The Southern Case for School Segregation

by James Jackson Kilpatrick

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: