The Southern Case for School Segregation

by James Jackson Kilpatrick

IV

The Supreme Court of the United States then was headed by Fred M. Vinson of Kentucky, as Chief Justice. Others who heard the ten hours of argument that December were Hugo L. Black of Alabama, Felix Frankfurter of Massachusetts, William O. Douglas of Connecticut, Robert H. Jackson of New York, Harold H. Burton of Ohio, Tom C. Clark of Texas, Sherman Minton of Indiana, and Stanley Reed of Kentucky.

It is difficult—impossible might be a better word—to guess at the outcome of a Supreme Court case by attempting to read the minds of the judges through the questions asked from the bench. Here, however, it seemed unusually clear that the court was seriously divided. Burton indicated the course that ultimately was to be taken. During argument on the Topeka case, he put a question to Paul E. Wilson, assistant attorney general of Kansas: “Don’t you recognize it as possible that in seventy-five years the social and economic conditions of the Nation have changed so that which might have been a valid interpretation of the Fourteenth Amendment seventy-five years ago would not be valid today?” Wilson replied that he recognized the possibility, but did not believe the record disclosed such a change. Evidently recalling some of Judge Parker’s language in the Clarendon County decision, Burton persisted: “But that might be different from saying that these courts of appeals and State supreme courts have been wrong for seventy-five years?” Wilson agreed, but made the point that until the Supreme Court itself overturned its own precedents, no other guide to the law was available. When John W. Davis arose to argue the South Carolina appeal, Burton put the same question to him. Davis said: “My answer to that is that changed conditions may affect policy, but changed conditions cannot broaden the terminology of the Constitution.” Changes in social or economic conditions, Davis thought, raised “an administrative or political question, not a judicial one.” Burton subsided with a remark that he viewed the Constitution as a living document “that must be interpreted in relation to the facts of the times in which it is interpreted.”

Pointedly stating a conflicting view, Frankfurter interrupted Thurgood Marshall’s argument at one point to recall that the court recently had upheld the power of Louisiana to restrict the calling of river pilots “to the question of who your father was.” The court sustained that legislation, he said, “not because we thought it admirable or because we believed in primogeniture, but because it was so imbedded in the history of that problem in Louisiana that we thought on the whole that was an allowable justification.”

At the conclusion of the argument, attorneys on both sides were hopeful. The Negro forces felt reasonably certain they had Douglas, Black, and Burton; the State attorneys thought they had impressed Jackson, Minton, Frankfurter, and probably Clark. Vinson and Reed were question marks. It was anticipated that a decision would be handed down by a divided court some time in March or April.

Instead, time ran on until June 8, 1953, when the court, unable to reach any decision on which a majority of the court could agree, set the case for reargument on five questions. Two of the questions were technical in nature: Assuming it were decided that segregation in itself violates the Fourteenth Amendment, how should decrees be formulated? How should the cases be handled on remand to the lower courts? The other three questions went to the very heart of American constitutional law.

Question 1: What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?

The Supreme Court posed this first question, in theory at least, for one reason only: Its object was to determine whether the power to operate racially separate schools ever had been prohibited to the States by the Constitution; for if this power had not been prohibited to the States by the Constitution, it was theirs to exercise respectively, for good or ill. (It was conceded that the power never had been prohibited to them by any law of the United States adopted pursuant to the Constitution). Obviously, nothing in the Constitution possibly could prohibit this power to the States except Section 1 of the Fourteenth Amendment. This section imposes three prohibitions on the States: (1) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; (2) nor shall any State deprive any person of life, liberty, or property without due process of law; (3) nor deny to any person within its jurisdiction the equal protection of the laws.

In point of fact, it was only the third of these prohibitions that concerned the court. (A right to attend school in any particular State is not a privilege of a “citizen of the United States,” but of a citizen of the State in question; and only by rather far-fetched reasoning could it be contended that by placing white children in one school and Negro children in another school, a State was depriving any person of life, liberty, or property without due process of law. From the beginning, the plaintiffs’ case rested in an assertion that equal protection had been denied the Negro pupils.) How was the court to be advised if this provision of the Fourteenth Amendment prohibited to the States the power to operate racially separate schools? Only one procedure is known to the law; it is the procedure used by the Supreme Court and by other courts from the very beginning of the Republic: It is to determine the intent of the framers. What did the Congress and the ratifying States mean by the Fourteenth Amendment? In terms of racially separate public schools, what did they intend the amendment to accomplish? What was their understanding? In construing a written Constitution, an inquiry into intent is paramount. Cooley’s Limitations states the rule in this fashion:

A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A Constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written Constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. These beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving construction to a written Constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty.... What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.

Chief Justice Taney made the same point in the Dred Scott case (19 Howard 393). It had been argued (this was in 1857) that public attitudes had changed enormously toward the Negro since the adoption of the Constitution sixty-eight years earlier. But should this shift in public attitude induce the court “to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted”? Taney thought such an argument “altogether inadmissible” in any tribunal called upon to interpret the Constitution:

If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.

Many other authorities, over a span of generations, have said substantially the same thing about the necessity of courts’ holding steadfastly to the demonstrable intention of a constitutional provision. “The ultimate touchstone of constitutionality,” Frankfurter once asserted, “is the Constitution itself and not what we have said about it” (306 U. S. 491). Hughes urged his colleagues not to be swayed by arguments that extraordinary events may justify abandonment of the rule: “Extraordinary conditions do not create or enlarge constitutional power” (245 U. S. 495). Douglas, dissenting in New York v. the United States (326 U. S. 572), sternly lectured his brothers on their obligations in this regard; when a constitutional rule is to be fashioned that undermines the long-understood sovereignty of the States, he said, it ought never to be done by judicial construction: “Any such change should be accomplished only by constitutional amendment.”

This solid principle of constitutional law was in the court’s mind that day in June 1953 when it asked for reargument in the School Segregation Cases. What happened to the principle thereafter is sadly apparent: The court tossed it summarily to one side. But briefly, at least, the court recognized that in constitutional cases, clocks must always be turned back.

The NAACP, on behalf of the Negro plaintiffs, did its dead-level best to come up with some history to support its case. The story of the plaintiffs’ exertions was confessed on December 28, 1961, by Professor Alfred H. Kelly, of Wayne State University in Detroit, in an address before the annual meeting of the American Historical Association in Washington. Excerpts from his address were reprinted in the U. S. News & World Report of February 5, 1962. They provide a fascinating, and a sobering, revelation of what Negrophile zeal can do to an honest man.

“One day in early July, 1953,” Professor Kelly began, “I received a letter from Mr. Thurgood Marshall.”

Marshall wanted Professor Kelly to prepare a research paper that would support the NAACP’s answer to the first question posed by the court. At stake was the venerable “separate but equal” rule, to which Professor Kelly, as a person, was deeply opposed. Marshall explained that the rule was crumbling and about to fall; but if the rule were to be overthrown after all these years, “it would entail a piece of judicial lawmaking which could be justified only by a philosophy of extreme judicial activism—and this at the hands of a Court wherein several expressed their disapproval of judicial activism and lawmaking by Court-made fiat.” But if this revolution in the legal status of the Negro were to be achieved, the attempt had to be made—and Dr. Kelly was ready to help make it. After all, both the lawyers and the scholars at work on the case agreed that the old rule had to be disposed of—but how? Dr. Kelly paraphrased their dilemma:

We would like to dispose of the Plessy rule, for once and for all....

But we are fearfully embarrassed by the apparent historical absurdity of such an interpretation of the Fourteenth Amendment and equally embarrassed by the obvious charge that the Court will be “legislating” if it simply imposes a new meaning on the Amendment without regard to historical intent.

