Chapter XI: Section 2: makes clear that the States must be considered separate (1)

entities in the trial of crimes, just as they are considered separate entities in the election of Congressmen: Crimes are to be tried “in the State where the said crimes shall have been committed.”

_Article IV._ All four sections of the Fourth Article are concerned with the States, their citizens, their obligations to other States, and their rights as members of the Federal Union. Here is the provision that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” The second section explicitly acknowledges State citizenship as distinct from United States citizenship. It says that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” This section also provides for the extradition of persons charged with crime, and prior to the Thirteenth Amendment, for the compulsory return of fugitive slaves. Section 3 protects the States from having new States carved out of their territory. Section 4 guarantees “to every State in this Union a republican form of government.”

_Article V._ The brief provision dealing with amendment of the Constitution is of paramount importance in any understanding of the South’s protest against the school decision. John Taylor of Caroline once defined sovereignty as “the will to enact, the power to execute.” John Marshall spoke in the _Cohens_ case of the “supreme and irresistible power to make and unmake.” Article V defines and locates this supreme power--not in “the whole body of the people,” as Marshall carelessly remarked, but in “three-fourths of the several States.”

The scheme for amendment of the Constitution goes to the very essence of what makes the American Union great and unique among the powers of the earth: We do not accept the supremacy of “majority rule.” If there is one ancient parliamentary principle to which the Constitution does _not_ subscribe, it is the principle of majority rule. In every major question touched upon in the Constitution--for the impeachment of officers, the overriding of a veto, the ratification of a treaty, the proposing and adopting of amendments to the Constitution--in all of these, mere majorities are not enough. Some margin of more than a majority is required. And when it comes to changing the Constitution itself, the explicit provision is that no change can be made without the expressed and tacit approval of at least three-fourths _of the States_. The laws, customs, desires, preferences of a minority of the States are not to be blindly overthrown by any 51 per cent of the people; and until the _Brown_ case came along, it was not imagined in the South that Article V could be suspended, and the Constitution effectively amended, by the will of nine judges.

The substance of Article VI has been quoted earlier, and the concluding Article VII is notable chiefly for the light it sheds upon the relationship of the States to one another within the Federal Union: “The ratification of the conventions of nine States,” it says, “shall be sufficient for the establishment of this Constitution _between the States so ratifying the same_.” The language plainly justifies what sometimes is referred to disparagingly as “the compact theory,” as if a concept of the Constitution as a compact “between the States so ratifying the same” were no more than a gauzy illusion of Calhounian metaphysicians. The Constitution is in fact, as even Mr. Justice Douglas has described it, a “compact between sovereigns” (_New York_ v. _United States_, 362 U. S. 572). The United States of America, as a corporate being, came into existence with New Hampshire’s ratification as the ninth State on June 21, 1788. If Virginia, New York, North Carolina, and Rhode Island thereafter had failed to ratify (the vote was 89 to 79 in Virginia, 30 to 27 in New York, and 34 to 32 nearly two full years later in Rhode Island), they might be to this day sovereign and independent States, small nations, republics in their own regard. It was by their own voluntary actions that the States accepted the Constitution and agreed to be bound by it. As partners in a joint venture they entered into compact; and the Constitution was, and is, the written instrument by which their mutual understanding is set down, not to be altered without the consent of three-fourths of them.

The ratifying conventions, especially those in the key States of Virginia and New York, provide abundant documentation of the prophetic vision with which the Founding Fathers sought to protect their infant Republic from the predictable excesses of “big government.” Our nation was created in an abiding sense of distrust; most of _The Federalist_ papers are devoted toward soothing and allaying the fears of those who apprehended that one day the central government would get out of hand. “Suspicion is a virtue,” cried Patrick Henry in the Virginia convention, “as long as its object is the preservation of the public good, and as long as it stays within proper bounds.... Guard with jealous attention the public liberty! Suspect everyone who approaches that jewel!... I shall be told I am continually afraid; but, Sir, I have strong cause of apprehension. In some parts of the plan before you, the great rights of freemen are endangered, in other parts absolutely taken away.... But we are told that we need not fear, because those in power, being our representatives, will not abuse the powers we put in their hands. I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed most often by the licentiousness of the people, or by the tyranny of rulers?”

