And this was what the court shattered in the Brown case: The myth, the grail, the mystery of the law. “The judicial function is that of interpretation,” Sutherland once said; “it does not include the power of amendment under the guise of interpretation.” Cardozo said the same thing: “We are not at liberty to revise while professing to construe.” Hughes said it too: “The power of this court is not to amend, but only to expound the Constitution as an agency of the sovereign people who made it and who alone have authority to alter or unmake it.”
But the court disdained these ancient and elementary rules. “By its decision in the Brown case,” former Justice Byrnes has said, “the court did not interpret the Constitution. It really amended the Constitution.” This the court had no legal or moral right to do. It had only the power to do it—the absolute power, in Acton’s famous phrase, that left unrestrained, corrupts absolutely.
Part III
Prayer of the Petitioner
I had not intended to write a “Part III” for this book. The object was to put forth a brief for the South in the single narrow field of racially separate public schools; my thought was to summarize and argue the law and the evidence of Brown v. Board of Education as the South views them, and to leave such issues as “sit-ins,” and voting rights, and the Negro’s future for another day. Yet a familiar part of the pleading in almost any case is the prayer of the petitioner, and there is something more to be said for the South in that hypothetical role.
Patience, the South would ask of its adversaries: Be patient; be tolerant of imperfection; be mindful that in these difficult areas of race and race relations, wisdom and virtue do not reside exclusively in the North, nor sin and ignorance exclusively in the South. The white man most surely has been at fault; that is conceded. But in his own way, the black man has been at fault too. And in neither racial camp can these faults be corrected in the twinkling of a generation.
The apostles of instant innovation, crying zealously for change, do not comprehend the elemental nature of the forces they are dealing with. “All is race,” said Disraeli in Tancred; “there is no other truth.” The earliest history of man reflects an awareness of racial distinctions; in one fashion or another, discrimination has existed through all recorded time, and “prejudice,” if you please, like the poor, has been with us always. It exists among the Negro people themselves. It exists around the world, and may be seen in especially cruel and virulent forms in some of those nations said to be so terribly offended by the manifestations of segregation that remain in the American South. The beam in the eye of Herman Talmadge is small against the mote in the eye of Mr. Nehru. The Old World has lived with these problems several millennia longer than the New, but it has solved them not better; in truth, it has solved them much less well, and in most cases, it has not solved them at all.
As a creature of the law, racial segregation in the United States is dead. The voices once confidently raised in the South, crying that the court would reverse itself in time, have all but died out now. The court will not reverse itself. On February 26, 1962, a per curiam opinion rebuked a Mississippi Federal court in icy terms: “We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. The question is no longer open; it is foreclosed as a litigable issue.” (Bailey v. Patterson, 30 LW 4164.) Similarly, the court has plunged far beyond the reasoning it advanced in Brown as a justification for prohibiting segregation in the schools; the hearts and minds of children, the importance of education, and the intangibles of a classroom do not figure at all in cases that involve golf courses, courthouse cafeterias, and the rest rooms of public buildings. Many staunch Southerners, declaring themselves unwilling to surrender, do not realize that as a matter of law, the war is over. There is now not the slightest possibility of a constitutional amendment to undo what the court did; the Congress will never pass a law that sanctions segregation in a public institution; the court is unanimous in its resolution, and some of its members are young. The Southern State that puts reliance hereafter in any law requiring racial separation is relying upon a vain and useless thing. We should be better off, as a matter of law, if Southern legislatures would go through their Codes with an art gum, erasing the word “Negro” wherever it appears. Statutory defenses against segregation, apart from any remaining value they may have in obtaining the law’s delays, are useless.
These are harsh truths for the South, but the South would do well to grasp them; once understood, they suggest a course of events in which accommodation may be found within the broad structure of a voluntary society. Ovid is sufficient authority for the maxim that nothing is stronger than custom; and by relying upon custom, and freedom, and precepts of the law as yet uncorrupted by the court, the South—and here I mean the white South and the Negro South alike—can discover some room to turn around in.
Virginia has pointed a way toward such an accommodation, so far as education is concerned, in its freedom-of-choice program. Under an act of the General Assembly of 1958, every child in Virginia has a right to choose between attending a public school or a nonprofit, nonsectarian private school. The law has nothing to do with segregation or desegregation. The modest tuition grants provided in the law (in no case is a grant higher than the local per-pupil cost in public schools) are intended to represent each child’s equal share in a total appropriation for purposes of education, and the State stands indifferent to the child’s way of spending it: Public or private, it is all the same to the Commonwealth, so long as the child is schooled.
The freedom-of-choice plan is working now, harmoniously and effectively, in such areas of Virginia as Norfolk, Charlottesville, and Front Royal. In each of the localities, the public schools are desegregated; in each of the localities, good private schools are operating. Some white families have made one choice, some another. In a number of cases, white children living in Albemarle County and Norfolk County have obtained county tuition grants in order to attend the desegregated public schools of neighboring Charlottesville and Norfolk city. The State raises no objection. This is the students’ right.