How to escape from this embarrassment? Why, historians must produce for the NAACP a plausible historical argument to justify the court in pronouncing (a) that the intent of the Fourteenth Amendment in this regard was unclear, or (b) that the amendment really had been intended, all along, to abolish school segregation, or at least to sanction its abolition by judicial fiat.

So Dr. Kelly went to work. As a constitutional historian, he acknowledged what the South’s attorneys were to contend, that the Fourteenth Amendment was the direct outgrowth of the Civil Rights Act of 1866. He did what a Southern lawyer or anyone else would do under the circumstances: He went to the Congressional Globe for the first session of the Thirty-ninth Congress of 1866 and read the debates himself. To his intense dismay, he found the Globe “had a good deal to say about school segregation.” And at first blush, “most of what appeared there looked rather decidedly bad....” Indeed, it looked as if John W. Davis, arguing the case for the South Carolina defendants, “would win the historical argument hands down!”

But Dr. Kelly spat on his hands and went to work. In the course of time, by his own candid and tortured admission, “I ceased to function as a historian, and, instead, took up the practice of law without a license.”

The problem we faced was not the historian’s discovery of truth, the whole truth, and nothing but the truth; the problem instead was the formulation of an adequate gloss on the fateful events of 1866 sufficient to convince the Court that we had something of an historical case....

It is not that we were engaged in formulating lies; there was nothing as crude and naive as that. But we were using facts, emphasizing facts, bearing down on facts, sliding off facts, quietly ignoring facts and, above all, interpreting facts in a way to do what Marshall said we had to do—“get by those boys down there.”

Charitably, a curtain may be drawn over the agonizing sessions that Dr. Kelly and his associates, sincerely wedded to a social and legal cause, spent in pacing up and down a suite in the NAACP’s headquarters on West 40th Street in New York, dictating and arguing and glossing over, “hammering out a strategy” that would contain some essential measure of historical truth, but yet ... but yet....

They produced a 235-page brief. It must stand as a pathetic monument to what happens when historians cease to be historians and take up the unlicensed practice of law. The conclusions there drawn, that the “proponents of absolute equalitarianism emerged victorious in the Civil War and controlled the Congress that wrote the Fourteenth Amendment,” are a bitter travesty upon the actual course of events. For it is plain to any objective student—to any man who will stand still long enough to ask and receive an answer to the elementary question, What happened?—that no such thing occurred. The visible, palpable, unrelenting, unavoidable truth is that Sumner and Stevens and their fellow radicals did not control the Congress in 1866; they did not get what they wanted in the Fourteenth Amendment; they got half a loaf at most: And the proof of the pudding may be found where it always lies, in what happened after the amendment was adopted.

The answer to the court’s first question is perfectly clear: Of course the Congress that submitted the Fourteenth Amendment, and the States that ratified it, did not contemplate or understand that the amendment prohibited to the States the power to maintain segregation in the public schools. If they had contemplated or understood this, they would have abolished such segregation where it existed and shunned it in the schools thereafter. In the simple, homely, undeniable fact that such segregation was not abolished but rather was widely continued lies a complete answer to the court’s question. It should have been a complete answer to the whole case.

Evidence to support this view may be adduced overwhelmingly from three principal sources: (1) Actions of the Congress itself; (2) actions of the State legislatures and constitutional conventions; and (3) decisions of State and Federal courts in the period immediately following adoption of the amendment.

1. Actions of the Congress itself. The Thirteenth Amendment to the Constitution, prohibiting slavery within the United States, or in any place subject to their jurisdiction, was proposed by the Congress on January 31, 1865, two months before Lee’s surrender at Appomattox was to end the War for Southern Independence. Northern States promptly set the ratification process in motion, and with a cessation of hostilities in April, Southern States came along. During the first week of December 1865, barely ten months after the Thirteenth Amendment had been proposed, the assents of Alabama, North Carolina, and Georgia brought the number of ratifications to twenty-seven—three-fourths of the thirty-six States regarded as then “in the Union” for constitutional purposes. On December 18, 1865, Secretary Seward declared the Thirteenth Amendment a part of the Constitution.

The Southern States that had been counted as never having left the Union, for purposes of ratifying the Thirteenth Amendment, soon discovered that for other purposes they were still out of the Union. They were denied what the Constitution promises every State—representation in the Congress by at least one member of the House and two members of the Senate—and they were permitted no hand in framing the second Reconstruction amendment that was to be submitted the following year. This task became the responsibility of a joint committee of six Senators and nine Congressmen, created in December at the request of Thaddeus Stevens.

During January and February 1866, while the committee was at work in executive sessions, the House and Senate completed action on the First Supplemental Freedmen’s Bureau Bill. The act is important in tracing the meaning of the Fourteenth Amendment, for it explicitly defined the principal civil rights and immunities that were to be under constant discussion in the Congress for the next several months. This law guaranteed to the newly freed Negroes in the Southern States “the right to make and enforce contracts, to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold and convey real and personal property; and to have full and equal benefit of all laws and proceedings for the security of person and estate.”

The Freedmen’s Bill applied, by its own terms, only to the late Confederacy. Simultaneously, a legislative effort was launched to secure these same civil rights in the country as a whole. On February 2, after bitter debate on its constitutionality, what was to become the Civil Rights Act of 1866 passed the Senate. It went to the House, and in early March was favorably reported by the Judiciary Committee. During floor debate on March 13, Congressman Wilson of Iowa, chairman of the committee in charge of the bill, addressed himself to the bill’s opening provision, declaring that “there shall be no discrimination in the civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery.” This part of the bill, Wilson said, “will probably excite more opposition than any other.” He undertook to allay apprehensions:

What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed.... Nor do they mean that ... their children shall attend the same schools. These are not civil rights or immunities. [Emphasis added.]

The Civil Rights Bill passed the House by 111-38 on March 13; it was vetoed on March 27, and passed over the veto on April 9.

These dates are important. Late in February 1866, the Stevens Committee had brought into the House one draft of a proposed Fourteenth Amendment. It had been debated, and then sent back for more work. On April 21, a new draft came before the committee. On April 25, amendments were approved in committee that put the amendment in the form in which it finally was to become part of the Constitution. These changes wrote into Section 1 new prohibitions upon the powers of the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

When the proposed constitutional amendment reached the floor of the House on May 8, both its friends and its foes reached remarkable agreement on the amendment’s primary purpose: to nail into the Constitution the Civil Rights Act of 1866 that on April 9 had been passed over the President’s veto. Stevens reminded his radical colleagues that a mere law always was subject to repeal by a majority of the House and Senate: “And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed.” An opponent of the resolution, Rogers of New Jersey, said the Stevens measure “is no more than an attempt to embody in the Constitution of the United States that outrageous and miserable civil rights bill....”

On the Senate side, when the resolution came there for debate on May 23, the same view was taken. Howard of Michigan, in charge of the paper, said the object was “to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power.” Davis of Kentucky and Henderson of Missouri agreed. On June 8, the Senate voted in favor of the resolution, 33-11, with five Senators not voting; and on June 13 the House, which then had 184 members, completed action by concurring in the Senate amendments, 120-32, with 32 not voting. The House margin was four votes short of the two-thirds required under the Constitution for submitting an amendment, but the resolution was declared to be passed anyhow.

While all this was going on, other matters of course were coming before the Congress. One such matter was a bill passed in the Senate on May 21, providing for segregated schools in the District of Columbia. A companion bill, introduced in April, adopted in May, made effective in July, appropriated funds to the Negroes’ segregated schools. And year after year, from that time on until 1954, the Congress continued to provide for racially separate schools in the District of Columbia.

Not one iota of evidence can be adduced from the annals of Congress in 1866 to show that any responsible member of the House or Senate believed the Fourteenth Amendment in any fashion would affect the operation of segregated schools in the States. All that Negro counsel could produce in their reargument on the point in 1953, despite the desperate labors of Dr. Kelly and his associates, were some generalities, some sweeping statements of ideals, and other nebulous expressions on the part of radical abolitionists on the one hand and apprehensive States’ Righters on the other. It is plain that the Stevens-Sumner group won from the Thirty-ninth Congress two compromise instruments, a statute and a constitutional amendment, both intended to guarantee to the Negro the essential civil rights spelled out in the Freedmen’s Bill and in the Civil Rights Act—to sue and be sued, to own and inherit property, and the like. “The right to go to school,” as Senator Trumbull of Pennsylvania was to say in 1872 in debating the General Amnesty Act, “is not a civil right and never was.”

2. Actions of the State legislatures and constitutional conventions. The proposed Fourteenth Amendment to the Constitution went out to the States on June 18, 1866. Connecticut ratified on June 30, New Hampshire on July 6, Tennessee on July 19. New Jersey and Oregon, both of whom later were to rescind their actions, ratified in September. Then came a jolt: On October 27, Texas flatly rejected the proposed amendment, by a vote of 70 to 5 in the House and 27 to 1 in the Texas Senate. Vermont ratified on October 30, but on November 1 Georgia rejected by 147-2 and 38-0 in its House and Senate. Then, in rapid succession, Arkansas, Florida, North Carolina, and South Carolina spurned the amendment. In January 1867, Virginia, Mississippi, Kentucky, and Maryland rejected. Early in February, Delaware and Louisiana turned it down also.

On March 2, 1867, an infuriated Congress enacted over Johnson’s veto a law that seems incredible by any standpoint of constitutional law. This “Act to Provide for the More Efficient Government of the Rebel States” further defined the districts that had been created in the former Confederacy by earlier Reconstruction acts. Section 5 of the Act fixed two requirements for readmission of the Southern States to full standing in the Union. The first condition was that each of the States adopt a new State Constitution; the second was that, at the first legislature to be held after adoption of the new Constitution, each State must ratify the Fourteenth Amendment. Delegates to the State constitutional conventions were to be chosen by all male citizens regardless of race, except felons and those who had participated in the “rebellion.” No Confederate veteran who earlier had been a member of a State legislature, or held any other office under the government of a Southern State, could become a candidate for the new legislatures to be elected.

With that vindictive and extortionate act, military government settled upon the South and all semblance of free republican government vanished. With no alternative but to submit or remain under the sword, the Southern States accepted the amendment. Arkansas ratified in April 1868, Florida on June 9, North Carolina, South Carolina, Alabama, and Louisiana in July. Meanwhile, Ohio on January 13, 1868, had undertaken to rescind its ratification of the amendment, and New Jersey, on March 25, had done the same thing. In both States, recently the bitter foes of the South, the new amendment was denounced as unconstitutionally approved in the House of Representatives and unconstitutionally demanded of the Southern States. (It was several months later, in October 1868, that Oregon also attempted to rescind its ratification.)

On July 20, 1868, Secretary Seward issued a cautious proclamation certifying that the Fourteenth Amendment had been ratified. There were, he surmised, thirty-seven States then “in the Union.” Twenty-eight, by Seward’s count, had approved the amendment, but he was doubtful about the whole affair. Among his twenty-eight were Arkansas, Florida, North Carolina, Louisiana, and South Carolina, where ratification had been sanctioned by “newly constituted and newly established bodies avowing themselves to be acting as the legislatures” of these States. If their resolutions were valid, and if the original ratifications of Ohio and New Jersey were still valid, notwithstanding their subsequent withdrawals, the amendment was a part of the Constitution.

On the following day, July 21, Congress passed a joint resolution to resolve Seward’s doubts. It ordered him to declare the amendment unconditionally adopted; and on July 28, adding the names of Alabama and Georgia, whose notifications had just been received, Seward declared the Fourteenth officially a part of the Constitution.

Was the Fourteenth Amendment thus legally and constitutionally added to the Constitution in 1868? It is exceedingly doubtful. Neither a resolution of the Congress nor a proclamation of a Secretary of State can supersede the Constitution itself. If the States of Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana were “in the Union” in 1865, when their ratifications of the Thirteenth Amendment were counted among the three-fourths necessary to adoption, it is impossible to understand how they legally could have been read out of the Union by the act of March 2, 1867, put under military dictatorship, and ordered to ratify the Fourteenth Amendment under duress. If the Confederate States are eliminated from the equation altogether, a mathematical case can be made to support ratification. Twenty-five States were represented in the Thirty-ninth Congress that proposed the Fourteenth Amendment in 1866. Nebraska was admitted to the Union March 1, 1867. Three-fourths of twenty-six States (for ratification purposes) is twenty States. By the time of the proclamations and resolutions of July 1868, twenty-one States outside the South had unconditionally ratified the amendment. But the assumption on which the Congress proceeded was that there were thirty-seven States in the Union in the summer of 1868. Three-fourths of thirty-seven States (for ratification purposes) is twenty-eight States. In order to count twenty-eight States, the ratifications of the rescinding New Jersey and Ohio must be added to those of Arkansas, Florida, North Carolina, Louisiana, and South Carolina; or, in place of New Jersey and Ohio, the ratifications of Alabama and Georgia may be substituted. In any event, reliance must be placed upon the coerced ratifications of either five or seven Southern States which at that time were denied a republican government, denied representation in the Congress, and denied the right to act freely upon the proposed amendment. This is the tainted parenthood of the constitutional provision on which the Supreme Court of the United States, in the school cases, sought to be informed.

I digress. The question here is, “What evidence is there that the ... State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?”

This is the evidence:

Among the States that ratified the Fourteenth Amendment were these twelve: Connecticut, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, Oregon, Rhode Island, Vermont, and Wisconsin. There is not a scrap of evidence to suggest that the issue of school segregation ever was considered in any of them. Rhode Island, Connecticut, and Michigan were the only States in this group with as much as 2 per cent Negro population in 1870 (Rhode Island had 5000 Negroes out of 217,000; Connecticut had 9668 Negroes in a population of 537,000; Michigan a Negro population of 11,849 in a total of 1,184,000.) The rest ranged down to the 346 Negroes then resident in Oregon and the 789 then resident in Nebraska. School segregation simply was no problem in these States in 1866. The question never was discussed.

Two other States that ratified the Fourteenth Amendment were Florida and Louisiana. Both houses of Florida’s legislature, when they were in a position to act freely, rejected the amendment unanimously. This was in December 1866. The following March came the Reconstruction Act, and in the course of time came a State constitutional convention set up by military decree. It was comprised of eighteen Negroes and twenty-seven Carpetbaggers and Scalawags. On June 9, 1868, the Governor of Florida dispatched to a similarly chosen legislature a message recommending “that no action be taken save that dictated by the acts of Congress as conditions precedent to admission, to wit: The passage of the proposed amendment to the Constitution, known as the Fourteenth Article....” The Florida legislature submissively ratified the amendment, 23-6 in the House, 10-3 in the Senate. Public schools were set up, with no statutory or constitutional provision to prevent their joint use by both races; but the evidence is persuasive that no integration ever occurred in this period, and in 1885, when an end to Reconstruction permitted Florida to follow the separate-but-equal pattern which by then had been solidly established elsewhere, the Florida Constitution was amended to provide that “white and colored children shall not be taught in the same school, but impartial provision shall be made for both.” Certainly Florida did not understand that the amendment, of and by itself, prohibited the States from requiring racial separation in the schools.

