,
“we get some picture of the child’s concept of his own color, and we
also get an indication of the child’s anxieties and confusions about
his color and his feelings.” Not surprisingly, the twenty-six pupils
Clark tested in Clarendon County were found to have been “definitely
harmed in the development of their personalities.”
Other witnesses for the plaintiffs included Harold McNalley,
associate professor of education at Columbia Teachers College; Ellis
O. Knox, professor of education at Howard University; James L. Hupp,
professor of education and psychology at Wesleyan College of West
Virginia; David Krech, professor of social psychology at Harvard;
and Mrs. Helen Trager, a lecturer in psychology at Vassar. Their
testimony, admitted over defense objections that it was irrelevant
and immaterial, was intended to support the plaintiffs’ primary
contention that segregation, in and of itself, caused emotional
damage to the Negro child, and that segregated schools could never be
made “equal” as a matter of law.
On June 23, 1951, the Fourth Circuit’s Chief Judge John J. Parker,
joined by District Judge George Bell Timmerman, handed down an
opinion in the Clarendon County case. The third member of the
court, District Judge J. Waties Waring, strongly dissented to the
Parker-Timmerman decision. The majority decree directed county
officials to proceed at once with genuine equalization of public
school facilities, but the court refused to upset the long-standing
doctrine of “separate but equal.” The late Judge Parker was one of
the nation’s most widely admired jurists, a North Carolinian who
had then had more than twenty-five years’ experience on the bench.
His opinion (98 F. Supp. 529), though it subsequently was to be
reversed, merits respectful consideration in any study of the South’s
position.
On the key question developed by the plaintiffs--that segregation in
itself is a denial of equal protection--Parker took a calmly judicial
approach: This is a “matter of legislative policy for the several
States,” he said, “with which the Federal courts are powerless to
interfere.” He continued:
One of the great virtues of our constitutional system is that,
while the Federal government protects the fundamental rights of
the individual, it leaves to the several States the solution of
local problems. In a country with a great expanse of territory,
with peoples of widely differing customs and ideas, local self
government in local matters is essential to the peace and happiness
of the people in the several communities as well as to the strength
and unity of the country as a whole. It is universally held,
therefore, that each State shall determine for itself, subject to
the observance of the fundamental rights and liberties guaranteed
by the Federal Constitution, how it shall exercise the police
power, i.e., the power to legislate with respect to the safety,
morals, health and general welfare. And in no field is this right
of the several States more clearly recognized than in that of
public education.
Judge Parker quoted from an opinion by the District of Columbia’s
Judge E. B. Prettyman, an outstanding jurist who had considered
the question a year earlier in _Carr_ v. _Corning_ (182 F.2d 14).
There Judge Prettyman raised the question of whether the Fourteenth
Amendment had lifted the entire problem of race relations out of the
hands of all legislatures and settled it. “We do not think it did,”
he said. “Such problems lie naturally in the field of legislation, a
method susceptible of experimentation, of development, of adjustment
to the current necessities in a variety of community circumstance. We
do not believe that the makers of the first ten amendments in 1789 or
of the Fourteenth Amendment in 1866 meant to foreclose legislative
treatment of the problem in this country. This is not to decry
efforts to reach that state of common existence which is the obvious
highest good in our concept of civilization. It is merely to say
that the social and economic inter-relationship of two races living
together is a legislative problem, as yet not solved, and is not a
problem solved fully, finally or unequivocally by a fiat enacted many
years ago. We must remember that on this particular point we are
interpreting a Constitution and not enacting a statute.”
Judge Parker went on in his own opinion to review decisions of
the Supreme Court sustaining the separate-but-equal doctrine, and
to distinguish between education at the graduate-school level and
education at the elementary-school level. In dealing with the grammar
schools, under systems of compulsory attendance, local lawmakers have
problems of educational policy that must take into account not only
questions of instruction “but also of the wishes of the parent as
to the upbringing of the child and his associates in the formative
period of childhood and adolescence.” If public education is to
have the support of the people through their legislatures, Judge
Parker said, “it must not go contrary to what they deem for the best
interests of their children.” The plaintiffs’ expert witnesses had
testified that mixed schools would benefit children of both races
by exposing them to democratic opportunities in community living.
Defense witnesses, on the other hand, had testified that mixed
schools would result in friction and tension. Said the court:
The questions thus presented are not questions of constitutional
right but of legislative policy, which must be formulated,
not _in vacuo_ or with doctrinaire disregard of existing
conditions, but in realistic approach to the situations to which
it is to be applied.... The Federal courts would be going far
outside their constitutional function were they to attempt to
prescribe educational policies for the States in such matters,
however desirable such policies might be in the opinion of some
sociologists or educators. For the Federal courts to do so would
result, not only in interference with local affairs by an agency
of the Federal government, but also in the substitution of the
judicial for the legislative process in what is essentially a
legislative matter.
The public schools are facilities provided and paid for by the
States. The State’s regulation of the facilities which it furnishes
is not to be interfered with unless constitutional rights are
clearly infringed. There is nothing in the Constitution that
requires that a State grant to all members of the public a
common right to use every facility that it affords.... The equal
protection of the laws does not mean that the child must be treated
as the property of the State and the wishes of his family as to his
upbringing be disregarded.
In oral argument of the case, Thurgood Marshall had urged the
trial court to create judicial history by abandoning, on its own
motion, the precedents of many years in support of “separate but
equal.” Judges Parker and Timmerman were not willing to do so.
These unreversed decisions, they said, were squarely in point and
conclusive. If this long line of cases were to be overturned or held
outmoded, the Supreme Court itself would have to take that step. And
Parker concluded:
To this we may add that, when seventeen States and the Congress of
the United States have for more than three-quarters of a century
required segregation of the races in the public schools, and when
this has received the approval of the leading appellate courts
of the country including the unanimous approval of the Supreme
Court of the United States at a time when that Court included
Chief Justice Taft and Justices Stone, Holmes and Brandeis,
it is a late day to say that such segregation is violative of
fundamental constitutional rights. It is hardly reasonable
to suppose that legislative bodies over so wide a territory,
including the Congress of the United States, and great judges of
high courts have knowingly defied the Constitution for so long a
period or that they have acted in ignorance of the meaning of its
provisions. The constitutional principle is the same now that it
has been throughout this period; and if conditions have changed
so that segregation is no longer wise, this is a matter for the
legislatures and not for the courts. _The members of the judiciary
have no more right to read their ideas of sociology into the
Constitution than their ideas of economics._ [Emphasis supplied.]
In the course of time, to be sure, the Warren court was to do
precisely what Judge Parker said judges ought never to do, but
nearly three years were to elapse before that famous decree would
descend upon the South. Meanwhile, the other three cases, in Kansas,
Virginia, and Delaware, were still to be tried. They followed the
Clarendon pattern rather closely. In Topeka, counsel for the Negro
plaintiffs made little effort to show physical inequalities in the
city’s white and Negro schools. The city was then operating eighteen
white schools and four Negro schools, under a State law permitting,
but not compelling, racial separation. The trial court found as a
fact (98 F. Supp. 797) that the facilities were substantially equal:
“It is obvious that absolute equality of physical facilities is
impossible of attainment.” The broader question presented by the
plaintiffs “poses a question not free from difficulty,” but Judge
Walter A. Huxman and his colleagues in Kansas was no more disposed
than Judge Parker and Judge Timmerman in South Carolina to upset
long-established precedents. The three-judge court unanimously upheld
segregation in the Topeka schools.
In Virginia, the Prince Edward County case was tried February 25-29,
1952, before a court composed of Circuit Judge Armistead Dobie and
District Judges Sterling Hutcheson and Albert Bryan. Once again, as
in South Carolina, the defense confessed the physical inequality
of white and Negro school facilities, and accepted a court order
requiring prompt and diligent efforts to make the facilities equal.
But here, too, physical equality was not the principal issue. The
question was whether segregation in itself violated the Fourteenth
Amendment. On this point, the Negro plaintiffs produced a fresh array
of sociologists, anthropologists, psychologists, and psychiatrists to
testify to the harmful effects of segregation; the defense produced
“equally distinguished and qualified educationists and leaders in
other fields” who emphatically asserted that, given equivalent
physical facilities, offerings, and instruction, the Negro would
receive in a separate school the same educational opportunity he
would obtain in a mixed school. Each of the expert witnesses,
said Judge Bryan, “offered cogent and appealing grounds for his
conclusion.”
But the three Federal jurists in Virginia took the same position that
Parker and Timmerman had taken in Clarendon County--in brief, that
the only duty of a Federal court in such a case is to determine
whether a State’s policy is so arbitrary and capricious as to be
wholly without support in reason. Here, the “unbroken usage in
Virginia for more than eighty years” offered evidence of a policy
reflecting the established mores of the people. So distinguished
a witness as Virginia’s Colgate W. Darden, a former Governor and
then president of the University of Virginia, had testified that
elimination of separate schools would injure both races. Under the
circumstances, the court was unable to say that the State’s policy of
racially separate schools was without substance in fact or reason:
We have found no hurt or harm to either race. This ends our
inquiry. It is not for us to adjudge the policy as right or
wrong--that the Commonwealth of Virginia shall determine for itself.