To put at rest these widespread fears of excessive centralism, the ratifying States demanded a series of explicit amendments to the Constitution, intended to place further express prohibitions upon the Congress. These amendments became, of course, the Bill of Rights; and important as the first eight amendments are, the forgotten Ninth and Tenth speak with telling eloquence of the nature of our political institutions. The Ninth asserts that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And the Tenth, once insisted upon by New York as positively as by Virginia, declares in words too clear possibly to be misunderstood that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There in the Tenth Amendment is the key that should unlock all mysteries of construction, wherever the State and Federal relationship is at issue. It does not treat of “rights.” Rights belong to people, and are retained by them in the Ninth. The Tenth deals with powers, and its careful wording spells out the essence of our Union. The Congress has no powers whatever, save those the States have delegated to it “by the Constitution.” If authority for some congressional act cannot be found in the Constitution, the authority does not exist, for the Congress has no implied or inherent powers; its powers begin and end with the powers enumerated in the written instrument itself--including, to be sure, the power to adopt “necessary and proper” laws to put the powers to work. All other powers, not prohibited to the States _by the Constitution_, are expressly reserved to the States respectively, or to the people.

There is great meaning here for the issue that prompts this brief. What the South has said, repeatedly, earnestly, unavailingly, is that the power to operate public schools plainly is a power reserved to the States respectively _by the Constitution_. The power is not delegated to the United States; it is not prohibited to the States by the Constitution; therefore it remains with them. The power to operate public schools necessarily embraces the power to decide what kind of public schools will be operated; and so long as the States do not violate any prohibition laid upon them by the Constitution, they are free to operate whatever schools they please. Their contention is that nothing in the original Constitution of 1788, nothing in the pre-War amendments, nothing in the Reconstruction amendments, and nothing added to the Constitution in this century was intended to prohibit to the States the power to operate racially separate public schools. On the contrary, the South contends that this power plainly was recognized, acknowledged, and judicially sanctioned in States North and South for eighty years after the Fourteenth Amendment became operative; and we deny that a construction so long placed upon the Constitution, in an area of public affairs so vitally and intimately affecting the daily lives of so many millions of persons, validly may be wiped out by a stroke of judicial pens.

III

The four cases that were to coalesce as _Brown_ v. _Board of Education_ had their beginnings in four widely separated proceedings. In the first of the suits, Harry Briggs, Jr., and forty-five other Negro children of Clarendon County, S. C., brought an action on December 22, 1950, against R. W. Elliott and other members of the county’s School District 22. The following March, in Kansas, Oliver Brown and other colored children filed suit against Topeka’s board of education. In May 1951, Dorothy E. Davis and other Negro plaintiffs in Prince Edward County, Va., launched their proceeding against county officials. Nine months later, in the early spring of 1952, Ethel Louise Belton and others sued for nondiscriminatory admission to the public schools of Hockessin and Wilmington, Del.

Each of the suits was carefully coordinated with the others by the National Association for the Advancement of Colored People, and each had the same object--overthrow of the “separate but equal” rule that had governed the operation of racially separate schools since Reconstruction days. Counsel’s plan was to show, first, that school facilities for white and Negro children were not equal as a matter of fact, but this was not so important; beyond this--and it was by far the more significant aim--the object was to prove, as Thurgood Marshall said in South Carolina, that “the segregation of pupils in and of itself is a form of inequality,” and hence a violation of the Fourteenth Amendment’s requirement of equal protection of the law.

The Clarendon County case, which came on for trial before a three-judge Federal court in Charleston May 28-29, 1951, provided the pattern. The pleadings were drafted by Marshall himself and by Robert L. Carter of New York, the two top lawyers for the National Association for the Advancement of Colored People. (In 1961, Marshall became a Federal circuit judge.)

The facts were not in great dispute. At that time, there were in Clarendon County as a whole 6500 Negro children and 2375 white children. District 22 had 684 Negro elementary pupils and 150 Negro high school pupils, plus 102 white elementary pupils and 34 white high school pupils. The Negro pupils of District 22 went to three schoolhouses: Scott Branch (a combined elementary and high school), Liberty Hill, and Rambay. All the white pupils went to the Summerton elementary and high school. It was shown that the facilities for white children, though old (the Summerton high school was built in 1907), were in many respects far superior to the facilities for the Negro children. The two-room Rambay School and the four-room Liberty Hill School had no running water, and Rambay had no electric power. The Negro schools had few of the educational aids provided at Summerton; their playgrounds were inferior; toilet facilities at the two smaller buildings were outside privies. County officials pointed out that neither water nor sewage lines existed in the area of the two schools; in the remote rural section served by Rambay, no electric power was available to anyone; the library for colored pupils at Scott Branch, they said, was superior to the library for white pupils at Summerton; and they denied any discrimination in transportation, janitorial services, and other amenities. As the case went to trial, however, counsel for Clarendon County confessed a general inequality in physical facilities, described a State-wide plan instituted by Governor Byrnes for school improvements, and pledged a prompt effort to achieve equality.

By far the most significant evidence in the Clarendon County case came from a group of witnesses summoned by the plaintiffs to testify on the psychological effects of segregation itself. Kenneth Clark, assistant professor of psychology at the New York City College, was a key figure in this phase of the NAACP’s assault. In the _Teachers’ College Record_ for October 1960, he revealingly describes the fashion in which he was approached by Carter in February 1951, on behalf of the NAACP’s Legal Defense Fund, to prepare exhibits and test findings that would support the plaintiffs’ side in the School Segregation Cases. Carter wanted material that would show how “segregation inflicts psychological damage on its victims,” and Clark collaborated with the lawyers in preparing psychological data “to be used in whatever ways they believed most effective in the presentation of their case.” As part of the plan, Clark himself went to Clarendon County, and administered the “doll test” to twenty-six Negro children; in this test, the subjects are shown two dolls identical except for skin coloring--one doll is white, the other brown. They then are asked which doll they like best, which doll is “nice,” which doll is “bad,” and which doll “is like you?” From the answers to these questions, Clark testified in the Clarendon case, “we get some picture of the child’s concept of his own color, and we also get an indication of the child’s anxieties and confusions about his color and his feelings.” Not surprisingly, the twenty-six pupils Clark tested in Clarendon County were found to have been “definitely harmed in the development of their personalities.”

Other witnesses for the plaintiffs included Harold McNalley, associate professor of education at Columbia Teachers College; Ellis O. Knox, professor of education at Howard University; James L. Hupp, professor of education and psychology at Wesleyan College of West Virginia; David Krech, professor of social psychology at Harvard; and Mrs. Helen Trager, a lecturer in psychology at Vassar. Their testimony, admitted over defense objections that it was irrelevant and immaterial, was intended to support the plaintiffs’ primary contention that segregation, in and of itself, caused emotional damage to the Negro child, and that segregated schools could never be made “equal” as a matter of law.

On June 23, 1951, the Fourth Circuit’s Chief Judge John J. Parker, joined by District Judge George Bell Timmerman, handed down an opinion in the Clarendon County case. The third member of the court, District Judge J. Waties Waring, strongly dissented to the Parker-Timmerman decision. The majority decree directed county officials to proceed at once with genuine equalization of public school facilities, but the court refused to upset the long-standing doctrine of “separate but equal.” The late Judge Parker was one of the nation’s most widely admired jurists, a North Carolinian who had then had more than twenty-five years’ experience on the bench. His opinion (98 F. Supp. 529), though it subsequently was to be reversed, merits respectful consideration in any study of the South’s position.

On the key question developed by the plaintiffs--that segregation in itself is a denial of equal protection--Parker took a calmly judicial approach: This is a “matter of legislative policy for the several States,” he said, “with which the Federal courts are powerless to interfere.” He continued:

One of the great virtues of our constitutional system is that,
while the Federal government protects the fundamental rights of
the individual, it leaves to the several States the solution of
local problems. In a country with a great expanse of territory,
with peoples of widely differing customs and ideas, local self
government in local matters is essential to the peace and happiness
of the people in the several communities as well as to the strength
and unity of the country as a whole. It is universally held,
therefore, that each State shall determine for itself, subject to
the observance of the fundamental rights and liberties guaranteed
by the Federal Constitution, how it shall exercise the police
power, i.e., the power to legislate with respect to the safety,
morals, health and general welfare. And in no field is this right
of the several States more clearly recognized than in that of
public education.

Judge Parker quoted from an opinion by the District of Columbia’s Judge E. B. Prettyman, an outstanding jurist who had considered the question a year earlier in _Carr_ v. _Corning_ (182 F.2d 14). There Judge Prettyman raised the question of whether the Fourteenth Amendment had lifted the entire problem of race relations out of the hands of all legislatures and settled it. “We do not think it did,” he said. “Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstance. We do not believe that the makers of the first ten amendments in 1789 or of the Fourteenth Amendment in 1866 meant to foreclose legislative treatment of the problem in this country. This is not to decry efforts to reach that state of common existence which is the obvious highest good in our concept of civilization. It is merely to say that the social and economic inter-relationship of two races living together is a legislative problem, as yet not solved, and is not a problem solved fully, finally or unequivocally by a fiat enacted many years ago. We must remember that on this particular point we are interpreting a Constitution and not enacting a statute.”

Judge Parker went on in his own opinion to review decisions of the Supreme Court sustaining the separate-but-equal doctrine, and to distinguish between education at the graduate-school level and education at the elementary-school level. In dealing with the grammar schools, under systems of compulsory attendance, local lawmakers have problems of educational policy that must take into account not only questions of instruction “but also of the wishes of the parent as to the upbringing of the child and his associates in the formative period of childhood and adolescence.” If public education is to have the support of the people through their legislatures, Judge Parker said, “it must not go contrary to what they deem for the best interests of their children.” The plaintiffs’ expert witnesses had testified that mixed schools would benefit children of both races by exposing them to democratic opportunities in community living. Defense witnesses, on the other hand, had testified that mixed schools would result in friction and tension. Said the court:

The questions thus presented are not questions of constitutional
right but of legislative policy, which must be formulated,
not _in vacuo_ or with doctrinaire disregard of existing
conditions, but in realistic approach to the situations to which
it is to be applied.... The Federal courts would be going far
outside their constitutional function were they to attempt to
prescribe educational policies for the States in such matters,
however desirable such policies might be in the opinion of some
sociologists or educators. For the Federal courts to do so would
result, not only in interference with local affairs by an agency
of the Federal government, but also in the substitution of the
judicial for the legislative process in what is essentially a
legislative matter.

The public schools are facilities provided and paid for by the
States. The State’s regulation of the facilities which it furnishes
is not to be interfered with unless constitutional rights are
clearly infringed. There is nothing in the Constitution that
requires that a State grant to all members of the public a
common right to use every facility that it affords.... The equal
protection of the laws does not mean that the child must be treated
as the property of the State and the wishes of his family as to his
upbringing be disregarded.

In oral argument of the case, Thurgood Marshall had urged the trial court to create judicial history by abandoning, on its own motion, the precedents of many years in support of “separate but equal.” Judges Parker and Timmerman were not willing to do so. These unreversed decisions, they said, were squarely in point and conclusive. If this long line of cases were to be overturned or held outmoded, the Supreme Court itself would have to take that step. And Parker concluded:

To this we may add that, when seventeen States and the Congress of
the United States have for more than three-quarters of a century
required segregation of the races in the public schools, and when
this has received the approval of the leading appellate courts
of the country including the unanimous approval of the Supreme
Court of the United States at a time when that Court included
Chief Justice Taft and Justices Stone, Holmes and Brandeis,
it is a late day to say that such segregation is violative of
fundamental constitutional rights. It is hardly reasonable
to suppose that legislative bodies over so wide a territory,
including the Congress of the United States, and great judges of
high courts have knowingly defied the Constitution for so long a
period or that they have acted in ignorance of the meaning of its
provisions. The constitutional principle is the same now that it
has been throughout this period; and if conditions have changed
so that segregation is no longer wise, this is a matter for the
legislatures and not for the courts. _The members of the judiciary
have no more right to read their ideas of sociology into the
Constitution than their ideas of economics._ [Emphasis supplied.]

In the course of time, to be sure, the Warren court was to do precisely what Judge Parker said judges ought never to do, but nearly three years were to elapse before that famous decree would descend upon the South. Meanwhile, the other three cases, in Kansas, Virginia, and Delaware, were still to be tried. They followed the Clarendon pattern rather closely. In Topeka, counsel for the Negro plaintiffs made little effort to show physical inequalities in the city’s white and Negro schools. The city was then operating eighteen white schools and four Negro schools, under a State law permitting, but not compelling, racial separation. The trial court found as a fact (98 F. Supp. 797) that the facilities were substantially equal: “It is obvious that absolute equality of physical facilities is impossible of attainment.” The broader question presented by the plaintiffs “poses a question not free from difficulty,” but Judge Walter A. Huxman and his colleagues in Kansas was no more disposed than Judge Parker and Judge Timmerman in South Carolina to upset long-established precedents. The three-judge court unanimously upheld segregation in the Topeka schools.

In Virginia, the Prince Edward County case was tried February 25-29, 1952, before a court composed of Circuit Judge Armistead Dobie and District Judges Sterling Hutcheson and Albert Bryan. Once again, as in South Carolina, the defense confessed the physical inequality of white and Negro school facilities, and accepted a court order requiring prompt and diligent efforts to make the facilities equal. But here, too, physical equality was not the principal issue. The question was whether segregation in itself violated the Fourteenth Amendment. On this point, the Negro plaintiffs produced a fresh array of sociologists, anthropologists, psychologists, and psychiatrists to testify to the harmful effects of segregation; the defense produced “equally distinguished and qualified educationists and leaders in other fields” who emphatically asserted that, given equivalent physical facilities, offerings, and instruction, the Negro would receive in a separate school the same educational opportunity he would obtain in a mixed school. Each of the expert witnesses, said Judge Bryan, “offered cogent and appealing grounds for his conclusion.”

But the three Federal jurists in Virginia took the same position that Parker and Timmerman had taken in Clarendon County--in brief, that the only duty of a Federal court in such a case is to determine whether a State’s policy is so arbitrary and capricious as to be wholly without support in reason. Here, the “unbroken usage in Virginia for more than eighty years” offered evidence of a policy reflecting the established mores of the people. So distinguished a witness as Virginia’s Colgate W. Darden, a former Governor and then president of the University of Virginia, had testified that elimination of separate schools would injure both races. Under the circumstances, the court was unable to say that the State’s policy of racially separate schools was without substance in fact or reason:

We have found no hurt or harm to either race. This ends our
inquiry. It is not for us to adjudge the policy as right or
wrong--that the Commonwealth of Virginia shall determine for itself.

Last of the four cases to be heard was in Delaware, where the State Chancellor on April 1, 1952, entered an order directing the admission of a number of Negro children to the public schools of New Castle County on a nondiscriminatory basis (87 A.2d 862). The evidence was not in dispute: The colored high school students were denied admission to Claymont High School and were required instead to attend Howard High School in neighboring Wilmington. Elementary pupils were barred from Hockessin School No. 29 and required instead to attend the all-Negro Hockessin School No. 107. The Chancellor found that inequalities did in fact exist, in teacher training, pupil-teacher ratio, extracurricular activities, transportation, physical plant, and the like. Though he was inclined to agree that segregation in itself “results in Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children,” the Chancellor was unwilling to decide the case on this new ground. On the merits of their case alone, under the separate-but-equal rule, the Negro plaintiffs were entitled to immediate relief. On August 28, 1952, the Supreme Court of Delaware affirmed (91 A. [2d] 127). And the Supreme Court of the United States, having granted certiorari in each of the cases, set them for joint argument December 9-11, 1952.

IV

The Supreme Court of the United States then was headed by Fred M. Vinson of Kentucky, as Chief Justice. Others who heard the ten hours of argument that December were Hugo L. Black of Alabama, Felix Frankfurter of Massachusetts, William O. Douglas of Connecticut, Robert H. Jackson of New York, Harold H. Burton of Ohio, Tom C. Clark of Texas, Sherman Minton of Indiana, and Stanley Reed of Kentucky.

It is difficult--impossible might be a better word--to guess at the outcome of a Supreme Court case by attempting to read the minds of the judges through the questions asked from the bench. Here, however, it seemed unusually clear that the court was seriously divided. Burton indicated the course that ultimately was to be taken. During argument on the Topeka case, he put a question to Paul E. Wilson, assistant attorney general of Kansas: “Don’t you recognize it as possible that in seventy-five years the social and economic conditions of the Nation have changed so that which might have been a valid interpretation of the Fourteenth Amendment seventy-five years ago would not be valid today?” Wilson replied that he recognized the possibility, but did not believe the record disclosed such a change. Evidently recalling some of Judge Parker’s language in the Clarendon County decision, Burton persisted: “But that might be different from saying that these courts of appeals and State supreme courts have been wrong for seventy-five years?” Wilson agreed, but made the point that until the Supreme Court itself overturned its own precedents, no other guide to the law was available. When John W. Davis arose to argue the South Carolina appeal, Burton put the same question to him. Davis said: “My answer to that is that changed conditions may affect policy, but changed conditions cannot broaden the terminology of the Constitution.” Changes in social or economic conditions, Davis thought, raised “an administrative or political question, not a judicial one.” Burton subsided with a remark that he viewed the Constitution as a living document “that must be interpreted in relation to the facts of the times in which it is interpreted.”

Pointedly stating a conflicting view, Frankfurter interrupted Thurgood Marshall’s argument at one point to recall that the court recently had upheld the power of Louisiana to restrict the calling of river pilots “to the question of who your father was.” The court sustained that legislation, he said, “not because we thought it admirable or because we believed in primogeniture, but because it was so imbedded in the history of that problem in Louisiana that we thought on the whole that was an allowable justification.”

At the conclusion of the argument, attorneys on both sides were hopeful. The Negro forces felt reasonably certain they had Douglas, Black, and Burton; the State attorneys thought they had impressed Jackson, Minton, Frankfurter, and probably Clark. Vinson and Reed were question marks. It was anticipated that a decision would be handed down by a divided court some time in March or April.

Instead, time ran on until June 8, 1953, when the court, unable to reach any decision on which a majority of the court could agree, set the case for reargument on five questions. Two of the questions were technical in nature: Assuming it were decided that segregation in itself violates the Fourteenth Amendment, how should decrees be formulated? How should the cases be handled on remand to the lower courts? The other three questions went to the very heart of American constitutional law.

_Question 1: What evidence is there that the Congress which
submitted and 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?_

The Supreme Court posed this first question, in theory at least, for one reason only: Its object was to determine whether the power to operate racially separate schools ever had been prohibited to the States _by the Constitution_; for if this power had not been prohibited to the States by the Constitution, it was theirs to exercise respectively, for good or ill. (It was conceded that the power never had been prohibited to them by any law of the United States adopted pursuant to the Constitution). Obviously, nothing in the Constitution possibly could prohibit this power to the States except Section 1 of the Fourteenth Amendment. This section imposes three prohibitions on the States: (1) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; (2) nor shall any State deprive any person of life, liberty, or property without due process of law; (3) nor deny to any person within its jurisdiction the equal protection of the laws.

In point of fact, it was only the third of these prohibitions that concerned the court. (A right to attend school in any particular State is not a privilege of a “citizen of the United States,” but of a citizen of the State in question; and only by rather far-fetched reasoning could it be contended that by placing white children in one school and Negro children in another school, a State was depriving any person of life, liberty, or property without due process of law. From the beginning, the plaintiffs’ case rested in an assertion that equal protection had been denied the Negro pupils.) How was the court to be advised if this provision of the Fourteenth Amendment prohibited to the States the power to operate racially separate schools? Only one procedure is known to the law; it is the procedure used by the Supreme Court and by other courts from the very beginning of the Republic: _It is to determine the intent of the framers._ What did the Congress and the ratifying States mean by the Fourteenth Amendment? In terms of racially separate public schools, what did they intend the amendment to accomplish? What was their understanding? In construing a written Constitution, an inquiry into intent is paramount. Cooley’s _Limitations_ states the rule in this fashion:

A cardinal rule in dealing with written instruments is that
they are to receive an unvarying interpretation, and that their
practical construction is to be uniform. A Constitution is not
to be made to mean one thing at one time, and another at some
subsequent time when the circumstances may have so changed as
perhaps to make a different rule in the case seem desirable. A
principal share of the benefit expected from written Constitutions
would be lost if the rules they established were so flexible as
to bend to circumstances or be modified by public opinion. It is
with special reference to the varying moods of public opinion,
and with a view to putting the fundamentals of government beyond
their control, that these instruments are framed; and there can be
no such steady and imperceptible change in their rules as inheres
in the principles of the common law. These beneficent maxims of
the common law which guard person and property have grown and
expanded until they mean vastly more to us than they did to our
ancestors, and are more minute, particular, and pervading in their
protections; and we may confidently look forward in the future
to still further modifications in the direction of improvement.
Public sentiment and action effect such changes, and the courts
recognize them; but a court or legislature which should allow a
change in public sentiment to influence it in giving construction
to a written Constitution not warranted by the intention of its
founders, would be justly chargeable with reckless disregard of
official oath and public duty.... What a court is to do, therefore,
is to declare the law as written, leaving it to the people
themselves to make such changes as new circumstances may require.
The meaning of the Constitution is fixed when it is adopted, and it
is not different at any subsequent time when a court has occasion
to pass upon it.

Chief Justice Taney made the same point in the _Dred Scott_ case (19 Howard 393). It had been argued (this was in 1857) that public attitudes had changed enormously toward the Negro since the adoption of the Constitution sixty-eight years earlier. But should this shift in public attitude induce the court “to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted”? Taney thought such an argument “altogether inadmissible” in any tribunal called upon to interpret the Constitution:

If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended;
but while it remains unaltered, it must be construed now as it was
understood at the time of its adoption. It is not only the same
in words, but the same in meaning, and delegates the same powers
to the government, and reserves and secures the same rights and
privileges to the citizen; and as long as it continues to exist
in its present form, it speaks not only in the same words, but
with the same meaning and intent with which it spoke when it came
from the hands of its framers, and was voted on and adopted by the
people of the United States. Any other rule of construction would
abrogate the judicial character of this court, and make it the mere
reflex of the popular opinion or passion of the day. This court was
not created by the Constitution for such purposes.