The situation in Louisiana was more chaotic still. The Louisiana legislature unanimously rejected the amendment in February 1867. Reconstruction followed. A constitutional convention was created, composed of forty-nine Negroes and forty-nine Carpetbaggers and Scalawags; it wrote a provision into the Louisiana Constitution that “all children ... shall be admitted to the public schools in common, without distinction of race, color, or previous condition. There shall be no separate schools or institutions of learning established exclusively for any race by the State of Louisiana.” But this language in a coerced State Constitution was ignored by the people. In 1870, the Superintendent of Public Instruction was to complain that the constitutional provision “excites a determined opposition on the part of many who would otherwise cooperate in the opening of schools and in the raising of funds for their support.” As the years passed, Louisiana established a system of racially separate public schools, in accordance with the demonstrable understanding of the Fourteenth Amendment elsewhere in the Union, and a freely chosen constitutional convention in 1898 made segregation mandatory.

Florida and Louisiana have been here singled out, because the confused record in the two States offers the best opportunity—indeed, the only opportunity—for a case to be made that any of the States ever understood or contemplated that the Fourteenth Amendment might in any fashion serve to prohibit the operation of racially separate schools. If evidence cannot be adduced here, it cannot be adduced anywhere. And this poor, scanty record of actions taken under duress—and later repudiated under freedom—is the best that hard-laboring historians can produce.

What of the other States? In twenty-three other States, positive evidence is available that neither the State conventions nor the State legislatures at any time ever understood or contemplated that the Fourteenth Amendment prohibited them from establishing racially separate schools.

Look at the record, first in terms of States outside the South:

California took no action on the Fourteenth Amendment, but it established racially separate schools by statute in 1870, two years after the amendment had been ratified.

Delaware refused to ratify the amendment, and made no provision for Negro education of any sort until 1881. Then separate Negro schools were established, and Delaware’s constitution of 1897 made segregation mandatory. How can it be contended that Delaware understood the Fourteenth Amendment to prohibit separate schools?

Illinois refused to admit Negroes to any schools at the time of its ratification of the Fourteenth Amendment. It was not until five years later that a general school law admitted them to educational facilities—some segregated, others integrated. Segregated schools persisted at least until 1884, when the Supreme Court of Illinois acknowledged the operation of segregated institutions, and ruled them in violation of a State law that had been passed in the interim. But no court or legislature in Illinois ever asserted that such schools were in violation of the Fourteenth Amendment.

Indiana ratified the Fourteenth Amendment in June 1867, following a message from Governor Morton specifically advocating “the establishment of separate schools,” because “I could not recommend that white and colored children be placed together in the same schools.” And it was not until 1949—eighty-one years after adoption of the Fourteenth Amendment—that Indiana formally abandoned segregation in its schools.

New Jersey was another Northern State in which racially separate schools were continued long after adoption of the Fourteenth Amendment. It was not until 1881 that the legislature prohibited their operation, but when this statute was construed three years later, no mention of any sort was made of the Fourteenth Amendment.

New York. What of New York? The State ratified the Fourteenth in January 1867, and later the same year convened a constitutional convention at which a ringing declaration was adopted in favor of civil rights—but there was not a word in this declaration in support of racially integrated schools. On the contrary, separate schools were specifically permitted in New York until 1900—thirty-two years after the Fourteenth Amendment became part of the Constitution. Can it be seriously contended that New York understood or contemplated that the amendment in and of itself would abolish school segregation?

To bring these Northern examples to an end, consider Ohio, Pennsylvania, and West Virginia. Ohio had racially separate schools at the time it ratified in 1867; such schools specifically were continued by a statute of 1874, and the system was not discarded by State law until 1887. Pennsylvania also had a system of segregated schools at the time of its ratification in 1867; the legislature continued the system by statute in 1869; the system was not abolished until 1881. West Virginia’s legislature ratified the Fourteenth on January 16, 1867. On February 27, precisely six weeks later, the same legislature adopted a statute providing that “white and colored persons shall not be taught in the same schools.” What is one to say of West Virginia’s understanding of the meaning of the Fourteenth Amendment?

Action of the Southern States was entirely in accord with the understanding thus demonstrated by their recent enemies in the North. To summarize these briefly:

Alabama ratified under coercion on July 13, 1868; but less than a month later, on August 11, 1868, the same legislature—even though it was dominated by Negroes and Carpetbaggers—enacted a law prohibiting mixed schools “unless it be by the unanimous consent of the parents and guardians of such children.”

Arkansas ratified on April 6, 1868. The same military legislature on July 23, 1868, passed a statute directing the State Board of Education to “make the necessary provisions for establishing separate schools for white and colored children.”

Georgia ratified twice, once in 1868 and again in 1870. The latter legislature still was under Reconstruction rule; a majority of both houses were Republicans. But even this legislature, immediately after its renewed ratification of 1870, adopted a school act providing that “the children of the white and colored races shall not be taught together in any sub-district of the State.”

Kentucky, not subject to military reconstruction, rejected the Fourteenth in January 1867. The same legislature provided for racially separate schools, and the State’s constitution of 1891 required them.

Mississippi’s legislature, dominated by Republicans and Negroes, ratified the Amendment in 1870 and simultaneously provided for a public school system. It was a segregated system, though the law did not require this specifically. Segregation was made mandatory in the schools in 1878.

North Carolina ratified in July 1868. The following winter saw enactment of a statute directing local school authorities to establish “separate schools for the instruction of children and youth of each race.”

South Carolina’s Reconstruction constitutional convention (seventy-six Negroes, forty-eight Carpetbaggers) directed the forthcoming State legislature to establish a public school system free to all children “without regard to race or color,” but the Reconstruction legislature (only twenty-two of its 155 members could read or write) paid no attention to the provision. The Governor was a brevet brigadier general from Maine, Robert K. Scott. In his Inaugural Address he told the assembled illiterate Negroes and white legislators quite frankly that he deemed racial separation in the schools “of the greatest importance to all classes of our people.” Listen to what this Union Governor of South Carolina said, on the very day after the South Carolina legislature had ratified the Fourteenth Amendment:

While the moralist and philanthropist cheerfully recognizes the fact that “God hath made of one blood all nations of men” yet the statesman in legislating for a political society that embraces two distinct, and in some measure, antagonistic races, in the great body of its electors, must, as far as the law of equal rights will permit, take cognizance of existing prejudices among both. In school districts, where the white children may be preponderate in numbers, the colored children may be oppressed, or partially excluded from the schools, while the same result may accrue to the whites, in those districts where colored children are in the majority, unless they shall be separated by law as herein recommended. [Emphasis supplied.]

South Carolina’s legislature adopted Governor Scott’s recommendation. A Massachusetts Negro became State Superintendent of Public Instruction; and he presided over the establishment of a system of segregated schools.

A reconstructed legislature in Texas ratified the Fourteenth Amendment in February 1870. The same legislature provided for public schools to be operated by trustees who “may make any separation of the students or schools necessary to insure success.” Segregated schools were made mandatory in Texas by the Constitution of 1876.

Finally, Virginia. The Old Dominion’s first legislature under the Reconstruction Constitution of 1869 ratified the Fourteenth and Fifteenth Amendments to the Federal Constitution, and then adjourned until the State’s representatives were readmitted to Congress. Then the same legislature reconvened and promptly enacted a statute providing for a system of free schools under a requirement that “white and colored persons shall not be taught in the same schools, but in separate schools.”

What does all this add up to? Simply this: There were thirty-seven States whose “understandings” and “contemplations” of the Fourteenth Amendment at the time of its ratification must be sought. In fourteen of these States (twelve non-Southern States plus Florida and Louisiana), no substantial evidence can be adduced one way or another. In twenty-three of these States (fourteen non-Southern States and nine Southern States), positive evidence exists to show that ratification of the Fourteenth Amendment was never thought to prohibit the operation of racially separate schools. The very legislative bodies that ratified the amendment simultaneously provided for separate schools. In not a single one of the thirty-seven States is there any substantial evidence—or even any flimsy evidence—to show affirmatively that the legislatures that considered the Fourteenth Amendment believed, understood, or contemplated that the amendment in and of itself, would prohibit school segregation.