Last of the four cases to be heard was in Delaware, where the State
Chancellor on April 1, 1952, entered an order directing the admission
of a number of Negro children to the public schools of New Castle
County on a nondiscriminatory basis (87 A.2d 862). The evidence
was not in dispute: The colored high school students were denied
admission to Claymont High School and were required instead to attend
Howard High School in neighboring Wilmington. Elementary pupils were
barred from Hockessin School No. 29 and required instead to attend
the all-Negro Hockessin School No. 107. The Chancellor found that
inequalities did in fact exist, in teacher training, pupil-teacher
ratio, extracurricular activities, transportation, physical plant,
and the like. Though he was inclined to agree that segregation in
itself “results in Negro children, as a class, receiving educational
opportunities which are substantially inferior to those available
to white children,” the Chancellor was unwilling to decide the
case on this new ground. On the merits of their case alone, under
the separate-but-equal rule, the Negro plaintiffs were entitled to
immediate relief. On August 28, 1952, the Supreme Court of Delaware
affirmed (91 A. [2d] 127). And the Supreme Court of the United
States, having granted certiorari in each of the cases, set them for
joint argument December 9-11, 1952.
IV
The Supreme Court of the United States then was headed by Fred M.
Vinson of Kentucky, as Chief Justice. Others who heard the ten hours
of argument that December were Hugo L. Black of Alabama, Felix
Frankfurter of Massachusetts, William O. Douglas of Connecticut,
Robert H. Jackson of New York, Harold H. Burton of Ohio, Tom C. Clark
of Texas, Sherman Minton of Indiana, and Stanley Reed of Kentucky.
It is difficult--impossible might be a better word--to guess at the
outcome of a Supreme Court case by attempting to read the minds
of the judges through the questions asked from the bench. Here,
however, it seemed unusually clear that the court was seriously
divided. Burton indicated the course that ultimately was to be taken.
During argument on the Topeka case, he put a question to Paul E.
Wilson, assistant attorney general of Kansas: “Don’t you recognize
it as possible that in seventy-five years the social and economic
conditions of the Nation have changed so that which might have been a
valid interpretation of the Fourteenth Amendment seventy-five years
ago would not be valid today?” Wilson replied that he recognized the
possibility, but did not believe the record disclosed such a change.
Evidently recalling some of Judge Parker’s language in the Clarendon
County decision, Burton persisted: “But that might be different from
saying that these courts of appeals and State supreme courts have
been wrong for seventy-five years?” Wilson agreed, but made the point
that until the Supreme Court itself overturned its own precedents,
no other guide to the law was available. When John W. Davis arose
to argue the South Carolina appeal, Burton put the same question to
him. Davis said: “My answer to that is that changed conditions may
affect policy, but changed conditions cannot broaden the terminology
of the Constitution.” Changes in social or economic conditions,
Davis thought, raised “an administrative or political question,
not a judicial one.” Burton subsided with a remark that he viewed
the Constitution as a living document “that must be interpreted in
relation to the facts of the times in which it is interpreted.”
Pointedly stating a conflicting view, Frankfurter interrupted
Thurgood Marshall’s argument at one point to recall that the court
recently had upheld the power of Louisiana to restrict the calling
of river pilots “to the question of who your father was.” The court
sustained that legislation, he said, “not because we thought it
admirable or because we believed in primogeniture, but because it
was so imbedded in the history of that problem in Louisiana that we
thought on the whole that was an allowable justification.”
At the conclusion of the argument, attorneys on both sides were
hopeful. The Negro forces felt reasonably certain they had Douglas,
Black, and Burton; the State attorneys thought they had impressed
Jackson, Minton, Frankfurter, and probably Clark. Vinson and Reed
were question marks. It was anticipated that a decision would be
handed down by a divided court some time in March or April.
Instead, time ran on until June 8, 1953, when the court, unable to
reach any decision on which a majority of the court could agree,
set the case for reargument on five questions. Two of the questions
were technical in nature: Assuming it were decided that segregation
in itself violates the Fourteenth Amendment, how should decrees be
formulated? How should the cases be handled on remand to the lower
courts? The other three questions went to the very heart of American
constitutional law.
_Question 1: What evidence is there that the Congress which
submitted and the State legislatures and conventions which ratified
the Fourteenth Amendment contemplated or did not contemplate,
understood or did not understand, that it would abolish segregation
in public schools?_
The Supreme Court posed this first question, in theory at least,
for one reason only: Its object was to determine whether the power
to operate racially separate schools ever had been prohibited to
the States _by the Constitution_; for if this power had not been
prohibited to the States by the Constitution, it was theirs to
exercise respectively, for good or ill. (It was conceded that the
power never had been prohibited to them by any law of the United
States adopted pursuant to the Constitution). Obviously, nothing in
the Constitution possibly could prohibit this power to the States
except Section 1 of the Fourteenth Amendment. This section imposes
three prohibitions on the States: (1) No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens
of the United States; (2) nor shall any State deprive any person of
life, liberty, or property without due process of law; (3) nor deny
to any person within its jurisdiction the equal protection of the
laws.
In point of fact, it was only the third of these prohibitions that
concerned the court. (A right to attend school in any particular
State is not a privilege of a “citizen of the United States,” but of
a citizen of the State in question; and only by rather far-fetched
reasoning could it be contended that by placing white children
in one school and Negro children in another school, a State was
depriving any person of life, liberty, or property without due
process of law. From the beginning, the plaintiffs’ case rested in an
assertion that equal protection had been denied the Negro pupils.)
How was the court to be advised if this provision of the Fourteenth
Amendment prohibited to the States the power to operate racially
separate schools? Only one procedure is known to the law; it is the
procedure used by the Supreme Court and by other courts from the very
beginning of the Republic: _It is to determine the intent of the
framers._ What did the Congress and the ratifying States mean by the
Fourteenth Amendment? In terms of racially separate public schools,
what did they intend the amendment to accomplish? What was their
understanding? In construing a written Constitution, an inquiry into
intent is paramount. Cooley’s _Limitations_ states the rule in this
fashion:
A cardinal rule in dealing with written instruments is that
they are to receive an unvarying interpretation, and that their
practical construction is to be uniform. A Constitution is not
to be made to mean one thing at one time, and another at some
subsequent time when the circumstances may have so changed as
perhaps to make a different rule in the case seem desirable. A
principal share of the benefit expected from written Constitutions
would be lost if the rules they established were so flexible as
to bend to circumstances or be modified by public opinion. It is
with special reference to the varying moods of public opinion,
and with a view to putting the fundamentals of government beyond
their control, that these instruments are framed; and there can be
no such steady and imperceptible change in their rules as inheres
in the principles of the common law. These beneficent maxims of
the common law which guard person and property have grown and
expanded until they mean vastly more to us than they did to our
ancestors, and are more minute, particular, and pervading in their
protections; and we may confidently look forward in the future
to still further modifications in the direction of improvement.
Public sentiment and action effect such changes, and the courts
recognize them; but a court or legislature which should allow a
change in public sentiment to influence it in giving construction
to a written Constitution not warranted by the intention of its
founders, would be justly chargeable with reckless disregard of
official oath and public duty.... What a court is to do, therefore,
is to declare the law as written, leaving it to the people
themselves to make such changes as new circumstances may require.
The meaning of the Constitution is fixed when it is adopted, and it
is not different at any subsequent time when a court has occasion
to pass upon it.
Chief Justice Taney made the same point in the _Dred Scott_ case
(19 Howard 393). It had been argued (this was in 1857) that public
attitudes had changed enormously toward the Negro since the adoption
of the Constitution sixty-eight years earlier. But should this shift
in public attitude induce the court “to give to the words of the
Constitution a more liberal construction in their favor than they
were intended to bear when the instrument was framed and adopted”?
Taney thought such an argument “altogether inadmissible” in any
tribunal called upon to interpret the Constitution:
If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended;
but while it remains unaltered, it must be construed now as it was
understood at the time of its adoption. It is not only the same
in words, but the same in meaning, and delegates the same powers
to the government, and reserves and secures the same rights and
privileges to the citizen; and as long as it continues to exist
in its present form, it speaks not only in the same words, but
with the same meaning and intent with which it spoke when it came
from the hands of its framers, and was voted on and adopted by the
people of the United States. Any other rule of construction would
abrogate the judicial character of this court, and make it the mere
reflex of the popular opinion or passion of the day. This court was
not created by the Constitution for such purposes.
Many other authorities, over a span of generations, have said
substantially the same thing about the necessity of courts’ holding
steadfastly to the demonstrable intention of a constitutional
provision. “The ultimate touchstone of constitutionality,”
Frankfurter once asserted, “is the Constitution itself and not
what we have said about it” (306 U. S. 491). Hughes urged his
colleagues not to be swayed by arguments that extraordinary events
may justify abandonment of the rule: “Extraordinary conditions do not
create or enlarge constitutional power” (245 U. S. 495). Douglas,
dissenting in _New York_ v. _the United States_ (326 U. S. 572),
sternly lectured his brothers on their obligations in this regard;
when a constitutional rule is to be fashioned that undermines the
long-understood sovereignty of the States, he said, it ought never
to be done by judicial construction: “Any such change should be
accomplished only by constitutional amendment.”
This solid principle of constitutional law was in the court’s mind
that day in June 1953 when it asked for reargument in the School
Segregation Cases. What happened to the principle thereafter is sadly
apparent: The court tossed it summarily to one side. But briefly, at
least, the court recognized that in constitutional cases, clocks must
always be turned back.
The NAACP, on behalf of the Negro plaintiffs, did its dead-level
best to come up with some history to support its case. The story of
the plaintiffs’ exertions was confessed on December 28, 1961, by
Professor Alfred H. Kelly, of Wayne State University in Detroit,
in an address before the annual meeting of the American Historical
Association in Washington. Excerpts from his address were reprinted
in the _U. S. News & World Report_ of February 5, 1962. They provide
a fascinating, and a sobering, revelation of what Negrophile zeal can
do to an honest man.
“One day in early July, 1953,” Professor Kelly began, “I received a
letter from Mr. Thurgood Marshall.”
Marshall wanted Professor Kelly to prepare a research paper that
would support the NAACP’s answer to the first question posed by the
court. At stake was the venerable “separate but equal” rule, to which
Professor Kelly, as a person, was deeply opposed. Marshall explained
that the rule was crumbling and about to fall; but if the rule were
to be overthrown after all these years, “it would entail a piece of
judicial lawmaking which could be justified only by a philosophy
of extreme judicial activism--and this at the hands of a Court
wherein several expressed their disapproval of judicial activism
and lawmaking by Court-made fiat.” But if this revolution in the
legal status of the Negro were to be achieved, the attempt had to be
made--and Dr. Kelly was ready to help make it. After all, both the
lawyers and the scholars at work on the case agreed that the old rule
had to be disposed of--but how? Dr. Kelly paraphrased their dilemma:
We would like to dispose of the Plessy rule, for once and for
all....
But we are fearfully embarrassed by the apparent historical
absurdity of such an interpretation of the Fourteenth Amendment and
equally embarrassed by the obvious charge that the Court will be
“legislating” if it simply imposes a new meaning on the Amendment
without regard to historical intent.
How to escape from this embarrassment? Why, historians must produce
for the NAACP a plausible historical argument to justify the court
in pronouncing (a) that the intent of the Fourteenth Amendment in
this regard was unclear, or (b) that the amendment really had been
intended, all along, to abolish school segregation, or at least to
sanction its abolition by judicial fiat.
So Dr. Kelly went to work. As a constitutional historian, he
acknowledged what the South’s attorneys were to contend, that the
Fourteenth Amendment was the direct outgrowth of the Civil Rights Act
of 1866. He did what a Southern lawyer or anyone else would do under
the circumstances: He went to the _Congressional Globe_ for the first
session of the Thirty-ninth Congress of 1866 and read the debates
himself. To his intense dismay, he found the _Globe_ “had a good deal
to say about school segregation.” And at first blush, “most of what
appeared there looked rather decidedly bad....” Indeed, it looked as
if John W. Davis, arguing the case for the South Carolina defendants,
“would win the historical argument hands down!”
But Dr. Kelly spat on his hands and went to work. In the course of
time, by his own candid and tortured admission, “I ceased to function
as a historian, and, instead, took up the practice of law without a
license.”
The problem we faced was not the historian’s discovery of truth,
the whole truth, and nothing but the truth; the problem instead
was the formulation of an adequate gloss on the fateful events of
1866 sufficient to convince the Court that we had something of an
historical case....
It is not that we were engaged in formulating lies; there was
nothing as crude and naive as that. But we were using facts,
emphasizing facts, bearing down on facts, sliding off facts,
quietly ignoring facts and, above all, interpreting facts in a way
to do what Marshall said we had to do--“get by those boys down
there.”
Charitably, a curtain may be drawn over the agonizing sessions that
Dr. Kelly and his associates, sincerely wedded to a social and
legal cause, spent in pacing up and down a suite in the NAACP’s
headquarters on West 40th Street in New York, dictating and arguing
and glossing over, “hammering out a strategy” that would contain some
essential measure of historical truth, but yet ... but yet....
They produced a 235-page brief. It must stand as a pathetic monument
to what happens when historians cease to be historians and take up
the unlicensed practice of law. The conclusions there drawn, that
the “proponents of absolute equalitarianism emerged victorious in
the Civil War and controlled the Congress that wrote the Fourteenth
Amendment,” are a bitter travesty upon the actual course of events.
For it is plain to any objective student--to any man who will stand
still long enough to ask and receive an answer to the elementary
question, _What happened?_--that no such thing occurred. The visible,
palpable, unrelenting, unavoidable truth is that Sumner and Stevens
and their fellow radicals did not control the Congress in 1866; they
did _not_ get what they wanted in the Fourteenth Amendment; they got
half a loaf at most: And the proof of the pudding may be found where
it always lies, in what happened after the amendment was adopted.
The answer to the court’s first question is perfectly clear: _Of
course_ the Congress that submitted the Fourteenth Amendment, and the
States that ratified it, did not contemplate or understand that the
amendment prohibited to the States the power to maintain segregation
in the public schools. If they had contemplated or understood
this, they would have abolished such segregation where it existed
and shunned it in the schools thereafter. In the simple, homely,
undeniable fact that such segregation was not abolished but rather
was widely continued lies a complete answer to the court’s question.
It should have been a complete answer to the whole case.
Evidence to support this view may be adduced overwhelmingly from
three principal sources: (1) Actions of the Congress itself; (2)
actions of the State legislatures and constitutional conventions; and
(3) decisions of State and Federal courts in the period immediately
following adoption of the amendment.
_1. Actions of the Congress itself._ The Thirteenth Amendment to
the Constitution, prohibiting slavery within the United States, or
in any place subject to their jurisdiction, was proposed by the
Congress on January 31, 1865, two months before Lee’s surrender at
Appomattox was to end the War for Southern Independence. Northern
States promptly set the ratification process in motion, and with
a cessation of hostilities in April, Southern States came along.
During the first week of December 1865, barely ten months after
the Thirteenth Amendment had been proposed, the assents of Alabama,
North Carolina, and Georgia brought the number of ratifications to
twenty-seven--three-fourths of the thirty-six States regarded as then
“in the Union” for constitutional purposes. On December 18, 1865,
Secretary Seward declared the Thirteenth Amendment a part of the
Constitution.
The Southern States that had been counted as never having left
the Union, for purposes of ratifying the Thirteenth Amendment,
soon discovered that for other purposes they were still out of
the Union. They were denied what the Constitution promises every
State--representation in the Congress by at least one member of the
House and two members of the Senate--and they were permitted no
hand in framing the second Reconstruction amendment that was to be
submitted the following year. This task became the responsibility of
a joint committee of six Senators and nine Congressmen, created in
December at the request of Thaddeus Stevens.
During January and February 1866, while the committee was at work
in executive sessions, the House and Senate completed action on the
First Supplemental Freedmen’s Bureau Bill. The act is important in
tracing the meaning of the Fourteenth Amendment, for it explicitly
defined the principal civil rights and immunities that were to be
under constant discussion in the Congress for the next several
months. This law guaranteed to the newly freed Negroes in the
Southern States “the right to make and enforce contracts, to sue, be
parties, and give evidence; to inherit, purchase, lease, sell, hold
and convey real and personal property; and to have full and equal
benefit of all laws and proceedings for the security of person and
estate.”
The Freedmen’s Bill applied, by its own terms, only to the late
Confederacy. Simultaneously, a legislative effort was launched to
secure these same civil rights in the country as a whole. On February
2, after bitter debate on its constitutionality, what was to become
the Civil Rights Act of 1866 passed the Senate. It went to the
House, and in early March was favorably reported by the Judiciary
Committee. During floor debate on March 13, Congressman Wilson of
Iowa, chairman of the committee in charge of the bill, addressed
himself to the bill’s opening provision, declaring that “there shall
be no discrimination in the civil rights or immunities among the
inhabitants of any State or Territory of the United States on account
of race, color, or previous condition of slavery.” This part of the
bill, Wilson said, “will probably excite more opposition than any
other.” He undertook to allay apprehensions:
What do these terms mean? Do they mean that in all things civil,
social, political, all citizens, without distinction of race or
color, shall be equal? By no means can they be so construed....
_Nor do they mean that ... their children shall attend the same
schools. These are not civil rights or immunities._ [Emphasis
added.]
The Civil Rights Bill passed the House by 111-38 on March 13; it was
vetoed on March 27, and passed over the veto on April 9.
These dates are important. Late in February 1866, the Stevens
Committee had brought into the House one draft of a proposed
Fourteenth Amendment. It had been debated, and then sent back for
more work. On April 21, a new draft came before the committee.
On April 25, amendments were approved in committee that put the
amendment in the form in which it finally was to become part of the
Constitution. These changes wrote into Section 1 new prohibitions
upon the powers of the States: “No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the law.”
When the proposed constitutional amendment reached the floor of the
House on May 8, both its friends and its foes reached remarkable
agreement on the amendment’s primary purpose: to nail into the
Constitution the Civil Rights Act of 1866 that on April 9 had been
passed over the President’s veto. Stevens reminded his radical
colleagues that a mere law always was subject to repeal by a majority
of the House and Senate: “And I need hardly say that the first time
that the South with their copperhead allies obtain the command of
Congress it will be repealed.” An opponent of the resolution, Rogers
of New Jersey, said the Stevens measure “is no more than an attempt
to embody in the Constitution of the United States that outrageous
and miserable civil rights bill....”
On the Senate side, when the resolution came there for debate on
May 23, the same view was taken. Howard of Michigan, in charge of
the paper, said the object was “to put this question of citizenship
and the rights of citizens and freedmen under the civil rights bill
beyond the legislative power.” Davis of Kentucky and Henderson
of Missouri agreed. On June 8, the Senate voted in favor of the
resolution, 33-11, with five Senators not voting; and on June 13 the
House, which then had 184 members, completed action by concurring
in the Senate amendments, 120-32, with 32 not voting. The House
margin was four votes short of the two-thirds required under the
Constitution for submitting an amendment, but the resolution was
declared to be passed anyhow.
While all this was going on, other matters of course were coming
before the Congress. One such matter was a bill passed in the Senate
on May 21, providing for segregated schools in the District of
Columbia. A companion bill, introduced in April, adopted in May, made
effective in July, appropriated funds to the Negroes’ segregated
schools. And year after year, from that time on until 1954, the
Congress continued to provide for racially separate schools in the
District of Columbia.
Not one iota of evidence can be adduced from the annals of Congress
in 1866 to show that any responsible member of the House or Senate
believed the Fourteenth Amendment in any fashion would affect the
operation of segregated schools in the States. All that Negro counsel
could produce in their reargument on the point in 1953, despite
the desperate labors of Dr. Kelly and his associates, were some
generalities, some sweeping statements of ideals, and other nebulous
expressions on the part of radical abolitionists on the one hand
and apprehensive States’ Righters on the other. It is plain that
the Stevens-Sumner group won from the Thirty-ninth Congress two
compromise instruments, a statute and a constitutional amendment,
both intended to guarantee to the Negro the essential civil rights
spelled out in the Freedmen’s Bill and in the Civil Rights Act--to
sue and be sued, to own and inherit property, and the like. “The
right to go to school,” as Senator Trumbull of Pennsylvania was to
say in 1872 in debating the General Amnesty Act, “is not a civil
right and never was.”
_2. Actions of the State legislatures and constitutional
conventions._ The proposed Fourteenth Amendment to the Constitution
went out to the States on June 18, 1866. Connecticut ratified on June
30, New Hampshire on July 6, Tennessee on July 19. New Jersey and
Oregon, both of whom later were to rescind their actions, ratified
in September. Then came a jolt: On October 27, Texas flatly rejected
the proposed amendment, by a vote of 70 to 5 in the House and 27
to 1 in the Texas Senate. Vermont ratified on October 30, but on
November 1 Georgia rejected by 147-2 and 38-0 in its House and
Senate. Then, in rapid succession, Arkansas, Florida, North Carolina,
and South Carolina spurned the amendment. In January 1867, Virginia,
Mississippi, Kentucky, and Maryland rejected. Early in February,
Delaware and Louisiana turned it down also.
On March 2, 1867, an infuriated Congress enacted over Johnson’s veto
a law that seems incredible by any standpoint of constitutional law.
This “Act to Provide for the More Efficient Government of the Rebel
States” further defined the districts that had been created in the
former Confederacy by earlier Reconstruction acts. Section 5 of the
Act fixed two requirements for readmission of the Southern States to
full standing in the Union. The first condition was that each of the
States adopt a new State Constitution; the second was that, at the
first legislature to be held after adoption of the new Constitution,
each State must ratify the Fourteenth Amendment. Delegates to
the State constitutional conventions were to be chosen by all
male citizens regardless of race, except felons and those who had
participated in the “rebellion.” No Confederate veteran who earlier
had been a member of a State legislature, or held any other office
under the government of a Southern State, could become a candidate
for the new legislatures to be elected.
With that vindictive and extortionate act, military government
settled upon the South and all semblance of free republican
government vanished. With no alternative but to submit or remain
under the sword, the Southern States accepted the amendment.
Arkansas ratified in April 1868, Florida on June 9, North Carolina,
South Carolina, Alabama, and Louisiana in July. Meanwhile, Ohio on
January 13, 1868, had undertaken to rescind its ratification of the
amendment, and New Jersey, on March 25, had done the same thing.
In both States, recently the bitter foes of the South, the new
amendment was denounced as unconstitutionally approved in the House
of Representatives and unconstitutionally demanded of the Southern
States. (It was several months later, in October 1868, that Oregon
also attempted to rescind its ratification.)
On July 20, 1868, Secretary Seward issued a cautious proclamation
certifying that the Fourteenth Amendment had been ratified. There
were, he surmised, thirty-seven States then “in the Union.”
Twenty-eight, by Seward’s count, had approved the amendment, but he
was doubtful about the whole affair. Among his twenty-eight were
Arkansas, Florida, North Carolina, Louisiana, and South Carolina,
where ratification had been sanctioned by “newly constituted and
newly established bodies avowing themselves to be acting as the
legislatures” of these States. If their resolutions were valid, and
if the original ratifications of Ohio and New Jersey were still
valid, notwithstanding their subsequent withdrawals, the amendment
was a part of the Constitution.
On the following day, July 21, Congress passed a joint resolution
to resolve Seward’s doubts. It ordered him to declare the amendment
unconditionally adopted; and on July 28, adding the names of Alabama
and Georgia, whose notifications had just been received, Seward
declared the Fourteenth officially a part of the Constitution.
Was the Fourteenth Amendment thus legally and constitutionally added
to the Constitution in 1868? It is exceedingly doubtful. Neither
a resolution of the Congress nor a proclamation of a Secretary
of State can supersede the Constitution itself. If the States of
Arkansas, Florida, North Carolina, Alabama, South Carolina, and
Louisiana were “in the Union” in 1865, when their ratifications
of the Thirteenth Amendment were counted among the three-fourths
necessary to adoption, it is impossible to understand how they
legally could have been read out of the Union by the act of March
2, 1867, put under military dictatorship, and ordered to ratify the
Fourteenth Amendment under duress. If the Confederate States are
eliminated from the equation altogether, a mathematical case can be
made to support ratification. Twenty-five States were represented in
the Thirty-ninth Congress that proposed the Fourteenth Amendment in
1866. Nebraska was admitted to the Union March 1, 1867. Three-fourths
of twenty-six States (for ratification purposes) is twenty States.
By the time of the proclamations and resolutions of July 1868,
twenty-one States outside the South had unconditionally ratified
the amendment. But the assumption on which the Congress proceeded
was that there were thirty-seven States in the Union in the summer
of 1868. Three-fourths of thirty-seven States (for ratification
purposes) is twenty-eight States. In order to count twenty-eight
States, the ratifications of the rescinding New Jersey and Ohio
must be added to those of Arkansas, Florida, North Carolina,
Louisiana, and South Carolina; or, in place of New Jersey and Ohio,
the ratifications of Alabama and Georgia may be substituted. In any
event, reliance must be placed upon the coerced ratifications of
either five or seven Southern States which at that time were denied
a republican government, denied representation in the Congress, and
denied the right to act freely upon the proposed amendment. This is
the tainted parenthood of the constitutional provision on which the
Supreme Court of the United States, in the school cases, sought to be
informed.
I digress. The question here is, “What evidence is there that the
... State legislatures and conventions which ratified the Fourteenth
Amendment contemplated or did not contemplate, understood or did not
understand, that it would abolish segregation in public schools?”
This is the evidence:
Among the States that ratified the Fourteenth Amendment were
these twelve: Connecticut, Iowa, Maine, Massachusetts, Michigan,
Minnesota, Nebraska, New Hampshire, Oregon, Rhode Island, Vermont,
and Wisconsin. There is not a scrap of evidence to suggest that the
issue of school segregation ever was considered in any of them. Rhode
Island, Connecticut, and Michigan were the only States in this group
with as much as 2 per cent Negro population in 1870 (Rhode Island
had 5000 Negroes out of 217,000; Connecticut had 9668 Negroes in a
population of 537,000; Michigan a Negro population of 11,849 in a
total of 1,184,000.) The rest ranged down to the 346 Negroes then
resident in Oregon and the 789 then resident in Nebraska. School
segregation simply was no problem in these States in 1866. The
question never was discussed.
Two other States that ratified the Fourteenth Amendment were Florida
and Louisiana. Both houses of Florida’s legislature, when they were
in a position to act freely, rejected the amendment unanimously. This
was in December 1866. The following March came the Reconstruction
Act, and in the course of time came a State constitutional convention
set up by military decree. It was comprised of eighteen Negroes
and twenty-seven Carpetbaggers and Scalawags. On June 9, 1868, the
Governor of Florida dispatched to a similarly chosen legislature a
message recommending “that no action be taken save that dictated by
the acts of Congress as conditions precedent to admission, to wit:
The passage of the proposed amendment to the Constitution, known as
the Fourteenth Article....” The Florida legislature submissively
ratified the amendment, 23-6 in the House, 10-3 in the Senate. Public
schools were set up, with no statutory or constitutional provision
to prevent their joint use by both races; but the evidence is
persuasive that no integration ever occurred in this period, and in
1885, when an end to Reconstruction permitted Florida to follow the
separate-but-equal pattern which by then had been solidly established
elsewhere, the Florida Constitution was amended to provide that
“white and colored children shall not be taught in the same school,
but impartial provision shall be made for both.” Certainly Florida
did not understand that the amendment, of and by itself, prohibited
the States from requiring racial separation in the schools.
The situation in Louisiana was more chaotic still. The Louisiana
legislature unanimously rejected the amendment in February 1867.
Reconstruction followed. A constitutional convention was created,
composed of forty-nine Negroes and forty-nine Carpetbaggers and
Scalawags; it wrote a provision into the Louisiana Constitution that
“all children ... shall be admitted to the public schools in common,
without distinction of race, color, or previous condition. There
shall be no separate schools or institutions of learning established
exclusively for any race by the State of Louisiana.” But this
language in a coerced State Constitution was ignored by the people.
In 1870, the Superintendent of Public Instruction was to complain
that the constitutional provision “excites a determined opposition
on the part of many who would otherwise cooperate in the opening of
schools and in the raising of funds for their support.” As the years
passed, Louisiana established a system of racially separate public
schools, in accordance with the demonstrable understanding of the
Fourteenth Amendment elsewhere in the Union, and a freely chosen
constitutional convention in 1898 made segregation mandatory.
Florida and Louisiana have been here singled out, because
the confused record in the two States offers the best
opportunity--indeed, the only opportunity--for a case to be made
that _any_ of the States ever understood or contemplated that the
Fourteenth Amendment might in any fashion serve to prohibit the
operation of racially separate schools. If evidence cannot be adduced
here, it cannot be adduced anywhere. And this poor, scanty record of
actions taken under duress--and later repudiated under freedom--is
the best that hard-laboring historians can produce.
What of the other States? In twenty-three other States, positive
evidence is available that neither the State conventions nor the
State legislatures at any time ever understood or contemplated that
the Fourteenth Amendment prohibited them from establishing racially
separate schools.
Look at the record, _first in terms of States outside the South_:
_California_ took no action on the Fourteenth Amendment, but it
established racially separate schools by statute in 1870, two years
after the amendment had been ratified.
_Delaware_ refused to ratify the amendment, and made no provision
for Negro education of any sort until 1881. Then separate Negro
schools were established, and Delaware’s constitution of 1897
made segregation mandatory. How can it be contended that Delaware
understood the Fourteenth Amendment to prohibit separate schools?
_Illinois_ refused to admit Negroes to any schools at the time of
its ratification of the Fourteenth Amendment. It was not until five
years later that a general school law admitted them to educational
facilities--some segregated, others integrated. Segregated schools
persisted at least until 1884, when the Supreme Court of Illinois
acknowledged the operation of segregated institutions, and ruled them
in violation of a State law that had been passed in the interim. But
no court or legislature in Illinois ever asserted that such schools
were in violation of the Fourteenth Amendment.
_Indiana_ ratified the Fourteenth Amendment in June 1867, following
a message from Governor Morton specifically advocating “the
establishment of separate schools,” because “I could not recommend
that white and colored children be placed together in the same
schools.” And it was not until 1949--eighty-one years after adoption
of the Fourteenth Amendment--that Indiana formally abandoned
segregation in its schools.
_New Jersey_ was another Northern State in which racially separate
schools were continued long after adoption of the Fourteenth
Amendment. It was not until 1881 that the legislature prohibited
their operation, but when this statute was construed three years
later, no mention of any sort was made of the Fourteenth Amendment.
_New York._ What of New York? The State ratified the Fourteenth in
January 1867, and later the same year convened a constitutional
convention at which a ringing declaration was adopted in favor
of civil rights--but there was not a word in this declaration
in support of racially integrated schools. On the contrary,
separate schools were specifically permitted in New York until
1900--thirty-two years after the Fourteenth Amendment became part
of the Constitution. Can it be seriously contended that New York
understood or contemplated that the amendment in and of itself would
abolish school segregation?
To bring these Northern examples to an end, consider Ohio,
Pennsylvania, and West Virginia. _Ohio_ had racially separate schools
at the time it ratified in 1867; such schools specifically were
continued by a statute of 1874, and the system was not discarded by
State law until 1887. _Pennsylvania_ also had a system of segregated
schools at the time of its ratification in 1867; the legislature
continued the system by statute in 1869; the system was not abolished
until 1881. _West Virginia’s_ legislature ratified the Fourteenth
on January 16, 1867. On February 27, precisely six weeks later, the
same legislature adopted a statute providing that “white and colored
persons shall not be taught in the same schools.” What is one to say
of West Virginia’s understanding of the meaning of the Fourteenth
Amendment?
Action of the Southern States was entirely in accord with the
understanding thus demonstrated by their recent enemies in the North.
To summarize these briefly:
_Alabama_ ratified under coercion on July 13, 1868; but less than a
month later, on August 11, 1868, the same legislature--even though it
was dominated by Negroes and Carpetbaggers--enacted a law prohibiting
mixed schools “unless it be by the unanimous consent of the parents
and guardians of such children.”
_Arkansas_ ratified on April 6, 1868. The same military legislature
on July 23, 1868, passed a statute directing the State Board of
Education to “make the necessary provisions for establishing separate
schools for white and colored children.”
_Georgia_ ratified twice, once in 1868 and again in 1870. The latter
legislature still was under Reconstruction rule; a majority of both
houses were Republicans. But even this legislature, immediately after
its renewed ratification of 1870, adopted a school act providing that
“the children of the white and colored races shall not be taught
together in any sub-district of the State.”
_Kentucky_, not subject to military reconstruction, rejected the
Fourteenth in January 1867. The same legislature provided for
racially separate schools, and the State’s constitution of 1891
required them.
_Mississippi’s_ legislature, dominated by Republicans and Negroes,
ratified the Amendment in 1870 and simultaneously provided for a
public school system. It was a segregated system, though the law did
not require this specifically. Segregation was made mandatory in the
schools in 1878.
_North Carolina_ ratified in July 1868. The following winter saw
enactment of a statute directing local school authorities to
establish “separate schools for the instruction of children and youth
of each race.”
_South Carolina’s_ Reconstruction constitutional convention
(seventy-six Negroes, forty-eight Carpetbaggers) directed the
forthcoming State legislature to establish a public school system
free to all children “without regard to race or color,” but the
Reconstruction legislature (only twenty-two of its 155 members could
read or write) paid no attention to the provision. The Governor
was a brevet brigadier general from Maine, Robert K. Scott. In his
Inaugural Address he told the assembled illiterate Negroes and white
legislators quite frankly that he deemed racial separation in the
schools “of the greatest importance to all classes of our people.”
Listen to what this Union Governor of South Carolina said, on the
very day after the South Carolina legislature had ratified the
Fourteenth Amendment:
While the moralist and philanthropist cheerfully recognizes the
fact that “God hath made of one blood all nations of men” yet the
statesman in legislating for a political society that embraces two
distinct, and in some measure, antagonistic races, in the great
body of its electors, must, as far as the law of equal rights
will permit, take cognizance of existing prejudices among both.
In school districts, where the white children may be preponderate
in numbers, the colored children may be oppressed, or partially
excluded from the schools, while the same result may accrue to
the whites, in those districts where colored children are in
the majority, _unless they shall be separated by law as herein
recommended_. [Emphasis _supplied_.]
South Carolina’s legislature adopted Governor Scott’s recommendation.
A Massachusetts Negro became State Superintendent of Public
Instruction; and he presided over the establishment of a system of
segregated schools.
A reconstructed legislature in _Texas_ ratified the Fourteenth
Amendment in February 1870. The same legislature provided for public
schools to be operated by trustees who “may make any separation of
the students or schools necessary to insure success.” Segregated
schools were made mandatory in Texas by the Constitution of 1876.
Finally, _Virginia_. The Old Dominion’s first legislature under the
Reconstruction Constitution of 1869 ratified the Fourteenth and
Fifteenth Amendments to the Federal Constitution, and then adjourned
until the State’s representatives were readmitted to Congress. Then
the same legislature reconvened and promptly enacted a statute
providing for a system of free schools under a requirement that
“white and colored persons shall not be taught in the same schools,
but in separate schools.”
What does all this add up to? Simply this: There were thirty-seven
States whose “understandings” and “contemplations” of the Fourteenth
Amendment at the time of its ratification must be sought. In
fourteen of these States (twelve non-Southern States plus Florida
and Louisiana), no substantial evidence can be adduced one way or
another. In twenty-three of these States (fourteen non-Southern
States and nine Southern States), positive evidence exists to show
that ratification of the Fourteenth Amendment was never thought
to prohibit the operation of racially separate schools. The very
legislative bodies that ratified the amendment simultaneously
provided for separate schools. In not a single one of the
thirty-seven States is there any substantial evidence--or even
any flimsy evidence--to show affirmatively that the legislatures
that considered the Fourteenth Amendment believed, understood, or
contemplated that the amendment in and of itself, would prohibit
school segregation.
_3. Decisions of State and Federal courts in the period immediately
following adoption of the amendment._ Confronting this overwhelming
evidence, counsel for the Negro plaintiffs desperately attempted to
establish what might be called a conspiracy theory, so far as the
Southern States were concerned: These States, it was suggested, knew
all along that the Fourteenth Amendment was intended to prohibit them
from maintaining separate schools, but they conspired to deceive
the rest of the nation until they were formally readmitted to the
Union and Reconstruction had ended. This theory does not justify
even the contempt with which defense counsel brushed it aside.
The plain and visible fact is that racially separate schools were
everywhere recognized and accepted as fully in compliance with the
new constitutional provisions. It is not necessary to seek evidence
of this recognition in Southern States alone, nor to rely upon the
interpretation that “politicians” may have put upon the amendment
here and there. Let us turn from Congress and the State legislatures,
and see what the courts said about the meaning of the Fourteenth
Amendment in the years immediately following its ratification in 1868.
The clock should be turned back first to 1849, nineteen years
before the ratification of the amendment, when Sarah C. Roberts, a
five-year-old Negro girl, brought suit against the City of Boston
(59 Mass. 198) in the Supreme Judicial Court of Massachusetts.
Boston then had two primary schools exclusively for Negroes, one
on Belknap Street, in the Eighth School District, the other on
Sun Court Street, in the Second. Negroes made up one sixty-second
of Boston’s population, but among this one sixty-second was Sarah
Roberts, a resident of the Sixth District on Andover Street. She
wanted to attend the white school nearest her. Charles Sumner and
R. Morris, Jr., brought suit in her behalf, contending as many
others were to contend in subsequent years that Sarah had a right
to attend her neighborhood school, and that Boston had no right to
make classification by race. The suit came on to be heard before
Chief Justice Lemuel Shaw and others. This, to repeat, was many years
prior to the Fourteenth Amendment, but the question put to the court
was to be the question argued many times thereafter: What are the
“privileges” of the individual citizens? Where do the powers of the
state end in terms of a racial classification for schoolchildren?
