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?