To complete the record of school decisions directly in point, prior to the Supreme Court’s opinion of 1896 in Plessy v. Ferguson, one final case should be mentioned. This was Lehew v. Brummell (15 S.W. 765), decided by the Supreme Court of Missouri in March 1891. Both the Missouri Constitution and a State act of 1887 then required racially separate schools. Five Negro children of Grundy County attacked the requirement as violative of both the “privileges and immunities” and “equal protection” provisions of the Fourteenth Amendment. The Missouri court rejected both contentions. “The right of children to attend the public schools, and of parents to send their children to them, is not a privilege or immunity belonging to a citizen of the United States as such. It is a right created by the State, and a right belonging to citizens of the State as such.” On the second point, separation of pupils by race was not an unreasonable or arbitrary classification, for
color carries with it natural race peculiarities, which furnish the reason for the classification. There are differences in races, and between individuals of the same race, not created by human laws, some of which can never be eradicated. These differences create different social relations, recognized by all well-ordered governments. If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage.... The fact that the two races are separated for the purpose of receiving instruction deprives neither of any rights. It is a reasonable regulation of the exercise of the right.
Mention of the Lehew case in Missouri brings this chronology of judicial pronouncements on racially separate schools to the Supreme Court’s famous statement in Plessy. With that landmark in sight, the citizen seeking to learn what the framers intended the Fourteenth Amendment to accomplish should pause to read two other monumental Supreme Court opinions—the Slaughter-House Cases of 1873 (16 Wallace 36) and the Civil Rights Cases of 1883 (109 U. S. 3). They do not deal directly with a State’s power to operate racially separate public schools, but they do speak eloquently of the whole meaning of the Reconstruction amendments as that meaning was understood by those closest to it.
In the Slaughter-House Cases, the court dealt with an act of Louisiana creating a single company to have exclusive responsibility for meat-processing in New Orleans. The law was intended to promote health and sanitation (or so the State insisted), but local butchers attacked it as an invasion of their rights under the Fourteenth Amendment. The Supreme Court would not agree. No right to be a butcher in Louisiana inured to a “citizen of the United States” prior to adoption of the Amendment, and the amendment gave him none. Such rights, privileges, and immunities remained within the jurisdiction of the States after 1868, as surely as they had rested with the States before 1868. In terms of the basic structure of the Union, the War of 1861-65 had changed nothing. The Fourteenth Amendment, though it laid certain prohibitions upon the States and vested in the Congress power to enforce those prohibitions by appropriate legislation, never had been intended “to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States.” Any such interpretation would radically change “the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people.” No such results, said the court, “were intended by the Congress which proposed these amendments, nor by the legislatures which ratified them.” The Fourteenth Amendment had then been in effect only five years. Every member of the court was familiar with the circumstances surrounding its submission and ratification.
On March 1, 1875, Congress enacted a truly sweeping Civil Rights Act. The first section asserted, affirmatively, that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other like places of amusement.” Five cases testing the law came together before the Supreme Court for decision in October 1883. Harlan alone dissented from an opinion of the court declaring that the act went beyond the boundaries of the power vested in the Congress by the fifth section of the Fourteenth Amendment. What was this power? In the view of the majority, it boiled down simply to this—a power to enforce. To enforce what? To enforce the prohibitions laid upon the States—that is, to adopt “corrective legislation such as may be necessary and proper for counteracting such laws as the States may adopt or enforce and which, by the amendment, they are prohibited from making or enforcing.” [Emphasis added.] The Civil Rights Act did not vest in the Congress any power to adopt general legislation dealing with the rights of the citizens, or to establish any code of municipal law. Any such assumption, said the court, “is certainly unsound.” The intention of the Fourteenth Amendment was to prohibit the States from denying to any person “those fundamental rights which are the essence of civil freedom, namely, the right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property.” Whenever a State attempted by its own action to deny a Negro such rights as these, a State would be in violation of the Constitution; but until a State transgressed upon some right secured by the amendment, a State could do as it wished. Was a right to attend an integrated public school such a right? The Civil Rights Cases do not suggest it for a moment. On the contrary, the construction placed upon the Fourteenth Amendment by the court suggests precisely the opposite.
Whatever doubts might have been lingering in any quarter were put at rest by the Supreme Court’s opinion of May 1896 in Plessy v. Ferguson. The Fourteenth Amendment had been in operation nearly twenty-eight years. Plessy, one-eighth Negro, challenged a Louisiana State law requiring separate facilities for whites and Negroes on railway lines; his principal contention was that he was thereby denied equal protection of the laws. With only Harlan dissenting (Brewer did not participate), the Supreme Court expounded in clear and simple terms the “understanding” and “contemplation” of the Fourteenth Amendment:
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have generally, if not universally, been recognized as within the competency of the State legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. [Emphasis supplied.]
What was the primary question the United States Supreme Court asked in the Brown case in June 1953? This was the question: Whether the Congress that submitted the Fourteenth Amendment, and the States that ratified it, understood or contemplated that the amendment was intended to abolish segregation in public schools.
We have seen that the Congress surely did not understand or contemplate this: The Congress itself provided for racially separate schools in the District of Columbia. Over a long period of years following adoption of the amendment, States both North and South continued to operate separate schools, without protest or interference of any sort from Congress.
Just as plainly, the States that ratified the amendment did not understand or contemplate that it was intended to abolish segregation in schools: One after another, they provided for racially separate schools in the same breath with which they ratified the amendment.