The Southern Case for School Segregation

by James Jackson Kilpatrick

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.”