On July 20, 1868, Secretary Seward issued a cautious proclamation certifying that the Fourteenth Amendment had been ratified. There were, he surmised, thirty-seven States then “in the Union.” Twenty-eight, by Seward’s count, had approved the amendment, but he was doubtful about the whole affair. Among his twenty-eight were Arkansas, Florida, North Carolina, Louisiana, and South Carolina, where ratification had been sanctioned by “newly constituted and newly established bodies avowing themselves to be acting as the legislatures” of these States. If their resolutions were valid, and if the original ratifications of Ohio and New Jersey were still valid, notwithstanding their subsequent withdrawals, the amendment was a part of the Constitution.
On the following day, July 21, Congress passed a joint resolution to resolve Seward’s doubts. It ordered him to declare the amendment unconditionally adopted; and on July 28, adding the names of Alabama and Georgia, whose notifications had just been received, Seward declared the Fourteenth officially a part of the Constitution.
Was the Fourteenth Amendment thus legally and constitutionally added to the Constitution in 1868? It is exceedingly doubtful. Neither a resolution of the Congress nor a proclamation of a Secretary of State can supersede the Constitution itself. If the States of Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana were “in the Union” in 1865, when their ratifications of the Thirteenth Amendment were counted among the three-fourths necessary to adoption, it is impossible to understand how they legally could have been read out of the Union by the act of March 2, 1867, put under military dictatorship, and ordered to ratify the Fourteenth Amendment under duress. If the Confederate States are eliminated from the equation altogether, a mathematical case can be made to support ratification. Twenty-five States were represented in the Thirty-ninth Congress that proposed the Fourteenth Amendment in 1866. Nebraska was admitted to the Union March 1, 1867. Three-fourths of twenty-six States (for ratification purposes) is twenty States. By the time of the proclamations and resolutions of July 1868, twenty-one States outside the South had unconditionally ratified the amendment. But the assumption on which the Congress proceeded was that there were thirty-seven States in the Union in the summer of 1868. Three-fourths of thirty-seven States (for ratification purposes) is twenty-eight States. In order to count twenty-eight States, the ratifications of the rescinding New Jersey and Ohio must be added to those of Arkansas, Florida, North Carolina, Louisiana, and South Carolina; or, in place of New Jersey and Ohio, the ratifications of Alabama and Georgia may be substituted. In any event, reliance must be placed upon the coerced ratifications of either five or seven Southern States which at that time were denied a republican government, denied representation in the Congress, and denied the right to act freely upon the proposed amendment. This is the tainted parenthood of the constitutional provision on which the Supreme Court of the United States, in the school cases, sought to be informed.
I digress. The question here is, “What evidence is there that the ... State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?”
This is the evidence:
Among the States that ratified the Fourteenth Amendment were these twelve: Connecticut, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, Oregon, Rhode Island, Vermont, and Wisconsin. There is not a scrap of evidence to suggest that the issue of school segregation ever was considered in any of them. Rhode Island, Connecticut, and Michigan were the only States in this group with as much as 2 per cent Negro population in 1870 (Rhode Island had 5000 Negroes out of 217,000; Connecticut had 9668 Negroes in a population of 537,000; Michigan a Negro population of 11,849 in a total of 1,184,000.) The rest ranged down to the 346 Negroes then resident in Oregon and the 789 then resident in Nebraska. School segregation simply was no problem in these States in 1866. The question never was discussed.
Two other States that ratified the Fourteenth Amendment were Florida and Louisiana. Both houses of Florida’s legislature, when they were in a position to act freely, rejected the amendment unanimously. This was in December 1866. The following March came the Reconstruction Act, and in the course of time came a State constitutional convention set up by military decree. It was comprised of eighteen Negroes and twenty-seven Carpetbaggers and Scalawags. On June 9, 1868, the Governor of Florida dispatched to a similarly chosen legislature a message recommending “that no action be taken save that dictated by the acts of Congress as conditions precedent to admission, to wit: The passage of the proposed amendment to the Constitution, known as the Fourteenth Article....” The Florida legislature submissively ratified the amendment, 23-6 in the House, 10-3 in the Senate. Public schools were set up, with no statutory or constitutional provision to prevent their joint use by both races; but the evidence is persuasive that no integration ever occurred in this period, and in 1885, when an end to Reconstruction permitted Florida to follow the separate-but-equal pattern which by then had been solidly established elsewhere, the Florida Constitution was amended to provide that “white and colored children shall not be taught in the same school, but impartial provision shall be made for both.” Certainly Florida did not understand that the amendment, of and by itself, prohibited the States from requiring racial separation in the schools.
The situation in Louisiana was more chaotic still. The Louisiana legislature unanimously rejected the amendment in February 1867. Reconstruction followed. A constitutional convention was created, composed of forty-nine Negroes and forty-nine Carpetbaggers and Scalawags; it wrote a provision into the Louisiana Constitution that “all children ... shall be admitted to the public schools in common, without distinction of race, color, or previous condition. There shall be no separate schools or institutions of learning established exclusively for any race by the State of Louisiana.” But this language in a coerced State Constitution was ignored by the people. In 1870, the Superintendent of Public Instruction was to complain that the constitutional provision “excites a determined opposition on the part of many who would otherwise cooperate in the opening of schools and in the raising of funds for their support.” As the years passed, Louisiana established a system of racially separate public schools, in accordance with the demonstrable understanding of the Fourteenth Amendment elsewhere in the Union, and a freely chosen constitutional convention in 1898 made segregation mandatory.
Florida and Louisiana have been here singled out, because the confused record in the two States offers the best opportunity—indeed, the only opportunity—for a case to be made that any of the States ever understood or contemplated that the Fourteenth Amendment might in any fashion serve to prohibit the operation of racially separate schools. If evidence cannot be adduced here, it cannot be adduced anywhere. And this poor, scanty record of actions taken under duress—and later repudiated under freedom—is the best that hard-laboring historians can produce.
What of the other States? In twenty-three other States, positive evidence is available that neither the State conventions nor the State legislatures at any time ever understood or contemplated that the Fourteenth Amendment prohibited them from establishing racially separate schools.