To my knowledge it has never been seriously argued—the argument certainly was not made by the Supreme Court—that the authors of the Fourteenth Amendment intended to alter the Constitutional scheme with regard to education. Indeed, in the famous school integration decision, Brown v. Board of Education (1954), the Supreme Court justices expressly acknowledged that they were not being guided by the intentions of the amendment’s authors. “In approaching this problem,” Chief Justice Warren said “we cannot turn the clock back to 1868 when the amendment was adopted.... We must consider public education in the light of its full development and in its present place in American life throughout the nation.” In effect, the Court said that what matters is not the ideas of the men who wrote the Constitution, but the Court’s ideas. It was only by engrafting its own views onto the established law of the land that the Court was able to reach the decision it did.
The intentions of the Fourteenth Amendment’s authors are perfectly clear. Consider these facts. 1. During the entire congressional debate on the Fourteenth Amendment it was never once suggested by any proponent of the amendment that it would outlaw segregated schools. 2. At the same time that it approved the Fourteenth Amendment, Congress established schools in Washington in Georgetown “for the sole use of ... colored children.” 3. In all the debates on the amendment by the State Legislatures there was only one legislator, a man in Indiana, who thought the amendment would affect schools. 4. The great majority of the States that approved the amendment permitted or required segregated schools at the very time they approved the amendment. There is not room here for exhaustive treatment of this evidence, but the facts are well documented, and they are all we have to know about the Fourteenth Amendment’s bearing on this problem. The amendment was not intended to, and therefore it did not outlaw racially separate schools. It was not intended to, and therefore it did not, authorize any federal intervention in the field of education.
I am therefore not impressed by the claim that the Supreme Court’s decision on school integration is the law of the land. The Constitution, and the laws “made in pursuance thereof,” are the “supreme law of the land”. The Constitution is what its authors intended it to be and said it was—not what the Supreme Court says it is. If we condone the practice of substituting our own intentions for those of the Constitution’s framers, we reject, in effect, the principle of Constitutional Government: we endorse a rule of men, not of laws.
I have great respect for the Supreme Court as an institution, but I cannot believe that I display that respect by submitting abjectly to abuses of power by the Court, and by condoning its unconstitutional trespass into the legislative sphere of government. The Congress and the States, equally with the Supreme Court, are obliged to interpret and comply with the Constitution according to their own lights. I therefore support all efforts by the States, excluding violence of course, to preserve their rightful powers over education.
As for the Congress, I would hope that the national legislature would help clarify the problem by proposing to the States a Constitutional amendment that would reaffirm the States’ exclusive jurisdiction in the field of education. This amendment would, in my judgment, assert what is already provided unmistakably by the Constitution; but it would put the matter beyond any further question.
It so happens that I am in agreement with the objectives of the Supreme Court as stated in the Brown decision. I believe that it is both wise and just for negro children to attend the same schools as whites, and that to deny them this opportunity carries with it strong implications of inferiority. I am not prepared, however, to impose that judgment of mine on the people of Mississippi or South Carolina, or to tell them what methods should be adopted and what pace should be kept in striving toward that goal. That is their business, not mine. I believe that the problem of race relations, like all social and cultural problems, is best handled by the people directly concerned. Social and cultural change, however desirable, should not be effected by the engines of national power. Let us, through persuasion and education, seek to improve institutions we deem defective. But let us, in doing so, respect the orderly processes of the law. Any other course enthrones tyrants and dooms freedom.
CHAPTER FIVE
Freedom For The Farmer
“... supervision of agriculture and other concerns of a similar nature ... which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as they were nugatory.” Alexander Hamilton in the Federalist Papers, No. 17.
Hamilton was wrong in his prediction as to what men would do, but quite right in foreseeing the consequences of their foolhardiness. Federal intervention in agriculture has, indeed, proved “troublesome.” Disregard of the Constitution in this field has brought about the inevitable loss of personal freedom; and it has created economic chaos. Unmanageable surpluses, an immense tax burden, high consumer prices, vexatious controls—I doubt if the folly of ignoring the principle of limited government has ever been more convincingly demonstrated.
We have blundered on so grand a scale that even our critical faculties seem to have been damaged in the process. No man who is familiar with the subject will deny that the policy of price supports and production controls has been a colossal failure. Yet, today, some of our best minds have no better solution to the problem than to raise the supports and increase the controls!