Part II The Law

I think the proper course is to recognize that a State legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.

—Oliver Wendell Holmes.

I

On May 17, 1954, the Supreme Court of the United States handed down its unanimous decision in the School Segregation Cases. By general agreement, this decision is regarded as the court’s most momentous opinion of this century; indeed, only the court’s opinion of 1856 in the Dred Scott case is thought to have had greater impact upon the American people or upon the course of historic events. Because of its destructive effect upon the stability of law and the permanence of long-established institutions, the school decision, in my own view, surpassed Scott v. Sanford in the area of jurisprudence gone mad. In one stroke, the Warren court violated those precepts of judicial restraint and constitutional interpretation which it most frequently has insisted on in the past; it transformed itself into a super-legislature—more, it usurped the functions of constitutional amendment that lie with not fewer than three-fourths of the States. Abandoning law, the court wedded sociology; discarding eighty years of unbroken precedent, members of the court substituted their own notions of psychology and moral fitness for the plain and palpable meaning of the Fourteenth Amendment in terms of racially separate public schools. And having prohibited unto the States the exercise of a power the States had been exercising with judicial approval since 1868, the court capped its day’s work by decreeing an end to segregation in schools of the District of Columbia. This latter stroke was achieved by judicial coup de main that left even the court’s best friends embarrassed; what happened, Ralph Catterall has remarked, is that the court declared “unthinkable” that which had been universally thought for 166 years.

This is the indictment the South brings against the Warren court for Brown v. Board of Education and the subsequent judicial progeny of that May afternoon. In one sense, it doubtless is futile to reargue Brown; as the court defiantly indicated by its unprecedented action in signing every judge’s name in 1958 to Cooper v. Aaron, the principles it boldly put forward in 1954 are not to be reconsidered so long as the court’s present members may live. But it is important, nonetheless, that the South’s protest be understood and regularly renewed, lest it be supposed that with the passage of time the court’s action has been condoned and forgiven.

The South’s position rests upon a foundation of law, history, and constitutional construction as old as the Union itself. Ours is the ancient doctrine of State powers—not of State rights, but of State powers. This principle is the élan vital of the American Republic; it takes in the whole body of governmental and philosophical principles by which American greatness has been achieved. The doctrine embraces that delicate balance in State and Federal relations which keeps the whole watchworks moving; it depends for its success upon the right of the States to be wrong—to be foolish, to be unwise, to be out of step, to do “those acts and things which independent States may of right do,” simply because they are States. And unless this delicate balance is preserved, and the rightful powers of the States guarded from continued encroachment, the whole organism of American government will be subtly transformed, without the expressed consent of the people governed, from the federalism that has provided its greatest strength to an immoderate centralism that will prove its greatest weakness. In maintaining its case, the South is no longer fighting the question of separate schools or even a question of race relations at all; it is contending, rather, for the preservation of an American plan of value to all the States and all the people. What is lost to the Southern States, in terms of political powers, is lost to all States; and the imposition of court-ordered prohibitions in one field makes the next imposition that much easier. By the court’s decree of 1954, the South’s largest, most expensive, most important, most cherished public institutions—our public schools—were thrown into potential jeopardy and chaos. Whose most cherished institutions will be next?

II

The South’s legal position in the school controversy is essentially a constitutional position; it cannot be fully understood without some understanding of how the Southerner views the Constitution. He views it through the eyes of the States. These are to him, as Oliver Wolcott of Connecticut called them, “the pillars which uphold the general system.”

Most readers of this essay, it may be assumed, have a good working knowledge of the Constitution. Some will not; they may never have read the Constitution, line by line and word by word; they know its provisions vaguely, not explicitly, and the trail that led from the creation of States to the formation of a Union is as remote to them as a path through the Pleiades. Hence this hornbook review. And if Jefferson’s Declaration of Independence seems irrelevant to the South’s position in Brown v. Board of Education, it is only because too much emphasis has been put on the Declaration’s first few lines and not enough on its last.

Perhaps in the divine plan, all men are indeed “created equal.” Here on earth they patently are not. Jefferson’s opening hyperbole was never meant to be taken literally. But he did mean for the closing lines to be taken, at international law, for precisely what they were—a declaration that the colonies once tied to Britain, were now free and independent States—

and that as Free and Independent States, they have full power to levy War, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do.

In that moving Declaration, nothing was said of the birth of a “nation.” In truth, nothing was said of a “nation” in the Articles of Confederation, or in the Constitution that succeeded the Articles. The Declaration was the act of “one People,” but the political aim in the decade that followed the Declaration of 1776 was to form a more perfect Union—a union of separate, sovereign States, acting jointly for some purposes, but acting individually for others. And the political genius of the founding architects who designed this structure is the very genius so widely disdained by the busy planners and amateur carpenters of our own time.