This is Boston, 1849:
The great principle, advanced by the learned and eloquent advocate
of the plaintiff, is, that by the constitution and laws of
Massachusetts, all persons without distinction of age or sex, birth
or color, origin or condition, are equal before the law. This, as a
broad general principle, such as ought to appear in a declaration
of rights, is perfectly sound; it is not only expressed in terms,
but pervades and animates the whole spirit of our constitution of
free government. But, when this great principle comes to be applied
to the actual and various conditions of persons in society, it will
not warrant the assertion that men and women are legally clothed
with the same civil and political powers, and that children and
adults are legally to have the same functions and be subject to
the same treatment, but only that the rights of all, as they are
settled and regulated by law, are equally entitled to the paternal
consideration and protection of the law, for their maintenance
and security. What those rights are, to which individuals, in the
infinite variety of circumstances by which they are surrounded in
society, are entitled, must depend on the laws adapted to their
respective relations and conditions.
Conceding, therefore, in the fullest manner, that colored persons,
the descendants of Africans, are entitled by law, in this
commonwealth, to equal rights, constitutional and political, civil
and social, the question then arises, whether the regulation in
question, which provides separate schools for colored children, is
a violation of any of these rights.
The Massachusetts court faced the issue squarely, and concluded that
separate schools did no violence to any civil right or privilege held
by the colored children. The court’s inquiry was directed toward a
single point: Was this a reasonable classification? Had the school
trustees abused their responsibility? After great deliberation,
the trustees had concluded that the good of both white and colored
children would be promoted by separate primary schools. Said the
court: “We can perceive no ground to doubt that this is the honest
result of their experience and judgment.” It was urged that such
separation tends to deepen and perpetuate the odious distinction of
caste, founded in a deep-rooted prejudice in public opinion. Said the
Massachusetts court:
This prejudice, if it exists, is not created by law, and probably
cannot be changed by law. Whether this distinction and prejudice,
existing in the opinion and feelings of the community, would not be
as effectually fostered by compelling colored and white children
to associate together in the same schools, may well be doubted; at
all events, it is a fair and proper question for the committee to
consider and decide upon, having in view the best interests of both
classes of children placed under their superintendence....
The Massachusetts court refused to say that the trustees’ decision in
behalf of racially separate schools was capricious or arbitrary; such
a decision was within their realistic prerogatives, and it denied
no child his “civil rights.” The court spoke long before the Civil
War, long before there was a Fourteenth Amendment; but the universal
understanding of the framers of the Fourteenth Amendment was that the
amendment neither created nor secured any “new” rights of citizens of
the United States--it merely defined and secured, for the emancipated
Negro, the civil rights enjoyed by white citizens all along. Serious
students of the subject may wish to confirm this from _II Am. Jur.
Const. Laws_ (Sect. 255, pages 987-97). The Massachusetts opinion
has great weight in establishing, as the formal expression of an
abolitionist Northern State, that “civil rights” did not include any
right to attend racially integrated schools. If this is of merely
academic importance today, the court’s opinion in _Roberts_ v.
_Boston_ is significant in determining what the framers and adopters
of the Fourteenth Amendment in 1866 understood the amendment to mean.
They did not mean that it would afford the Negro citizen any more
identity of access to public facilities than the Massachusetts court
was willing to agree to in 1849.
Now, let us leap ahead. The Fourteenth Amendment was proposed in
1866 and declared ratified in 1868; throughout this period, such
radical abolitionists as Sumner and Seward were crying for a broad
interpretation of the amendment. In Ohio, during the December term
of the State Supreme Court in 1871, a suit came on to be heard
from William Garnes against John W. McCann and other members of
the school board in Franklin County. _This is Ohio._ Its Senators
Wade and Sherman cast their votes in the thirty-ninth Congress in
favor of the amendment. The State court surely was familiar with
their views. Garnes’ complaint was that under State laws of 1853
and 1864 his three children had been denied admission to schools
in nearby Norwich; instead, his children were required to attend a
Negro school in Hilliard. He brought suit, based entirely on the
Fourteenth Amendment, contending that the amendment prohibited Ohio
from adopting any school law that permitted or required segregation.
His was the first direct test of the intention of the framers and
adopters.
The Ohio court (21 Ohio State 198) gave the petitioner’s argument
scant attention. On the theory that Garnes, as a citizen of the
United States, might have been denied certain privileges and
immunities, the court observed briefly that the amendment went only
to “such privileges or immunities as are derived from, or recognized
by, the Constitution of the United States.” Any broader construction
would open a field of limitless conjecture “and might work such
limitations of the power of the States to manage and regulate their
local institutions and affairs _as were never contemplated by the
Amendment_.” [Emphasis added.]
No such construction ever had been intended. The privileges
and immunities of a school system “are derived solely from the
constitution and laws of the State.” If Ohio were to abolish all
public schools, it scarcely could be claimed that a “citizen of the
United States” could compel Ohio to re-establish them. This being
so, Garnes could demand no more than equal protection under the laws
of Ohio. And this had not been denied him. His children were assured
their “equal proportion of the school fund.” (The court’s assertion
on this score is important to establish the point that the doctrine
of “separate but equal” arose at the very outset of litigation on
school segregation.) This was all Garnes was entitled to demand.
“A classification of the youth of the State for school purposes,
upon any basis which does not exclude either class from equal school
advantages, is no infringement of the equal rights of citizens
secured by the constitution of the State.” And the Fourteenth
Amendment, at most, affords colored citizens only an additional
guaranty of rights already secured to them by the State Constitution.
In brief, the plaintiff Garnes could not validly complain that the
privileges of his children were abridged, or that equal protection of
the law had been denied them. “Equality of rights does not involve
the necessity of educating white and colored persons in the same
school, any more than it does that of educating children of both
sexes in the same school.” And the court added:
Any classification which preserves substantially equal school
advantages is not prohibited by either the State or Federal
Constitution, nor would it contravene the provisions of either.
There is, then, no ground upon which the plaintiff can claim that
his rights under the Fourteenth Amendment have been infringed.
This view of the Fourteenth Amendment, stated by the Supreme Court
of Ohio in 1871, was accepted the following year by the United
States Circuit Court for the Southern District of Ohio. In _United
States_ v. _Buntin_ (10 Fed. 730), Circuit Judge Baxter summarized
the _Garnes_ case as a holding that segregation is “within the
constitutional discretion of the legislature, and that the separate
education of the whites and blacks ... is no wrong to either.” Said
the Federal Circuit Court in Ohio: “I concur in and adopt this
decision as a correct exposition of the Constitution.”
The same question twice presented in Ohio cropped up again in 1872
in Nevada. Surely Nevada was no Southern State, nor could the views
of its State Supreme Court have been tainted by any Confederate
conspiracy. Both of Nevada’s Senators, Nye and Stewart, had voted in
1866 in favor of the amendment. But in _Stoutmeyer_ v. _Duffy_ (7
Nev. 342), the State court found nothing whatever in the Fourteenth
Amendment to compel the admission of a seven-year-old Negro boy
to the white schools of Ormsby County. His denial was a violation
of State law, said the court, but not of Federal law. A concurring
justice thought it “utterly untenable” that segregated schools, as
such, should be held a violation of the Fourteenth Amendment.
In January 1874, the same question arose in California. It cannot be
suggested seriously that the Supreme Court of California in _Ward_
v. _Flood_ (48 Calif. 36) was then acting in some joint conspiracy
with the invidious Alabamans. Young Mary Frances Ward demanded
admission to the white Broadway Grammar School in San Francisco;
Principal Noah F. Flood, acting under State law, declined. Was his
action a violation of the Fourteenth Amendment? Plainly not, said
the California court. In the mere fact that the races are separated
in the public schools “there is certainly to be found no violation
of the constitutional rights of the one race more than of the other,
and we see none of either, for each, though separated from the other,
is to be educated upon equal terms with that other, and both at the
common public expense.”
Eleven months later, in November 1874, the same question came up in
Indiana. Who would regard Indiana as a Southern State? The case was
_Cory_ v. _Carter_ (48 Ind. 327). Here a Negro resident of Lawrence
township in Marion County demanded admission of his grandchildren
to the nearest local schools. An act of Indiana in May 1869, nearly
a year after ratification of the Fourteenth Amendment, required
their education at nearby Negro schools. Was the State act, as the
petitioner complained, in violation of the new amendment to the
Constitution? Not at all, said the Supreme Court of Indiana. The new
Fourteenth Amendment was not intended to prohibit to the State the
power of operating separate schools for white and Negro children.
This was a question of “domestic policy,” to be settled by State law:
In other words, the placing of the white children of the State in
one class and the Negro children of the State in another class
and requiring these classes to be taught separately, provision
being made for their education in the same branches, with capable
teachers, and to the extent of their pro rata share in the school
revenue, does not amount to a denial of equal privileges to either,
or conflict with the open character of the system required by the
Constitution. The system would be equally open to all. The tuition
would be free. The privileges of the schools would be denied to
none. The white children go to one school, or to certain of the
schools in the system of common schools. The colored children go to
another school, or to certain others of the schools in the system
of common schools.... If there be cause of complaint, the white
class has as much, if not greater cause than the colored class, for
the latter class receive their full share of the school revenue,
although none of it may have been contributed by such class....
And in a telling section of its opinion, the Indiana court went
on to make the point that Congress itself had fixed the spirit
and meaning of the Fourteenth Amendment by adopting legislation
requiring racially segregated schools in the District of Columbia.
The court called attention to the dates of such legislation: July
23, 1866; July 28, 1866; March 3, 1873. These acts of Congress were
contemporaneous with adoption of the Fourteenth Amendment. It seemed
to the Indiana court unthinkable that the Congress should have fixed
some standard for the States less than that required of the central
government, and surely Congress itself, having framed the amendment,
knew what was intended by the amendment: “This legislation of
Congress continues in force ... as a legislative construction of the
Fourteenth Amendment, and as a legislative declaration of what was
thought to be lawful, proper, and expedient under such amendment, by
the same body that proposed such amendment to the States for their
approval and ratification.”
Now, to maintain the chronology, consider one case from a Southern
State: _Arnold Bertonneau_ v. _Board of Directors of_ [New Orleans]
_City Schools_ (3 Woods 177, 3 Fed. Cases 294, Case No. 1,361). This
was decided by a Federal Circuit Court of Appeals in November 1878.
The Fourteenth Amendment was then ten years old. The question,
brought by the Negro father of two boys, seven and nine years old,
was whether under the Fourteenth Amendment they were entitled
to admission to a white school three blocks from their home on
Rampart Street. A Negro school was also conveniently available. The
Reconstruction Constitution of Louisiana then carried the provision,
earlier quoted, that no separate schools should be established for
any race under State law. But the Federal court had no concern for
the State Constitution. Its sole concern was with the United States
Constitution, and Circuit Judge William B. Woods found no violation
of it in the schools of the Vieux Carré. Woods, incidentally, was an
Ohioan; he had been a general in the Union Army; in 1880 he was to be
named by Hayes to the U.S. Supreme Court. Here he said:
Both races are treated precisely alike. White children and colored
children are compelled to attend different schools. That is all....
Any classification which preserves substantially equal school
advantage does not impair any rights, and is not prohibited by
the Constitution of the United States. Equality of right does not
necessarily imply identity of right.
One of the most frequently quoted court cases of this period arose in
New York in 1883 (_People, ex. rel. King_ v. _Gallagher_, 93 N. Y.
438). It involved a mandamus petition brought by a twelve-year-old
Negro girl in Brooklyn to compel a local school principal, Gallagher,
to admit her to his school despite a State law of 1864 permitting
Brooklyn to maintain racially separate schools. Her suit was based
squarely upon the Fourteenth Amendment. The Court of Appeals of New
York wrote a long and serious opinion in dismissing her petition
as groundless. The history of the amendment, said the court, “is
familiar to all.” (The statement bears special emphasis: One of
New York’s Senators at the time of the court’s opinion was Roscoe
Conkling, a leading lawyer and abolitionist who had been tendered
the office of Chief Justice. New York’s two Senators at the time
the amendment was submitted in 1866, Harris and Morgan, both had
supported the resolution. When the court said the history of the
Fourteenth was “familiar to all,” it doubtless had in mind the
opinions and interpretations of the State’s own Senators.) In the
view of the court, the object of the amendment was to secure for the
Negro people civil rights equal to those enjoyed by white persons.
But the Negroes were not to have any greater or more extensive
civil rights than others. As citizens of the United States, their
“privileges and immunities” were to be identically protected. As
citizens of the individual States, they were to have whatever equal
State rights might be defined in those States--and the privilege
of receiving an education at the expense of the State, being
created and conferred solely by the law of the State and subject to
its discretionary regulation, was a privilege plainly within the
regulation of the State. So far as “privileges and immunities” were
concerned, the plaintiff had nothing to complain about. But the court
went on to add some thoughtful comments on the general subject of
equal protection, and these merit a careful reading.
But we are of the opinion that our decision can also be sustained
upon another ground, and one which will be equally satisfactory
as affording a practical solution of the questions involved. It
is believed that this provision will be given its full scope and
effect when it is so construed as to secure to all citizens,
wherever domiciled, equal protection under the laws and the
enjoyment of those privileges which belong, as of right, to each
individual citizen. This right, as affected by the questions in
this case in its fullest sense, is the privilege of obtaining an
education under the same advantages and with equal facilities for
its acquisition with those enjoyed by any other individual. It is
not believed that these provisions were intended to regulate or
interfere with the social standing or privileges of the citizen, or
to have any other effect than to give to all, without respect to
color, age or sex, the same legal rights and the uniform protection
of the same laws.
In the nature of things there must be many social distinctions
and privileges remaining unregulated by law and left within the
control of the individual citizens, as being beyond the reach of
the legislative functions of government to organize or control.
The attempt to enforce social intimacy and intercourse between the
races, by legal enactments, would probably tend only to embitter
them, and produce an evil instead of a good result. [Citing
_Roberts_ v. _City of Boston_.]
As to whether such intercourse shall ever occur must eventually
depend upon the operation of natural laws and the merits of
individuals, and can exist and be enjoyed only by the voluntary
consent of the persons between whom such relations may arise, but
this end can neither be accomplished nor promoted by laws which
conflict with the general sentiment of the community upon whom
they are designed to operate. When the government, therefore,
has secured to each of its citizens equal rights before the law
and equal opportunities for improvement and progress, it has
accomplished the end for which it is organized and performed all of
the functions respecting social advantages with which it is endowed.
The New York court went on to analyze the “startling results”
that would follow from the assertion that racial separation was
intended to be prohibited by the Fourteenth Amendment. The same
line of argument would prohibit classifications by sex or age, and
surely this was not intended. No. Plainly, said the court, the
Brooklyn school authorities had the power, “in the best interests
of education, to cause different races and nationalities, whose
requirements are manifestly different, to be educated in separate
places.” The court added:
We cannot see why the establishment of separate institutions
for the education and benefit of different races should be held
any more to imply the inferiority of one race than that of the
other, and no ground for such an implication exists in the act of
discrimination itself. If it could be shown that the accommodations
afforded to one race were inferior to those enjoyed by another,
some advance might be made in the argument, but until that is
established, no basis is laid for a claim that the privileges of
the respective races are not equal....
A natural distinction exists between those races which was not
created, neither can it be abrogated, by law, and legislation which
recognizes this distinction and provides for the peculiar wants or
conditions of the particular race can in no just sense be called
a discrimination against such race or an abridgment of its civil
rights. The implication that the Congress of 1866, and the New York
State legislature of the same year, sitting during the very throes
of our civil war, who were respectively the authors of legislation
providing for the separate education of the two races, were thereby
guilty of unfriendly discrimination against the colored race, will
be received with surprise by most people and with conviction by
none....
And the New York court went on to make the same point earlier made in
Indiana, that “the highest authority for the interpretation of this
amendment is afforded by the action of those sessions of Congress
which not only immediately preceded, but were also contemporaneous
with, the adoption of the amendment in question.” If Congress could
establish schools exclusively for Negroes, as it repeatedly had
done, no good reason could be suggested why a greater restriction
should apply to the States. “If regard be had to that established
rule for the construction of statutes and constitutional enactments
which require courts, in giving them effect, to regard the intent of
the law-making power, it is difficult to see why the considerations
suggested are not controlling upon the question under discussion.”
That was New York speaking, only fifteen years after ratification of
the amendment, in 1883. Did _King_ v. _Gallagher_ say nothing at all,
in 1954, to the Supreme Court of the United States? Was this opinion
not directly responsive to the court’s question of whether the States
understood or contemplated that the Fourteenth Amendment was intended
to prohibit separate schools?
To complete the record of school decisions directly in point, prior
to the Supreme Court’s opinion of 1896 in _Plessy_ v. _Ferguson_,
one final case should be mentioned. This was _Lehew_ v. _Brummell_
(15 S.W. 765), decided by the Supreme Court of Missouri in March
1891. Both the Missouri Constitution and a State act of 1887 then
required racially separate schools. Five Negro children of Grundy
County attacked the requirement as violative of both the “privileges
and immunities” and “equal protection” provisions of the Fourteenth
Amendment. The Missouri court rejected both contentions. “The right
of children to attend the public schools, and of parents to send
their children to them, is not a privilege or immunity belonging
to a citizen of the United States as such. It is a right created
by the State, and a right belonging to citizens of the State as
such.” On the second point, separation of pupils by race was not an
unreasonable or arbitrary classification, for
color carries with it natural race peculiarities, which furnish
the reason for the classification. There are differences in races,
and between individuals of the same race, not created by human
laws, some of which can never be eradicated. These differences
create different social relations, recognized by all well-ordered
governments. If we cast aside chimerical theories and look to
practical results, it seems to us it must be conceded that separate
schools for colored children is a regulation to their great
advantage.... The fact that the two races are separated for the
purpose of receiving instruction deprives neither of any rights. It
is a reasonable regulation of the exercise of the right.
Mention of the _Lehew_ case in Missouri brings this chronology
of judicial pronouncements on racially separate schools to the
Supreme Court’s famous statement in _Plessy_. With that landmark in
sight, the citizen seeking to learn what the framers intended the
Fourteenth Amendment to accomplish should pause to read two other
monumental Supreme Court opinions--the _Slaughter-House Cases_ of
1873 (16 Wallace 36) and the _Civil Rights Cases_ of 1883 (109 U.
S. 3). They do not deal directly with a State’s power to operate
racially separate public schools, but they do speak eloquently of the
whole meaning of the Reconstruction amendments as that meaning was
understood by those closest to it.
In the _Slaughter-House Cases_, the court dealt with an act of
Louisiana creating a single company to have exclusive responsibility
for meat-processing in New Orleans. The law was intended to promote
health and sanitation (or so the State insisted), but local butchers
attacked it as an invasion of their rights under the Fourteenth
Amendment. The Supreme Court would not agree. No right to be a
butcher in Louisiana inured to a “citizen of the United States” prior
to adoption of the Amendment, and the amendment gave him none. Such
rights, privileges, and immunities remained within the jurisdiction
of the States after 1868, as surely as they had rested with the
States before 1868. In terms of the basic structure of the Union,
the War of 1861-65 had changed nothing. The Fourteenth Amendment,
though it laid certain prohibitions upon the States and vested in
the Congress power to enforce those prohibitions by appropriate
legislation, never had been intended “to bring within the power of
Congress the entire domain of civil rights heretofore belonging
exclusively to the States.” Any such interpretation would radically
change “the whole theory of the relations of the State and Federal
governments to each other, and of both these governments to the
people.” No such results, said the court, “_were intended by the
Congress which proposed these amendments, nor by the legislatures
which ratified them._” The Fourteenth Amendment had then been in
effect only five years. Every member of the court was familiar with
the circumstances surrounding its submission and ratification.
On March 1, 1875, Congress enacted a truly sweeping Civil Rights
Act. The first section asserted, affirmatively, that “all persons
within the jurisdiction of the United States shall be entitled to
the full and equal enjoyment of ... inns, public conveyances on
land or water, theatres, and other like places of amusement.” Five
cases testing the law came together before the Supreme Court for
decision in October 1883. Harlan alone dissented from an opinion of
the court declaring that the act went beyond the boundaries of the
power vested in the Congress by the fifth section of the Fourteenth
Amendment. What was this power? In the view of the majority, it
boiled down simply to this--a power to enforce. To enforce what? To
enforce the prohibitions laid upon the States--that is, to adopt
“corrective legislation such as may be necessary and proper for
counteracting such laws as the States may adopt or enforce and which,
_by the amendment_, they are prohibited from making or enforcing.”
[Emphasis added.] The Civil Rights Act did not vest in the Congress
any power to adopt general legislation dealing with the rights of
the citizens, or to establish any code of municipal law. Any such
assumption, said the court, “is certainly unsound.” The intention of
the Fourteenth Amendment was to prohibit the States from denying to
any person “those fundamental rights which are the essence of civil
freedom, namely, the right to make and enforce contracts, to sue,
be parties, give evidence, and to inherit, purchase, lease, sell,
and convey property.” Whenever a State attempted by its own action
to deny a Negro such rights as these, a State would be in violation
of the Constitution; but until a State transgressed upon some right
_secured by the amendment_, a State could do as it wished. Was a
right to attend an integrated public school such a right? The _Civil
Rights Cases_ do not suggest it for a moment. On the contrary, the
construction placed upon the Fourteenth Amendment by the court
suggests precisely the opposite.
Whatever doubts might have been lingering in any quarter were put
at rest by the Supreme Court’s opinion of May 1896 in _Plessy_ v.
_Ferguson_. The Fourteenth Amendment had been in operation nearly
twenty-eight years. Plessy, one-eighth Negro, challenged a Louisiana
State law requiring separate facilities for whites and Negroes on
railway lines; his principal contention was that he was thereby
denied equal protection of the laws. With only Harlan dissenting
(Brewer did not participate), the Supreme Court expounded in clear
and simple terms the “understanding” and “contemplation” of the
Fourteenth Amendment:
The object of the amendment 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 a commingling of the two races upon terms
unsatisfactory to either. Laws permitting, and even requiring,
their separation in places where they are liable to be brought into
contact do not necessarily imply the inferiority of either race to
the other, and have generally, if not universally, been recognized
as within the competency of the State legislatures in the exercise
of their police power. _The most common instance of this is
connected with the establishment of separate schools for white and
colored children, which has been held to be a valid exercise of
the legislative power even by courts of States where the political
rights of the colored race have been longest and most earnestly
enforced._ [Emphasis supplied.]
What was the primary question the United States Supreme Court asked
in the _Brown_ case in June 1953? This was the question: Whether the
Congress that submitted the Fourteenth Amendment, and the States
that ratified it, understood or contemplated that the amendment was
intended to abolish segregation in public schools.
We have seen that the Congress surely did not understand or
contemplate this: The Congress itself provided for racially
separate schools in the District of Columbia. Over a long period of
years following adoption of the amendment, States both North and
South continued to operate separate schools, without protest or
interference of any sort from Congress.
Just as plainly, the States that ratified the amendment did not
understand or contemplate that it was intended to abolish segregation
in schools: One after another, they provided for racially separate
schools in the same breath with which they ratified the amendment.
And if one seeks in the judicial pronouncements of the day for
independent evidence of what the Congress and the States understood
and contemplated the amendment to mean the evidence is overwhelming:
The power of the States to maintain separate schools was “generally,
if not universally” held to be completely in accord with the
Fourteenth Amendment. The seven justices who united in _Plessy_ were
all mature men at the time the amendment became effective in 1868.
Edward D. White of Louisiana, the youngest, was then twenty-three,
Brown of Michigan was thirty-two, Fuller of Illinois thirty-five,
Field of California fifty-two, Gray of Massachusetts forty, Shiras
of Pennsylvania, thirty-six, and Peckham of New York thirty. From
a standpoint of constitutional law, who could have known the
understanding and contemplation of the amendment better than they?
They grew up with it. And in 1896, when they handed down the Plessy
opinion, they were men of fifty-one to eighty, in a position to look
back maturely upon twenty-eight years of political life under the
Fourteenth Amendment.
The other two questions of a general nature posed by the Supreme
Court in June 1953 may be dealt with more briefly. Much of the ground
has been covered already. These were:
_Question 2: If neither the Congress in submitting nor the States
in ratifying the Fourteenth Amendment understood that compliance
with it would require the immediate abolition of segregation in
public schools, was it nevertheless the understanding of the
framers of the amendment_
_(a) that future Congresses might, in the exercise of their power
under Section 5 of the amendment, abolish such segregation, or_
_(b) that it would be within the judicial power, in the light of
future conditions, to construe the amendment as abolishing such
segregation of its own force?_
_Question 3: On the assumption that the answers to Questions 2 (a)
and (b) do not dispose of the issue, is it within the judicial
power, in construing the amendment, to abolish segregation in
public schools?_
Question 2 (a) may best be answered by studying the Fourteenth
Amendment in terms of political power. What is the Fourteenth?
Obviously, it is first of all a prohibition upon the States. It
is not primarily a grant of power to the Congress. Its thrust is
negative: The States shall not make; the States shall not enforce;
the States shall not abridge; the States shall not deprive; the
States shall not deny. Section 3 carries an incidental delegation
of power to the Congress, authorizing the removal of political
disabilities imposed upon Confederate soldiers, and Section 5 vests
in the Congress a power “to enforce, by appropriate legislation, the
provisions of this article.”
Would an act of Congress prohibiting the States from maintaining
racially separate schools be “appropriate legislation, enforcing
the provisions of this article”? The framers of the Fourteenth
Amendment did not think so. They did not regard the right to attend a
particular school as a “civil right.” Well after the amendment became
operative, Sumner and other abolitionist leaders in the Congress
several times introduced legislation having this end; twice they got
such a bill through the Senate (1872 and 1874), on tie votes broken
by the Vice-President, but they were never able to get a bill through
the House. And in the Civil Rights Act of 1875, an effort to prohibit
racially separate schools was defeated decisively.
The power vested in Congress in the fifth section is no general grant
of power. It is limited to legislation appropriate to enforcing the
provisions “of this article.” And until it can be shown that one of
the provisions “of this article” was intended to prohibit to the
States the power to maintain racially separate schools, it cannot be
shown that Congress appropriately could enact legislation having that
end.
No provision of the Fourteenth Amendment imposes such a prohibition
on the States. Therefore, no act of the Congress validly could seek
to enforce such a prohibition.
And surely it is all the more evident, to get at Questions 2 (b)
and 3, that nothing in the Fourteenth Amendment, or in any other
provision of the Constitution or act of Congress, ever was intended
to give the Supreme Court the power to abolish segregation in public
schools by its own fiat. If the power to accomplish this end rested
in Federal authority at all, it rested in the hands of the Congress.
The court might decide whether an act of the Congress prohibiting
such schools in the States were “appropriate legislation” to enforce
provisions of the Fourteenth Amendment, but the court has no
legislative authority of any sort. As the court itself said in the
_Slaughter-House Cases_, the amendment was not intended to make the
court “a perpetual censor upon all legislation of the States, on the
civil rights of their own citizens, with authority to nullify such as
it did not approve as consistent with those rights as they existed at
the time of the adoption of this amendment.”
Question 3, it will be noticed, goes beyond Question 2 (b). In
Question 2 (b), the court was still concerned with the intention of
the framers of the Fourteenth Amendment: Did the framers understand
in 1866 that some day the court, in the light of future conditions,
could construe the amendment to abolish school segregation of its own
force? But in Question 3, the framers are abandoned: Is it within
the judicial power _today_, the court inquired, without regard to
history, for the court itself to abolish school segregation by
placing a new construction on the amendment?
In the brief they filed in response to the court’s inquiries,
attorneys for the Southern States said this:
Certainly judicial power exists if the only question be whether
this court is empowered to make an enforceable decision. But to
interpret the Fourteenth Amendment as authority for the judicial
abolition of school segregation would be an invasion of the
legislative power and an exact reversal of the intent of the
framers of the amendment.
Yes, the court has power. Hughes’ cynical remark contains grim
truth: Judges are restrained only by the Constitution, and the
Constitution is what the judges say it is. But if the ethical
tradition of our society teaches us one thing (wholly apart from
the judicial tradition), it is that might and right ought always to
be carefully distinguished. And on no nine men in the world does
this responsibility rest more heavily than on the nine members of
the court. Defense counsel in the school cases quoted Mr. Justice
Cardozo: “Judges have, of course, the power, though not the right,
to ignore the mandate of a statute, and render judgment in despite
of it. They have the power, though not the right, to travel beyond
the walls of the interstices, the bounds set to judicial innovation
by precedent and custom. None the less, by that abuse of power, they
violate the law.”