The Southern Case for School Segregation

by James Jackson Kilpatrick

And surely it is all the more evident, to get at Questions 2 (b) and 3, that nothing in the Fourteenth Amendment, or in any other provision of the Constitution or act of Congress, ever was intended to give the Supreme Court the power to abolish segregation in public schools by its own fiat. If the power to accomplish this end rested in Federal authority at all, it rested in the hands of the Congress. The court might decide whether an act of the Congress prohibiting such schools in the States were “appropriate legislation” to enforce provisions of the Fourteenth Amendment, but the court has no legislative authority of any sort. As the court itself said in the Slaughter-House Cases, the amendment was not intended to make the court “a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights as they existed at the time of the adoption of this amendment.”

Question 3, it will be noticed, goes beyond Question 2 (b). In Question 2 (b), the court was still concerned with the intention of the framers of the Fourteenth Amendment: Did the framers understand in 1866 that some day the court, in the light of future conditions, could construe the amendment to abolish school segregation of its own force? But in Question 3, the framers are abandoned: Is it within the judicial power today, the court inquired, without regard to history, for the court itself to abolish school segregation by placing a new construction on the amendment?

In the brief they filed in response to the court’s inquiries, attorneys for the Southern States said this:

Certainly judicial power exists if the only question be whether this court is empowered to make an enforceable decision. But to interpret the Fourteenth Amendment as authority for the judicial abolition of school segregation would be an invasion of the legislative power and an exact reversal of the intent of the framers of the amendment.

Yes, the court has power. Hughes’ cynical remark contains grim truth: Judges are restrained only by the Constitution, and the Constitution is what the judges say it is. But if the ethical tradition of our society teaches us one thing (wholly apart from the judicial tradition), it is that might and right ought always to be carefully distinguished. And on no nine men in the world does this responsibility rest more heavily than on the nine members of the court. Defense counsel in the school cases quoted Mr. Justice Cardozo: “Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by that abuse of power, they violate the law.”

Judges are not supposed to violate the law, to constitute themselves a super-legislature, to plunge beyond the bounds of the Constitution itself. And no body of critics has said this more frequently than the judges themselves.

In the famous case of United States v. Butler, (297 U. S. 1), holding that the Agricultural Adjustment Act of 1935 exceeded the power vested in the Congress to regulate commerce, the Supreme Court divided violently—but both the majority and the minority, in their discussions of judicial power and responsibility, made the same points. “The only power the court has,” said the majority, “if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” Harlan Stone, in the magnificent dissent in which Brandeis and Cardozo joined, expressed the responsibility of the court in this fashion:

The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the courts but to the ballot and to the processes of democratic government.

Did the Supreme Court, in the School Segregation Cases, have the power to abolish segregation by placing its own contemporary construction on the Fourteenth Amendment? By casting aside Stone’s “sense of self-restraint,” and by substituting their own notions of what was right for the plain history of what was constitutional, the judges could assume that naked power. In the end, that was what they did—in violation of precepts they themselves had pronounced eloquently in other cases.

Mr. Justice Black, for example, was solidly on the side of judicial tradition in 1946, in Morgan v. Virginia (328 U. S. 373). The question was whether a Virginia law, requiring separate seats for white and colored passengers on buses, placed an unconstitutional burden on interstate commerce. A majority of the court thought it did, but Black, though he agreed entirely with the result of the majority’s ruling, protested strongly that the power to regulate commerce was a power vested in the Congress and not in the courts. Yet in a series of cases, the court had nullified State laws just as it was nullifying Virginia’s enactment in the Morgan case. “I thought then, and still believe,” said Black, “that in these cases the court was assuming the role of a ‘super-legislature’ in determining matters of governmental policy.” Where was Mr. Justice Black in May 1954?