3. Decisions of State and Federal courts in the period immediately following adoption of the amendment. Confronting this overwhelming evidence, counsel for the Negro plaintiffs desperately attempted to establish what might be called a conspiracy theory, so far as the Southern States were concerned: These States, it was suggested, knew all along that the Fourteenth Amendment was intended to prohibit them from maintaining separate schools, but they conspired to deceive the rest of the nation until they were formally readmitted to the Union and Reconstruction had ended. This theory does not justify even the contempt with which defense counsel brushed it aside. The plain and visible fact is that racially separate schools were everywhere recognized and accepted as fully in compliance with the new constitutional provisions. It is not necessary to seek evidence of this recognition in Southern States alone, nor to rely upon the interpretation that “politicians” may have put upon the amendment here and there. Let us turn from Congress and the State legislatures, and see what the courts said about the meaning of the Fourteenth Amendment in the years immediately following its ratification in 1868.

The clock should be turned back first to 1849, nineteen years before the ratification of the amendment, when Sarah C. Roberts, a five-year-old Negro girl, brought suit against the City of Boston (59 Mass. 198) in the Supreme Judicial Court of Massachusetts. Boston then had two primary schools exclusively for Negroes, one on Belknap Street, in the Eighth School District, the other on Sun Court Street, in the Second. Negroes made up one sixty-second of Boston’s population, but among this one sixty-second was Sarah Roberts, a resident of the Sixth District on Andover Street. She wanted to attend the white school nearest her. Charles Sumner and R. Morris, Jr., brought suit in her behalf, contending as many others were to contend in subsequent years that Sarah had a right to attend her neighborhood school, and that Boston had no right to make classification by race. The suit came on to be heard before Chief Justice Lemuel Shaw and others. This, to repeat, was many years prior to the Fourteenth Amendment, but the question put to the court was to be the question argued many times thereafter: What are the “privileges” of the individual citizens? Where do the powers of the state end in terms of a racial classification for schoolchildren? This is Boston, 1849:

The great principle, advanced by the learned and eloquent advocate of the plaintiff, is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on the laws adapted to their respective relations and conditions.

Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises, whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

The Massachusetts court faced the issue squarely, and concluded that separate schools did no violence to any civil right or privilege held by the colored children. The court’s inquiry was directed toward a single point: Was this a reasonable classification? Had the school trustees abused their responsibility? After great deliberation, the trustees had concluded that the good of both white and colored children would be promoted by separate primary schools. Said the court: “We can perceive no ground to doubt that this is the honest result of their experience and judgment.” It was urged that such separation tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. Said the Massachusetts court:

This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence....

The Massachusetts court refused to say that the trustees’ decision in behalf of racially separate schools was capricious or arbitrary; such a decision was within their realistic prerogatives, and it denied no child his “civil rights.” The court spoke long before the Civil War, long before there was a Fourteenth Amendment; but the universal understanding of the framers of the Fourteenth Amendment was that the amendment neither created nor secured any “new” rights of citizens of the United States—it merely defined and secured, for the emancipated Negro, the civil rights enjoyed by white citizens all along. Serious students of the subject may wish to confirm this from II Am. Jur. Const. Laws (Sect. 255, pages 987-97). The Massachusetts opinion has great weight in establishing, as the formal expression of an abolitionist Northern State, that “civil rights” did not include any right to attend racially integrated schools. If this is of merely academic importance today, the court’s opinion in Roberts v. Boston is significant in determining what the framers and adopters of the Fourteenth Amendment in 1866 understood the amendment to mean. They did not mean that it would afford the Negro citizen any more identity of access to public facilities than the Massachusetts court was willing to agree to in 1849.

Now, let us leap ahead. The Fourteenth Amendment was proposed in 1866 and declared ratified in 1868; throughout this period, such radical abolitionists as Sumner and Seward were crying for a broad interpretation of the amendment. In Ohio, during the December term of the State Supreme Court in 1871, a suit came on to be heard from William Garnes against John W. McCann and other members of the school board in Franklin County. This is Ohio. Its Senators Wade and Sherman cast their votes in the thirty-ninth Congress in favor of the amendment. The State court surely was familiar with their views. Garnes’ complaint was that under State laws of 1853 and 1864 his three children had been denied admission to schools in nearby Norwich; instead, his children were required to attend a Negro school in Hilliard. He brought suit, based entirely on the Fourteenth Amendment, contending that the amendment prohibited Ohio from adopting any school law that permitted or required segregation. His was the first direct test of the intention of the framers and adopters.

The Ohio court (21 Ohio State 198) gave the petitioner’s argument scant attention. On the theory that Garnes, as a citizen of the United States, might have been denied certain privileges and immunities, the court observed briefly that the amendment went only to “such privileges or immunities as are derived from, or recognized by, the Constitution of the United States.” Any broader construction would open a field of limitless conjecture “and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the Amendment.” [Emphasis added.]

No such construction ever had been intended. The privileges and immunities of a school system “are derived solely from the constitution and laws of the State.” If Ohio were to abolish all public schools, it scarcely could be claimed that a “citizen of the United States” could compel Ohio to re-establish them. This being so, Garnes could demand no more than equal protection under the laws of Ohio. And this had not been denied him. His children were assured their “equal proportion of the school fund.” (The court’s assertion on this score is important to establish the point that the doctrine of “separate but equal” arose at the very outset of litigation on school segregation.) This was all Garnes was entitled to demand. “A classification of the youth of the State for school purposes, upon any basis which does not exclude either class from equal school advantages, is no infringement of the equal rights of citizens secured by the constitution of the State.” And the Fourteenth Amendment, at most, affords colored citizens only an additional guaranty of rights already secured to them by the State Constitution.

In brief, the plaintiff Garnes could not validly complain that the privileges of his children were abridged, or that equal protection of the law had been denied them. “Equality of rights does not involve the necessity of educating white and colored persons in the same school, any more than it does that of educating children of both sexes in the same school.” And the court added:

Any classification which preserves substantially equal school advantages is not prohibited by either the State or Federal Constitution, nor would it contravene the provisions of either. There is, then, no ground upon which the plaintiff can claim that his rights under the Fourteenth Amendment have been infringed.

This view of the Fourteenth Amendment, stated by the Supreme Court of Ohio in 1871, was accepted the following year by the United States Circuit Court for the Southern District of Ohio. In United States v. Buntin (10 Fed. 730), Circuit Judge Baxter summarized the Garnes case as a holding that segregation is “within the constitutional discretion of the legislature, and that the separate education of the whites and blacks ... is no wrong to either.” Said the Federal Circuit Court in Ohio: “I concur in and adopt this decision as a correct exposition of the Constitution.”

The same question twice presented in Ohio cropped up again in 1872 in Nevada. Surely Nevada was no Southern State, nor could the views of its State Supreme Court have been tainted by any Confederate conspiracy. Both of Nevada’s Senators, Nye and Stewart, had voted in 1866 in favor of the amendment. But in Stoutmeyer v. Duffy (7 Nev. 342), the State court found nothing whatever in the Fourteenth Amendment to compel the admission of a seven-year-old Negro boy to the white schools of Ormsby County. His denial was a violation of State law, said the court, but not of Federal law. A concurring justice thought it “utterly untenable” that segregated schools, as such, should be held a violation of the Fourteenth Amendment.