What did the Declaration assert the function of government to be? Why is it that governments are instituted among men? The answer, in Jefferson’s phrase, is that governments are instituted among men to secure rights—not to grant rights, which a free people have to begin with, but only to secure rights. And where does government derive its powers in this regard? It derives its just powers “from the Consent of the Governed,” and from no other source. How is this consent manifested? The answer lies in the whole of the republican process, which in the United States is a process exercised entirely through the actions of the people in their States.

The colonists who cast off the yoke of Great Britain did not propose to take on a fresh yoke of their own contriving in its place. The sum of their charges against the Crown was that George III had sought to establish “an absolute tyranny over these States.” He had “erected a multitude of New Offices and sent hither Swarms of Officers to harass our People and eat out their Substance.” In the formation of a new and independent government, the founding fathers were determined to minimize the opportunities for new tyranny to come into power. And toward that end, they were determined that the powers of government should be fragmented, and partitioned off, and kept securely under leash. They feared excessive “bigness” for the best of all reasons, that excessive bigness ought always to be feared when the liberties of a people are at stake. They sought to provide a check here, a balance there, a string of unequivocal prohibitions somewhere else. They insisted always upon a reservation to the people themselves of powers ungranted. These were the prudent goals the greatest political minds of our country sought to achieve.

Their first handiwork, the Articles of Confederation, is too much denounced and too little read. “This despised government,” said Patrick Henry, defending the Confederation, “merits, in my opinion, the highest encomium: It carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses; and shall a government which has been thus strong and vigorous be accused of imbecility and abandoned for want of energy?” It is popularly supposed that when the delegates assembled at Philadelphia in 1787, they tossed the whole of the Articles unceremoniously aside, and set out from scratch to compose a Constitution. They did nothing of the sort. The revisions they made were fundamental, of course, but the principles of political power under which the United States live today are in essence the principles embodied in the Articles of Confederation.

Here in the Articles are to be found many of the phrases, and indeed, many of the specific provisions, that endure in the Constitution. The genesis of the Tenth Amendment appears as the first substantive clause in the compact: “Each State retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

Article III bound the States in a firm league of friendship “for their common defense, the security of their Liberties, and their mutual and general welfare”; the phrases were to reappear in the preamble to the Constitution of 1787. Article IV guaranteed to the inhabitants of each State “all privileges and immunities of free citizens in the several States,” a guarantee carried over to Article IV, Section 2. The extradition of fugitives from one State to another, the rule of “full faith and credit” among the States, the immunity of Congressmen, and the flat prohibition upon the granting of titles of nobility all stem from the Articles. It often is forgotten, but the States laid upon themselves in the Articles of Confederation many of the prohibitions they were to accept a few years later in the Constitution: No States were to enter into any compact without the consent of Congress; no States were to keep troops or ships of war in time of peace without the consent of Congress “unless such State be actually invaded by enemies, or ... the danger is so imminent as not to admit of delay,” a provision echoed to this day, almost exactly, in Article I, Section 10. The powers vested in the Congress under the Articles of Confederation also have a familiar ring—to coin money, fix standards of weights and measures, regulate trade, establish post offices, borrow money, build and equip a navy, and appropriate funds “for defraying the public expenses.”

But the Articles of Confederation, for all the thoughtful provisions they provided as progenitors of the Constitution, had serious and admitted defects as well. If there was to be something more than a “firm league of friendship” among sovereign States, a government had to be created capable of acting upon individuals as such. The most devoted friend of “States’ rights” willingly concedes that the “more perfect Union” provided for in the Constitution of 1787 created a nation, even if the Constitution described it only as a “Union,” or as “the land.” Obviously, the supremacy clause in Article VI was something new, not in degree, but in kind: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”

That clause alone, coupled with Article III and with John Marshall’s effective establishment of the principle of judicial review, created the “one out of many” that is the American Republic. Yet the objective student of public affairs who would understand the South’s classic and traditional position in advocacy of States’ rights should devote some thoughtful attention to certain aspects of the Constitution that have remained unchanged from the very beginning of the Union, surviving civil war and the growth of nearly two centuries—aspects that remain unchanged to this day.

At the risk of being tedious, it is necessary to examine the Constitution as it is, and not as centralizers might wish it to be. This is our organic law, the basis of our public institutions; the spirit that lives and breathes in it is the American spirit, and the great beams and foundation stones of this written compact support the whole structure of our government. The few paragraphs that follow may seem elementary. They are, in fact, essential to an appreciation of what was wrong with Brown v. Board of Education in 1954.

The preamble itself offers the first source of misunderstanding. It begins, of course, “We the people of the United States,” and for 175 years superficial students of the Constitution have been crying triumphantly that the opening three words prove the existence of some national democracy: “We, the people.” The demonstrable facts prove no such thing. On Monday, August 6, 1787, the Philadelphia convention received its first full draft of a Constitution. The preamble submitted by South Carolina’s John Rutledge on that day read as follows: “We the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.” The preamble in this form was adopted the following day without dissent, and indeed without debate. It was not until September 10, when the weary delegates were ready to have the final document whipped into form by a committee on style, that the presumptuousness of the draft preamble became apparent. James Wilson of Pennsylvania made the point that it would be “worse than folly to rely on the concurrence of Rhode Island.” The State of New York, he observed, “has not been represented for a long time past in the Convention.” North Carolina’s agreement was most uncertain. Many individuals from other States had spoken against the plan. And though Wilson was here addressing himself to a specific proposal that the draft Constitution be submitted first to the Congress, rather than directly to the States, his remarks made obvious good sense to members of the committee on style. They prudently recast the preamble to omit all mention of specific States—how could they know which nine would bind themselves by ratification?—and the preamble emerged as we know it. The point is that there was not the slightest doubt in the minds of the delegates at Philadelphia, or in the minds of the State conventions thereafter, that “We the people” meant, as Madison said, “We the people of the States as thirteen sovereignties.”

The first eight words of Article I are important: “All legislative powers herein granted shall be vested....” We are dealing, at the outset, as the careful choice of a noun makes clear, with powers, and with a specific kind of power: legislative power. These powers are “granted herein,” which is to say, granted by the ratifying States in the Constitution itself, and in no other place; and these powers are to be “vested” (a most judicious verb) in the Congress.

In Section 2 of Article I, the first of more than ninety references to “the States” appears: The House of Representatives is to be composed of members chosen every second year “by the people of the several States.” No congressional district ever may extend across a State line, for “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” Moreover, every Representative must be “an inhabitant of that State in which he shall be chosen.” Then follows the enumeration of the States to whom the Constitution would be submitted, if they wished to enter the Union: The State of New Hampshire shall be entitled to choose three members of the House, Massachusetts eight, and so forth.

Section 3 deals with composition of the Senate. A preposition is important here: To become a Senator, a man must be an inhabitant of that State for which he shall be chosen. From the beginning, the concept has been that Representatives represent people, or groups of people, or districts of people; Senators speak for the larger, mystical entity of the States themselves.

Section 4 re-emphasizes the status and function of the States, even as it lays down the first of the limitations upon State power voluntarily accepted by the ratifying members of the Union: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof: But the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators.”

In Section 5, the first of many limitations upon the central government appears: Each house of the Congress must keep a journal of its proceedings, and at the desire of one-fifth of the members present, must record the individual yeas and nays. Close study of the Constitution will disclose many such restrictive provisions, for the Constitution is in many respects a negative instrument; almost every delegation of power is followed at once by a snatching back, or by a qualification, or by a jealous and suspicious prohibition. The Constitution abounds in reservations, in neithers, noes, and buts.

Section 8 defines the powers of the Congress, and characteristically limits these powers even as it grants them: The Congress may lay and collect taxes, “But all duties ... shall be uniform throughout the United States”; the Congress may raise and support armies, “but no appropriation of money to that use shall be for a longer term than two years”; the Congress may provide for organizing and arming the militia, “reserving to the States respectively the appointment of the officers”; the Congress shall exercise exclusive power over the seat of the national government, but its purchase of other places is dependent upon “the consent of the legislature of the State in which the same shall be.”

In Section 9, one of the clauses appears that the Supreme Court was to forget in 1954—a provision specifically recognizing and sanctioning the institution of slavery as a custom in no way violative of the Fifth Amendment’s guarantee that no person may be deprived of his liberty without due process of law. No friend of the court yet has been able to explain exactly how a constitutional provision that did not prohibit slavery could be interpreted to prohibit racially separate but equal public schools in the District of Columbia. No matter. The more significant provisions of Section 9 go to the nine flat prohibitions therein placed upon the Congress. Here the States laid down the law to the joint government they were creating: The Congress could not (1) interfere with the importation of slaves prior to 1808; (2) suspend the privilege of the writ of habeas corpus; (3) pass a bill of attainder or (4) an ex post facto law; (5) impose a direct tax except in proportion to the census; (6) place a tax or duty on articles exported from any State; (7) give preference in any regulation of commerce or revenue to the ports of one State over those of another; (8) draw money from the Treasury except as a consequence of appropriations made by law, or (9) grant titles of nobility.

Section 10 follows with fourteen prohibitions the States agreed to 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: