The Southern Case for School Segregation

by James Jackson Kilpatrick

Section 4 re-emphasizes the status and function of the States, even as it lays down the first of the limitations upon State power voluntarily accepted by the ratifying members of the Union: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof: But the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators.”

In Section 5, the first of many limitations upon the central government appears: Each house of the Congress must keep a journal of its proceedings, and at the desire of one-fifth of the members present, must record the individual yeas and nays. Close study of the Constitution will disclose many such restrictive provisions, for the Constitution is in many respects a negative instrument; almost every delegation of power is followed at once by a snatching back, or by a qualification, or by a jealous and suspicious prohibition. The Constitution abounds in reservations, in neithers, noes, and buts.

Section 8 defines the powers of the Congress, and characteristically limits these powers even as it grants them: The Congress may lay and collect taxes, “But all duties ... shall be uniform throughout the United States”; the Congress may raise and support armies, “but no appropriation of money to that use shall be for a longer term than two years”; the Congress may provide for organizing and arming the militia, “reserving to the States respectively the appointment of the officers”; the Congress shall exercise exclusive power over the seat of the national government, but its purchase of other places is dependent upon “the consent of the legislature of the State in which the same shall be.”

In Section 9, one of the clauses appears that the Supreme Court was to forget in 1954—a provision specifically recognizing and sanctioning the institution of slavery as a custom in no way violative of the Fifth Amendment’s guarantee that no person may be deprived of his liberty without due process of law. No friend of the court yet has been able to explain exactly how a constitutional provision that did not prohibit slavery could be interpreted to prohibit racially separate but equal public schools in the District of Columbia. No matter. The more significant provisions of Section 9 go to the nine flat prohibitions therein placed upon the Congress. Here the States laid down the law to the joint government they were creating: The Congress could not (1) interfere with the importation of slaves prior to 1808; (2) suspend the privilege of the writ of habeas corpus; (3) pass a bill of attainder or (4) an ex post facto law; (5) impose a direct tax except in proportion to the census; (6) place a tax or duty on articles exported from any State; (7) give preference in any regulation of commerce or revenue to the ports of one State over those of another; (8) draw money from the Treasury except as a consequence of appropriations made by law, or (9) grant titles of nobility.

Section 10 follows with fourteen prohibitions the States agreed to put upon themselves by the Constitution. No State may (1) enter into a treaty or confederation; (2) grant letters of marque and reprisal; (3) coin money; (4) emit bills of credit; (5) make anything but gold and silver coin legal tender; (6) pass any bill of attainder or (7) ex post facto law or (8) law impairing the obligation of contracts; (9) grant any title of nobility; or, without the consent of the Congress, (10) lay any duty on imports or exports; (11) lay any duty of tonnage; (12) keep troops or ships of war in time of peace; (13) enter into any compact with another State, or (14) engage in war unless actually invaded or in such imminent danger as will not admit of delay.

Article II. The provisions of the Constitution dealing with the election and office of the President are significant in this brief review because of the indispensable function that is assigned to the States as States, even in the choice of a President. As a matter of law, the popular vote that is cast for presidential candidates in the Republic as a whole is meaningless. What counts, plainly, is the vote within each State, for this choice by the people within their State by custom governs the action of presidential electors who are appointed in each State “in such manner as the legislature thereof may direct.” And should the presidential electors fail to give any one candidate a majority of their votes, the election goes immediately to the House of Representatives where the votes shall be taken “by States, the representation from each State having one vote.”

The federal nature of our Union also is made apparent in the provisions of Section 2, which leave to the States the command of their own militia except “when called into the actual service of the United States,” and vest in the Senate a powerful control upon the executive power of the President. It is only with the advice and consent of the Senate that the President may make treaties, appoint ambassadors, and name judges of the Supreme Court and other officers. And the consent of Senators, to repeat, in a very real sense is the consent of the States as such.

Article III. The Constitution vests the judicial power of the United States (with such exceptions, and under such regulations as the Congress shall make) in one Supreme Court and in the inferior tribunals established by law. The chief point the advocate of States’ rights might emphasize here is that the high court’s power is entirely judicial in nature; its jurisdiction extends to cases in law and equity arising under the Constitution, under Federal law, and under treaties made under the authority of the United States, and to “controversies” in which a State as such, or diversity of citizenship on the part of litigants, may play a part.

Section 2 makes clear that the States must be considered separate entities in the trial of crimes, just as they are considered separate entities in the election of Congressmen: Crimes are to be tried “in the State where the said crimes shall have been committed.”

Article IV. All four sections of the Fourth Article are concerned with the States, their citizens, their obligations to other States, and their rights as members of the Federal Union. Here is the provision that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” The second section explicitly acknowledges State citizenship as distinct from United States citizenship. It says that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” This section also provides for the extradition of persons charged with crime, and prior to the Thirteenth Amendment, for the compulsory return of fugitive slaves. Section 3 protects the States from having new States carved out of their territory. Section 4 guarantees “to every State in this Union a republican form of government.”