In January 1874, the same question arose in California. It cannot be suggested seriously that the Supreme Court of California in Ward v. Flood (48 Calif. 36) was then acting in some joint conspiracy with the invidious Alabamans. Young Mary Frances Ward demanded admission to the white Broadway Grammar School in San Francisco; Principal Noah F. Flood, acting under State law, declined. Was his action a violation of the Fourteenth Amendment? Plainly not, said the California court. In the mere fact that the races are separated in the public schools “there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense.”

Eleven months later, in November 1874, the same question came up in Indiana. Who would regard Indiana as a Southern State? The case was Cory v. Carter (48 Ind. 327). Here a Negro resident of Lawrence township in Marion County demanded admission of his grandchildren to the nearest local schools. An act of Indiana in May 1869, nearly a year after ratification of the Fourteenth Amendment, required their education at nearby Negro schools. Was the State act, as the petitioner complained, in violation of the new amendment to the Constitution? Not at all, said the Supreme Court of Indiana. The new Fourteenth Amendment was not intended to prohibit to the State the power of operating separate schools for white and Negro children. This was a question of “domestic policy,” to be settled by State law:

In other words, the placing of the white children of the State in one class and the Negro children of the State in another class and requiring these classes to be taught separately, provision being made for their education in the same branches, with capable teachers, and to the extent of their pro rata share in the school revenue, does not amount to a denial of equal privileges to either, or conflict with the open character of the system required by the Constitution. The system would be equally open to all. The tuition would be free. The privileges of the schools would be denied to none. The white children go to one school, or to certain of the schools in the system of common schools. The colored children go to another school, or to certain others of the schools in the system of common schools.... If there be cause of complaint, the white class has as much, if not greater cause than the colored class, for the latter class receive their full share of the school revenue, although none of it may have been contributed by such class....

And in a telling section of its opinion, the Indiana court went on to make the point that Congress itself had fixed the spirit and meaning of the Fourteenth Amendment by adopting legislation requiring racially segregated schools in the District of Columbia. The court called attention to the dates of such legislation: July 23, 1866; July 28, 1866; March 3, 1873. These acts of Congress were contemporaneous with adoption of the Fourteenth Amendment. It seemed to the Indiana court unthinkable that the Congress should have fixed some standard for the States less than that required of the central government, and surely Congress itself, having framed the amendment, knew what was intended by the amendment: “This legislation of Congress continues in force ... as a legislative construction of the Fourteenth Amendment, and as a legislative declaration of what was thought to be lawful, proper, and expedient under such amendment, by the same body that proposed such amendment to the States for their approval and ratification.”

Now, to maintain the chronology, consider one case from a Southern State: Arnold Bertonneau v. Board of Directors of [New Orleans] City Schools (3 Woods 177, 3 Fed. Cases 294, Case No. 1,361). This was decided by a Federal Circuit Court of Appeals in November 1878. The Fourteenth Amendment was then ten years old. The question, brought by the Negro father of two boys, seven and nine years old, was whether under the Fourteenth Amendment they were entitled to admission to a white school three blocks from their home on Rampart Street. A Negro school was also conveniently available. The Reconstruction Constitution of Louisiana then carried the provision, earlier quoted, that no separate schools should be established for any race under State law. But the Federal court had no concern for the State Constitution. Its sole concern was with the United States Constitution, and Circuit Judge William B. Woods found no violation of it in the schools of the Vieux Carré. Woods, incidentally, was an Ohioan; he had been a general in the Union Army; in 1880 he was to be named by Hayes to the U.S. Supreme Court. Here he said:

Both races are treated precisely alike. White children and colored children are compelled to attend different schools. That is all.... Any classification which preserves substantially equal school advantage does not impair any rights, and is not prohibited by the Constitution of the United States. Equality of right does not necessarily imply identity of right.

One of the most frequently quoted court cases of this period arose in New York in 1883 (People, ex. rel. King v. Gallagher, 93 N. Y. 438). It involved a mandamus petition brought by a twelve-year-old Negro girl in Brooklyn to compel a local school principal, Gallagher, to admit her to his school despite a State law of 1864 permitting Brooklyn to maintain racially separate schools. Her suit was based squarely upon the Fourteenth Amendment. The Court of Appeals of New York wrote a long and serious opinion in dismissing her petition as groundless. The history of the amendment, said the court, “is familiar to all.” (The statement bears special emphasis: One of New York’s Senators at the time of the court’s opinion was Roscoe Conkling, a leading lawyer and abolitionist who had been tendered the office of Chief Justice. New York’s two Senators at the time the amendment was submitted in 1866, Harris and Morgan, both had supported the resolution. When the court said the history of the Fourteenth was “familiar to all,” it doubtless had in mind the opinions and interpretations of the State’s own Senators.) In the view of the court, the object of the amendment was to secure for the Negro people civil rights equal to those enjoyed by white persons. But the Negroes were not to have any greater or more extensive civil rights than others. As citizens of the United States, their “privileges and immunities” were to be identically protected. As citizens of the individual States, they were to have whatever equal State rights might be defined in those States—and the privilege of receiving an education at the expense of the State, being created and conferred solely by the law of the State and subject to its discretionary regulation, was a privilege plainly within the regulation of the State. So far as “privileges and immunities” were concerned, the plaintiff had nothing to complain about. But the court went on to add some thoughtful comments on the general subject of equal protection, and these merit a careful reading.

But we are of the opinion that our decision can also be sustained upon another ground, and one which will be equally satisfactory as affording a practical solution of the questions involved. It is believed that this provision will be given its full scope and effect when it is so construed as to secure to all citizens, wherever domiciled, equal protection under the laws and the enjoyment of those privileges which belong, as of right, to each individual citizen. This right, as affected by the questions in this case in its fullest sense, is the privilege of obtaining an education under the same advantages and with equal facilities for its acquisition with those enjoyed by any other individual. It is not believed that these provisions were intended to regulate or interfere with the social standing or privileges of the citizen, or to have any other effect than to give to all, without respect to color, age or sex, the same legal rights and the uniform protection of the same laws.

In the nature of things there must be many social distinctions and privileges remaining unregulated by law and left within the control of the individual citizens, as being beyond the reach of the legislative functions of government to organize or control. The attempt to enforce social intimacy and intercourse between the races, by legal enactments, would probably tend only to embitter them, and produce an evil instead of a good result. [Citing Roberts v. City of Boston.]

As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such relations may arise, but this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized and performed all of the functions respecting social advantages with which it is endowed.

The New York court went on to analyze the “startling results” that would follow from the assertion that racial separation was intended to be prohibited by the Fourteenth Amendment. The same line of argument would prohibit classifications by sex or age, and surely this was not intended. No. Plainly, said the court, the Brooklyn school authorities had the power, “in the best interests of education, to cause different races and nationalities, whose requirements are manifestly different, to be educated in separate places.” The court added:

We cannot see why the establishment of separate institutions for the education and benefit of different races should be held any more to imply the inferiority of one race than that of the other, and no ground for such an implication exists in the act of discrimination itself. If it could be shown that the accommodations afforded to one race were inferior to those enjoyed by another, some advance might be made in the argument, but until that is established, no basis is laid for a claim that the privileges of the respective races are not equal....

A natural distinction exists between those races which was not created, neither can it be abrogated, by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race or an abridgment of its civil rights. The implication that the Congress of 1866, and the New York State legislature of the same year, sitting during the very throes of our civil war, who were respectively the authors of legislation providing for the separate education of the two races, were thereby guilty of unfriendly discrimination against the colored race, will be received with surprise by most people and with conviction by none....

And the New York court went on to make the same point earlier made in Indiana, that “the highest authority for the interpretation of this amendment is afforded by the action of those sessions of Congress which not only immediately preceded, but were also contemporaneous with, the adoption of the amendment in question.” If Congress could establish schools exclusively for Negroes, as it repeatedly had done, no good reason could be suggested why a greater restriction should apply to the States. “If regard be had to that established rule for the construction of statutes and constitutional enactments which require courts, in giving them effect, to regard the intent of the law-making power, it is difficult to see why the considerations suggested are not controlling upon the question under discussion.”