Many other authorities, over a span of generations, have said substantially the same thing about the necessity of courts’ holding steadfastly to the demonstrable intention of a constitutional provision. “The ultimate touchstone of constitutionality,” Frankfurter once asserted, “is the Constitution itself and not what we have said about it” (306 U. S. 491). Hughes urged his colleagues not to be swayed by arguments that extraordinary events may justify abandonment of the rule: “Extraordinary conditions do not create or enlarge constitutional power” (245 U. S. 495). Douglas, dissenting in _New York_ v. _the United States_ (326 U. S. 572), sternly lectured his brothers on their obligations in this regard; when a constitutional rule is to be fashioned that undermines the long-understood sovereignty of the States, he said, it ought never to be done by judicial construction: “Any such change should be accomplished only by constitutional amendment.”

This solid principle of constitutional law was in the court’s mind that day in June 1953 when it asked for reargument in the School Segregation Cases. What happened to the principle thereafter is sadly apparent: The court tossed it summarily to one side. But briefly, at least, the court recognized that in constitutional cases, clocks must always be turned back.

The NAACP, on behalf of the Negro plaintiffs, did its dead-level best to come up with some history to support its case. The story of the plaintiffs’ exertions was confessed on December 28, 1961, by Professor Alfred H. Kelly, of Wayne State University in Detroit, in an address before the annual meeting of the American Historical Association in Washington. Excerpts from his address were reprinted in the _U. S. News & World Report_ of February 5, 1962. They provide a fascinating, and a sobering, revelation of what Negrophile zeal can do to an honest man.

“One day in early July, 1953,” Professor Kelly began, “I received a letter from Mr. Thurgood Marshall.”

Marshall wanted Professor Kelly to prepare a research paper that would support the NAACP’s answer to the first question posed by the court. At stake was the venerable “separate but equal” rule, to which Professor Kelly, as a person, was deeply opposed. Marshall explained that the rule was crumbling and about to fall; but if the rule were to be overthrown after all these years, “it would entail a piece of judicial lawmaking which could be justified only by a philosophy of extreme judicial activism--and this at the hands of a Court wherein several expressed their disapproval of judicial activism and lawmaking by Court-made fiat.” But if this revolution in the legal status of the Negro were to be achieved, the attempt had to be made--and Dr. Kelly was ready to help make it. After all, both the lawyers and the scholars at work on the case agreed that the old rule had to be disposed of--but how? Dr. Kelly paraphrased their dilemma:

We would like to dispose of the Plessy rule, for once and for
all....

But we are fearfully embarrassed by the apparent historical
absurdity of such an interpretation of the Fourteenth Amendment and
equally embarrassed by the obvious charge that the Court will be
“legislating” if it simply imposes a new meaning on the Amendment
without regard to historical intent.

How to escape from this embarrassment? Why, historians must produce for the NAACP a plausible historical argument to justify the court in pronouncing (a) that the intent of the Fourteenth Amendment in this regard was unclear, or (b) that the amendment really had been intended, all along, to abolish school segregation, or at least to sanction its abolition by judicial fiat.

So Dr. Kelly went to work. As a constitutional historian, he acknowledged what the South’s attorneys were to contend, that the Fourteenth Amendment was the direct outgrowth of the Civil Rights Act of 1866. He did what a Southern lawyer or anyone else would do under the circumstances: He went to the _Congressional Globe_ for the first session of the Thirty-ninth Congress of 1866 and read the debates himself. To his intense dismay, he found the _Globe_ “had a good deal to say about school segregation.” And at first blush, “most of what appeared there looked rather decidedly bad....” Indeed, it looked as if John W. Davis, arguing the case for the South Carolina defendants, “would win the historical argument hands down!”

But Dr. Kelly spat on his hands and went to work. In the course of time, by his own candid and tortured admission, “I ceased to function as a historian, and, instead, took up the practice of law without a license.”

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:

What do these terms mean? Do they mean that in all things civil,
social, political, all citizens, without distinction of race or
color, shall be equal? By no means can they be so construed....
_Nor do they mean that ... their children shall attend the same
schools. These are not civil rights or immunities._ [Emphasis
added.]

The Civil Rights Bill passed the House by 111-38 on March 13; it was vetoed on March 27, and passed over the veto on April 9.

