This is the indictment the South brings against the Warren court for Brown v. Board of Education and the subsequent judicial progeny of that May afternoon. In one sense, it doubtless is futile to reargue Brown; as the court defiantly indicated by its unprecedented action in signing every judge’s name in 1958 to Cooper v. Aaron, the principles it boldly put forward in 1954 are not to be reconsidered so long as the court’s present members may live. But it is important, nonetheless, that the South’s protest be understood and regularly renewed, lest it be supposed that with the passage of time the court’s action has been condoned and forgiven.
The South’s position rests upon a foundation of law, history, and constitutional construction as old as the Union itself. Ours is the ancient doctrine of State powers—not of State rights, but of State powers. This principle is the élan vital of the American Republic; it takes in the whole body of governmental and philosophical principles by which American greatness has been achieved. The doctrine embraces that delicate balance in State and Federal relations which keeps the whole watchworks moving; it depends for its success upon the right of the States to be wrong—to be foolish, to be unwise, to be out of step, to do “those acts and things which independent States may of right do,” simply because they are States. And unless this delicate balance is preserved, and the rightful powers of the States guarded from continued encroachment, the whole organism of American government will be subtly transformed, without the expressed consent of the people governed, from the federalism that has provided its greatest strength to an immoderate centralism that will prove its greatest weakness. In maintaining its case, the South is no longer fighting the question of separate schools or even a question of race relations at all; it is contending, rather, for the preservation of an American plan of value to all the States and all the people. What is lost to the Southern States, in terms of political powers, is lost to all States; and the imposition of court-ordered prohibitions in one field makes the next imposition that much easier. By the court’s decree of 1954, the South’s largest, most expensive, most important, most cherished public institutions—our public schools—were thrown into potential jeopardy and chaos. Whose most cherished institutions will be next?
II
The South’s legal position in the school controversy is essentially a constitutional position; it cannot be fully understood without some understanding of how the Southerner views the Constitution. He views it through the eyes of the States. These are to him, as Oliver Wolcott of Connecticut called them, “the pillars which uphold the general system.”
Most readers of this essay, it may be assumed, have a good working knowledge of the Constitution. Some will not; they may never have read the Constitution, line by line and word by word; they know its provisions vaguely, not explicitly, and the trail that led from the creation of States to the formation of a Union is as remote to them as a path through the Pleiades. Hence this hornbook review. And if Jefferson’s Declaration of Independence seems irrelevant to the South’s position in Brown v. Board of Education, it is only because too much emphasis has been put on the Declaration’s first few lines and not enough on its last.
Perhaps in the divine plan, all men are indeed “created equal.” Here on earth they patently are not. Jefferson’s opening hyperbole was never meant to be taken literally. But he did mean for the closing lines to be taken, at international law, for precisely what they were—a declaration that the colonies once tied to Britain, were now free and independent States—
and that as Free and Independent States, they have full power to levy War, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do.
In that moving Declaration, nothing was said of the birth of a “nation.” In truth, nothing was said of a “nation” in the Articles of Confederation, or in the Constitution that succeeded the Articles. The Declaration was the act of “one People,” but the political aim in the decade that followed the Declaration of 1776 was to form a more perfect Union—a union of separate, sovereign States, acting jointly for some purposes, but acting individually for others. And the political genius of the founding architects who designed this structure is the very genius so widely disdained by the busy planners and amateur carpenters of our own time.
What did the Declaration assert the function of government to be? Why is it that governments are instituted among men? The answer, in Jefferson’s phrase, is that governments are instituted among men to secure rights—not to grant rights, which a free people have to begin with, but only to secure rights. And where does government derive its powers in this regard? It derives its just powers “from the Consent of the Governed,” and from no other source. How is this consent manifested? The answer lies in the whole of the republican process, which in the United States is a process exercised entirely through the actions of the people in their States.
The colonists who cast off the yoke of Great Britain did not propose to take on a fresh yoke of their own contriving in its place. The sum of their charges against the Crown was that George III had sought to establish “an absolute tyranny over these States.” He had “erected a multitude of New Offices and sent hither Swarms of Officers to harass our People and eat out their Substance.” In the formation of a new and independent government, the founding fathers were determined to minimize the opportunities for new tyranny to come into power. And toward that end, they were determined that the powers of government should be fragmented, and partitioned off, and kept securely under leash. They feared excessive “bigness” for the best of all reasons, that excessive bigness ought always to be feared when the liberties of a people are at stake. They sought to provide a check here, a balance there, a string of unequivocal prohibitions somewhere else. They insisted always upon a reservation to the people themselves of powers ungranted. These were the prudent goals the greatest political minds of our country sought to achieve.