That was New York speaking, only fifteen years after ratification of the amendment, in 1883. Did King v. Gallagher say nothing at all, in 1954, to the Supreme Court of the United States? Was this opinion not directly responsive to the court’s question of whether the States understood or contemplated that the Fourteenth Amendment was intended to prohibit separate schools?

To complete the record of school decisions directly in point, prior to the Supreme Court’s opinion of 1896 in Plessy v. Ferguson, one final case should be mentioned. This was Lehew v. Brummell (15 S.W. 765), decided by the Supreme Court of Missouri in March 1891. Both the Missouri Constitution and a State act of 1887 then required racially separate schools. Five Negro children of Grundy County attacked the requirement as violative of both the “privileges and immunities” and “equal protection” provisions of the Fourteenth Amendment. The Missouri court rejected both contentions. “The right of children to attend the public schools, and of parents to send their children to them, is not a privilege or immunity belonging to a citizen of the United States as such. It is a right created by the State, and a right belonging to citizens of the State as such.” On the second point, separation of pupils by race was not an unreasonable or arbitrary classification, for

color carries with it natural race peculiarities, which furnish the reason for the classification. There are differences in races, and between individuals of the same race, not created by human laws, some of which can never be eradicated. These differences create different social relations, recognized by all well-ordered governments. If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage.... The fact that the two races are separated for the purpose of receiving instruction deprives neither of any rights. It is a reasonable regulation of the exercise of the right.

Mention of the Lehew case in Missouri brings this chronology of judicial pronouncements on racially separate schools to the Supreme Court’s famous statement in Plessy. With that landmark in sight, the citizen seeking to learn what the framers intended the Fourteenth Amendment to accomplish should pause to read two other monumental Supreme Court opinions—the Slaughter-House Cases of 1873 (16 Wallace 36) and the Civil Rights Cases of 1883 (109 U. S. 3). They do not deal directly with a State’s power to operate racially separate public schools, but they do speak eloquently of the whole meaning of the Reconstruction amendments as that meaning was understood by those closest to it.

In the Slaughter-House Cases, the court dealt with an act of Louisiana creating a single company to have exclusive responsibility for meat-processing in New Orleans. The law was intended to promote health and sanitation (or so the State insisted), but local butchers attacked it as an invasion of their rights under the Fourteenth Amendment. The Supreme Court would not agree. No right to be a butcher in Louisiana inured to a “citizen of the United States” prior to adoption of the Amendment, and the amendment gave him none. Such rights, privileges, and immunities remained within the jurisdiction of the States after 1868, as surely as they had rested with the States before 1868. In terms of the basic structure of the Union, the War of 1861-65 had changed nothing. The Fourteenth Amendment, though it laid certain prohibitions upon the States and vested in the Congress power to enforce those prohibitions by appropriate legislation, never had been intended “to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States.” Any such interpretation would radically change “the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people.” No such results, said the court, “were intended by the Congress which proposed these amendments, nor by the legislatures which ratified them.” The Fourteenth Amendment had then been in effect only five years. Every member of the court was familiar with the circumstances surrounding its submission and ratification.

On March 1, 1875, Congress enacted a truly sweeping Civil Rights Act. The first section asserted, affirmatively, that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other like places of amusement.” Five cases testing the law came together before the Supreme Court for decision in October 1883. Harlan alone dissented from an opinion of the court declaring that the act went beyond the boundaries of the power vested in the Congress by the fifth section of the Fourteenth Amendment. What was this power? In the view of the majority, it boiled down simply to this—a power to enforce. To enforce what? To enforce the prohibitions laid upon the States—that is, to adopt “corrective legislation such as may be necessary and proper for counteracting such laws as the States may adopt or enforce and which, by the amendment, they are prohibited from making or enforcing.” [Emphasis added.] The Civil Rights Act did not vest in the Congress any power to adopt general legislation dealing with the rights of the citizens, or to establish any code of municipal law. Any such assumption, said the court, “is certainly unsound.” The intention of the Fourteenth Amendment was to prohibit the States from denying to any person “those fundamental rights which are the essence of civil freedom, namely, the right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property.” Whenever a State attempted by its own action to deny a Negro such rights as these, a State would be in violation of the Constitution; but until a State transgressed upon some right secured by the amendment, a State could do as it wished. Was a right to attend an integrated public school such a right? The Civil Rights Cases do not suggest it for a moment. On the contrary, the construction placed upon the Fourteenth Amendment by the court suggests precisely the opposite.

Whatever doubts might have been lingering in any quarter were put at rest by the Supreme Court’s opinion of May 1896 in Plessy v. Ferguson. The Fourteenth Amendment had been in operation nearly twenty-eight years. Plessy, one-eighth Negro, challenged a Louisiana State law requiring separate facilities for whites and Negroes on railway lines; his principal contention was that he was thereby denied equal protection of the laws. With only Harlan dissenting (Brewer did not participate), the Supreme Court expounded in clear and simple terms the “understanding” and “contemplation” of the Fourteenth Amendment:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have generally, if not universally, been recognized as within the competency of the State legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. [Emphasis supplied.]

What was the primary question the United States Supreme Court asked in the Brown case in June 1953? This was the question: Whether the Congress that submitted the Fourteenth Amendment, and the States that ratified it, understood or contemplated that the amendment was intended to abolish segregation in public schools.

We have seen that the Congress surely did not understand or contemplate this: The Congress itself provided for racially separate schools in the District of Columbia. Over a long period of years following adoption of the amendment, States both North and South continued to operate separate schools, without protest or interference of any sort from Congress.

Just as plainly, the States that ratified the amendment did not understand or contemplate that it was intended to abolish segregation in schools: One after another, they provided for racially separate schools in the same breath with which they ratified the amendment.

And if one seeks in the judicial pronouncements of the day for independent evidence of what the Congress and the States understood and contemplated the amendment to mean the evidence is overwhelming: The power of the States to maintain separate schools was “generally, if not universally” held to be completely in accord with the Fourteenth Amendment. The seven justices who united in Plessy were all mature men at the time the amendment became effective in 1868. Edward D. White of Louisiana, the youngest, was then twenty-three, Brown of Michigan was thirty-two, Fuller of Illinois thirty-five, Field of California fifty-two, Gray of Massachusetts forty, Shiras of Pennsylvania, thirty-six, and Peckham of New York thirty. From a standpoint of constitutional law, who could have known the understanding and contemplation of the amendment better than they? They grew up with it. And in 1896, when they handed down the Plessy opinion, they were men of fifty-one to eighty, in a position to look back maturely upon twenty-eight years of political life under the Fourteenth Amendment.

The other two questions of a general nature posed by the Supreme Court in June 1953 may be dealt with more briefly. Much of the ground has been covered already. These were:

Question 2: If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the amendment

(a) that future Congresses might, in the exercise of their power under Section 5 of the amendment, abolish such segregation, or

(b) that it would be within the judicial power, in the light of future conditions, to construe the amendment as abolishing such segregation of its own force?

Question 3: On the assumption that the answers to Questions 2 (a) and (b) do not dispose of the issue, is it within the judicial power, in construing the amendment, to abolish segregation in public schools?

Question 2 (a) may best be answered by studying the Fourteenth Amendment in terms of political power. What is the Fourteenth? Obviously, it is first of all a prohibition upon the States. It is not primarily a grant of power to the Congress. Its thrust is negative: The States shall not make; the States shall not enforce; the States shall not abridge; the States shall not deprive; the States shall not deny. Section 3 carries an incidental delegation of power to the Congress, authorizing the removal of political disabilities imposed upon Confederate soldiers, and Section 5 vests in the Congress a power “to enforce, by appropriate legislation, the provisions of this article.”