These dates are important. Late in February 1866, the Stevens Committee had brought into the House one draft of a proposed Fourteenth Amendment. It had been debated, and then sent back for more work. On April 21, a new draft came before the committee. On April 25, amendments were approved in committee that put the amendment in the form in which it finally was to become part of the Constitution. These changes wrote into Section 1 new prohibitions upon the powers of the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

When the proposed constitutional amendment reached the floor of the House on May 8, both its friends and its foes reached remarkable agreement on the amendment’s primary purpose: to nail into the Constitution the Civil Rights Act of 1866 that on April 9 had been passed over the President’s veto. Stevens reminded his radical colleagues that a mere law always was subject to repeal by a majority of the House and Senate: “And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed.” An opponent of the resolution, Rogers of New Jersey, said the Stevens measure “is no more than an attempt to embody in the Constitution of the United States that outrageous and miserable civil rights bill....”

On the Senate side, when the resolution came there for debate on May 23, the same view was taken. Howard of Michigan, in charge of the paper, said the object was “to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power.” Davis of Kentucky and Henderson of Missouri agreed. On June 8, the Senate voted in favor of the resolution, 33-11, with five Senators not voting; and on June 13 the House, which then had 184 members, completed action by concurring in the Senate amendments, 120-32, with 32 not voting. The House margin was four votes short of the two-thirds required under the Constitution for submitting an amendment, but the resolution was declared to be passed anyhow.

While all this was going on, other matters of course were coming before the Congress. One such matter was a bill passed in the Senate on May 21, providing for segregated schools in the District of Columbia. A companion bill, introduced in April, adopted in May, made effective in July, appropriated funds to the Negroes’ segregated schools. And year after year, from that time on until 1954, the Congress continued to provide for racially separate schools in the District of Columbia.

Not one iota of evidence can be adduced from the annals of Congress in 1866 to show that any responsible member of the House or Senate believed the Fourteenth Amendment in any fashion would affect the operation of segregated schools in the States. All that Negro counsel could produce in their reargument on the point in 1953, despite the desperate labors of Dr. Kelly and his associates, were some generalities, some sweeping statements of ideals, and other nebulous expressions on the part of radical abolitionists on the one hand and apprehensive States’ Righters on the other. It is plain that the Stevens-Sumner group won from the Thirty-ninth Congress two compromise instruments, a statute and a constitutional amendment, both intended to guarantee to the Negro the essential civil rights spelled out in the Freedmen’s Bill and in the Civil Rights Act--to sue and be sued, to own and inherit property, and the like. “The right to go to school,” as Senator Trumbull of Pennsylvania was to say in 1872 in debating the General Amnesty Act, “is not a civil right and never was.”

_2. Actions of the State legislatures and constitutional conventions._ The proposed Fourteenth Amendment to the Constitution went out to the States on June 18, 1866. Connecticut ratified on June 30, New Hampshire on July 6, Tennessee on July 19. New Jersey and Oregon, both of whom later were to rescind their actions, ratified in September. Then came a jolt: On October 27, Texas flatly rejected the proposed amendment, by a vote of 70 to 5 in the House and 27 to 1 in the Texas Senate. Vermont ratified on October 30, but on November 1 Georgia rejected by 147-2 and 38-0 in its House and Senate. Then, in rapid succession, Arkansas, Florida, North Carolina, and South Carolina spurned the amendment. In January 1867, Virginia, Mississippi, Kentucky, and Maryland rejected. Early in February, Delaware and Louisiana turned it down also.

On March 2, 1867, an infuriated Congress enacted over Johnson’s veto a law that seems incredible by any standpoint of constitutional law. This “Act to Provide for the More Efficient Government of the Rebel States” further defined the districts that had been created in the former Confederacy by earlier Reconstruction acts. Section 5 of the Act fixed two requirements for readmission of the Southern States to full standing in the Union. The first condition was that each of the States adopt a new State Constitution; the second was that, at the first legislature to be held after adoption of the new Constitution, each State must ratify the Fourteenth Amendment. Delegates to the State constitutional conventions were to be chosen by all male citizens regardless of race, except felons and those who had participated in the “rebellion.” No Confederate veteran who earlier had been a member of a State legislature, or held any other office under the government of a Southern State, could become a candidate for the new legislatures to be elected.

With that vindictive and extortionate act, military government settled upon the South and all semblance of free republican government vanished. With no alternative but to submit or remain under the sword, the Southern States accepted the amendment. Arkansas ratified in April 1868, Florida on June 9, North Carolina, South Carolina, Alabama, and Louisiana in July. Meanwhile, Ohio on January 13, 1868, had undertaken to rescind its ratification of the amendment, and New Jersey, on March 25, had done the same thing. In both States, recently the bitter foes of the South, the new amendment was denounced as unconstitutionally approved in the House of Representatives and unconstitutionally demanded of the Southern States. (It was several months later, in October 1868, that Oregon also attempted to rescind its ratification.)

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.