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.