Would an act of Congress prohibiting the States from maintaining racially separate schools be “appropriate legislation, enforcing the provisions of this article”? The framers of the Fourteenth Amendment did not think so. They did not regard the right to attend a particular school as a “civil right.” Well after the amendment became operative, Sumner and other abolitionist leaders in the Congress several times introduced legislation having this end; twice they got such a bill through the Senate (1872 and 1874), on tie votes broken by the Vice-President, but they were never able to get a bill through the House. And in the Civil Rights Act of 1875, an effort to prohibit racially separate schools was defeated decisively.

The power vested in Congress in the fifth section is no general grant of power. It is limited to legislation appropriate to enforcing the provisions “of this article.” And until it can be shown that one of the provisions “of this article” was intended to prohibit to the States the power to maintain racially separate schools, it cannot be shown that Congress appropriately could enact legislation having that end.

No provision of the Fourteenth Amendment imposes such a prohibition on the States. Therefore, no act of the Congress validly could seek to enforce such a prohibition.

And surely it is all the more evident, to get at Questions 2 (b) and 3, that nothing in the Fourteenth Amendment, or in any other provision of the Constitution or act of Congress, ever was intended to give the Supreme Court the power to abolish segregation in public schools by its own fiat. If the power to accomplish this end rested in Federal authority at all, it rested in the hands of the Congress. The court might decide whether an act of the Congress prohibiting such schools in the States were “appropriate legislation” to enforce provisions of the Fourteenth Amendment, but the court has no legislative authority of any sort. As the court itself said in the Slaughter-House Cases, the amendment was not intended to make the court “a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights as they existed at the time of the adoption of this amendment.”

Question 3, it will be noticed, goes beyond Question 2 (b). In Question 2 (b), the court was still concerned with the intention of the framers of the Fourteenth Amendment: Did the framers understand in 1866 that some day the court, in the light of future conditions, could construe the amendment to abolish school segregation of its own force? But in Question 3, the framers are abandoned: Is it within the judicial power today, the court inquired, without regard to history, for the court itself to abolish school segregation by placing a new construction on the amendment?

In the brief they filed in response to the court’s inquiries, attorneys for the Southern States said this:

Certainly judicial power exists if the only question be whether this court is empowered to make an enforceable decision. But to interpret the Fourteenth Amendment as authority for the judicial abolition of school segregation would be an invasion of the legislative power and an exact reversal of the intent of the framers of the amendment.

Yes, the court has power. Hughes’ cynical remark contains grim truth: Judges are restrained only by the Constitution, and the Constitution is what the judges say it is. But if the ethical tradition of our society teaches us one thing (wholly apart from the judicial tradition), it is that might and right ought always to be carefully distinguished. And on no nine men in the world does this responsibility rest more heavily than on the nine members of the court. Defense counsel in the school cases quoted Mr. Justice Cardozo: “Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by that abuse of power, they violate the law.”

Judges are not supposed to violate the law, to constitute themselves a super-legislature, to plunge beyond the bounds of the Constitution itself. And no body of critics has said this more frequently than the judges themselves.

In the famous case of United States v. Butler, (297 U. S. 1), holding that the Agricultural Adjustment Act of 1935 exceeded the power vested in the Congress to regulate commerce, the Supreme Court divided violently—but both the majority and the minority, in their discussions of judicial power and responsibility, made the same points. “The only power the court has,” said the majority, “if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” Harlan Stone, in the magnificent dissent in which Brandeis and Cardozo joined, expressed the responsibility of the court in this fashion:

The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the courts but to the ballot and to the processes of democratic government.

Did the Supreme Court, in the School Segregation Cases, have the power to abolish segregation by placing its own contemporary construction on the Fourteenth Amendment? By casting aside Stone’s “sense of self-restraint,” and by substituting their own notions of what was right for the plain history of what was constitutional, the judges could assume that naked power. In the end, that was what they did—in violation of precepts they themselves had pronounced eloquently in other cases.

Mr. Justice Black, for example, was solidly on the side of judicial tradition in 1946, in Morgan v. Virginia (328 U. S. 373). The question was whether a Virginia law, requiring separate seats for white and colored passengers on buses, placed an unconstitutional burden on interstate commerce. A majority of the court thought it did, but Black, though he agreed entirely with the result of the majority’s ruling, protested strongly that the power to regulate commerce was a power vested in the Congress and not in the courts. Yet in a series of cases, the court had nullified State laws just as it was nullifying Virginia’s enactment in the Morgan case. “I thought then, and still believe,” said Black, “that in these cases the court was assuming the role of a ‘super-legislature’ in determining matters of governmental policy.” Where was Mr. Justice Black in May 1954?

Mr. Justice Frankfurter has expounded many times upon the obligation upon the court never to exceed its judicial powers. The question in Board of Education v. Barnette (319 U. S. 634), was whether West Virginia could compel its public school children to salute the flag. Five times, the Supreme Court had held that such a requirement was not in violation of the Constitution. Now, in 1943, with the shift of two justices, the holding was reversed. Frankfurter’s eloquent dissent provides a moving statement of the philosophy by which judges should be guided in contemplating their judicial power:

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.... It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.

Much as he detested the West Virginia statute, Frankfurter found it impossible to deny that reasonable legislators could have passed the flag-salute law. He was guided to this conclusion by “the light of all the circumstances” and by “the history of this question in this court.” Thirteen Justices of the Supreme Court in other years had found such laws within the constitutional authority of the States. In view of this “impressive judicial sanction,” how could the power be now prohibited to the States? In the past, said Frankfurter:

this court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called “the spirit of the Constitution.” Such undefined destructive power was not conferred on this court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution. Equally inadmissible is the claim to strike down legislation because to us as individuals it seems opposed to the “plan and purpose” of the Constitution. That is too tempting a basis for finding in one’s personal views the purposes of the Founders.

The uncontrollable power wielded by this court brings it very close to the most sensitive areas of public affairs. As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantably enter social and political domains wholly outside our concern.

What had become of these views on the part of Mr. Justice Frankfurter in May 1954? By that time, not merely thirteen Justices, but more than thirty members of the court over a period of fifty-eight years had upheld the constitutionality of racially separate schools. More impressive judicial sanction scarcely could be imagined. And what is to be said of an opinion, in a highly sensitive area of public affairs, not even rationalized by “the spirit of the Constitution” or the “plan and purpose” of the Constitution, but rather by “the effect of segregation on public education” and “the extent of psychological knowledge”? These provided the rationale of the Brown decision, but Mr. Justice Frankfurter did not open his mouth in dissent.

Did the court have the power to do what it did? Mr. Justice Douglas, another of the nine, in other days had warned that long-run stability is best achieved when social and economic problems of the State and nation are kept under political management of the people. Writing in 49 Columbia Law Review some years ago, he observed sagely that “it is when a judiciary with life tenure seeks to write its social and economic creed into the Charter that instability is created.” In May 1954, Mr. Justice Douglas did his bit to create just that instability.

Did the court have the power? That was the essence of Question 3. It was the court’s most profound inquiry, for it probed the very soul of judicial limitation and responsibility. Serious consideration of Question 3 would have required of the judges a respect for the wisdom and integrity of scores of judges and hundreds of State and Federal legislators, all equally sworn to uphold the Constitution, who had preceded them. The question should have suggested the utmost restraint, the most selfless exercise of judicial discipline. “Is it within the judicial power, in construing the amendment, to abolish segregation in public schools?”

“What is truth?” said jesting Pilate; and would not stay for an answer.