Chapter VI: Part II: The Law

I think the proper course is to recognize that a State legislature
can do whatever it sees fit to do unless it is restrained by some
express prohibition in the Constitution of the United States or of
the State, and that courts should be careful not to extend such
prohibitions beyond their obvious meaning by reading into them
conceptions of public policy that the particular court may happen
to entertain.

--Oliver Wendell Holmes.

I

On May 17, 1954, the Supreme Court of the United States handed down its unanimous decision in the _School Segregation Cases_. By general agreement, this decision is regarded as the court’s most momentous opinion of this century; indeed, only the court’s opinion of 1856 in the _Dred Scott_ case is thought to have had greater impact upon the American people or upon the course of historic events. Because of its destructive effect upon the stability of law and the permanence of long-established institutions, the school decision, in my own view, surpassed _Scott_ v. _Sanford_ in the area of jurisprudence gone mad. In one stroke, the Warren court violated those precepts of judicial restraint and constitutional interpretation which it most frequently has insisted on in the past; it transformed itself into a super-legislature--more, it usurped the functions of constitutional amendment that lie with not fewer than three-fourths of the States. Abandoning law, the court wedded sociology; discarding eighty years of unbroken precedent, members of the court substituted their own notions of psychology and moral fitness for the plain and palpable meaning of the Fourteenth Amendment in terms of racially separate public schools. And having prohibited unto the States the exercise of a power the States had been exercising with judicial approval since 1868, the court capped its day’s work by decreeing an end to segregation in schools of the District of Columbia. This latter stroke was achieved by judicial _coup de main_ that left even the court’s best friends embarrassed; what happened, Ralph Catterall has remarked, is that the court declared “unthinkable” that which had been universally thought for 166 years.

This is the indictment the South brings against the Warren court for _Brown_ v. _Board of Education_ and the subsequent judicial progeny of that May afternoon. In one sense, it doubtless is futile to reargue _Brown_; as the court defiantly indicated by its unprecedented action in signing every judge’s name in 1958 to _Cooper_ v. _Aaron_, the principles it boldly put forward in 1954 are not to be reconsidered so long as the court’s present members may live. But it is important, nonetheless, that the South’s protest be understood and regularly renewed, lest it be supposed that with the passage of time the court’s action has been condoned and forgiven.

The South’s position rests upon a foundation of law, history, and constitutional construction as old as the Union itself. Ours is the ancient doctrine of State powers--not of State rights, but of State _powers_. This principle is the _élan vital_ of the American Republic; it takes in the whole body of governmental and philosophical principles by which American greatness has been achieved. The doctrine embraces that delicate balance in State and Federal relations which keeps the whole watchworks moving; it depends for its success upon the right of the States to be wrong--to be foolish, to be unwise, to be out of step, to do “those acts and things which independent States may of right do,” simply because they are States. And unless this delicate balance is preserved, and the rightful powers of the States guarded from continued encroachment, the whole organism of American government will be subtly transformed, without the expressed consent of the people governed, from the federalism that has provided its greatest strength to an immoderate centralism that will prove its greatest weakness. In maintaining its case, the South is no longer fighting the question of separate schools or even a question of race relations at all; it is contending, rather, for the preservation of an American plan of value to all the States and all the people. What is lost to the Southern States, in terms of political powers, is lost to all States; and the imposition of court-ordered prohibitions in one field makes the next imposition that much easier. By the court’s decree of 1954, the South’s largest, most expensive, most important, most cherished public institutions--our public schools--were thrown into potential jeopardy and chaos. Whose most cherished institutions will be next?

II

The South’s legal position in the school controversy is essentially a constitutional position; it cannot be fully understood without some understanding of how the Southerner views the Constitution. He views it through the eyes of the States. These are to him, as Oliver Wolcott of Connecticut called them, “the pillars which uphold the general system.”

Most readers of this essay, it may be assumed, have a good working knowledge of the Constitution. Some will not; they may never have read the Constitution, line by line and word by word; they know its provisions vaguely, not explicitly, and the trail that led from the creation of States to the formation of a Union is as remote to them as a path through the Pleiades. Hence this hornbook review. And if Jefferson’s Declaration of Independence seems irrelevant to the South’s position in _Brown_ v. _Board of Education_, it is only because too much emphasis has been put on the Declaration’s first few lines and not enough on its last.

Perhaps in the divine plan, all men are indeed “created equal.” Here on earth they patently are not. Jefferson’s opening hyperbole was never meant to be taken literally. But he did mean for the closing lines to be taken, at international law, for precisely what they were--a declaration that the colonies once tied to Britain, were now _free and independent States_--

and that as Free and Independent States, they have full power to
levy War, contract Alliances, establish Commerce and to do all
other Acts and Things which Independent States may of right do.

In that moving Declaration, nothing was said of the birth of a “nation.” In truth, nothing was said of a “nation” in the Articles of Confederation, or in the Constitution that succeeded the Articles. The Declaration was the act of “one People,” but the political aim in the decade that followed the Declaration of 1776 was to form a more perfect Union--a union of separate, sovereign States, acting jointly for some purposes, but acting individually for others. And the political genius of the founding architects who designed this structure is the very genius so widely disdained by the busy planners and amateur carpenters of our own time.

What did the Declaration assert the function of government to be? Why is it that governments are instituted among men? The answer, in Jefferson’s phrase, is that governments are instituted among men to _secure rights_--not to grant rights, which a free people have to begin with, but only to secure rights. And where does government derive its powers in this regard? It derives its just powers “from the Consent of the Governed,” and from no other source. How is this consent manifested? The answer lies in the whole of the republican process, which in the United States is a process exercised entirely through the actions of the people _in their States_.

The colonists who cast off the yoke of Great Britain did not propose to take on a fresh yoke of their own contriving in its place. The sum of their charges against the Crown was that George III had sought to establish “an absolute tyranny over these States.” He had “erected a multitude of New Offices and sent hither Swarms of Officers to harass our People and eat out their Substance.” In the formation of a new and independent government, the founding fathers were determined to minimize the opportunities for new tyranny to come into power. And toward that end, they were determined that the powers of government should be fragmented, and partitioned off, and kept securely under leash. They feared excessive “bigness” for the best of all reasons, that excessive bigness ought always to be feared when the liberties of a people are at stake. They sought to provide a check here, a balance there, a string of unequivocal prohibitions somewhere else. They insisted always upon a reservation to the people themselves of powers ungranted. These were the prudent goals the greatest political minds of our country sought to achieve.

Their first handiwork, the Articles of Confederation, is too much denounced and too little read. “This despised government,” said Patrick Henry, defending the Confederation, “merits, in my opinion, the highest encomium: It carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses; and shall a government which has been thus strong and vigorous be accused of imbecility and abandoned for want of energy?” It is popularly supposed that when the delegates assembled at Philadelphia in 1787, they tossed the whole of the Articles unceremoniously aside, and set out from scratch to compose a Constitution. They did nothing of the sort. The revisions they made were fundamental, of course, but the principles of political power under which the United States live today are in essence the principles embodied in the Articles of Confederation.

Here in the Articles are to be found many of the phrases, and indeed, many of the specific provisions, that endure in the Constitution. The genesis of the Tenth Amendment appears as the first substantive clause in the compact: “Each State retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

Article III bound the States in a firm league of friendship “for their common defense, the security of their Liberties, and their mutual and general welfare”; the phrases were to reappear in the preamble to the Constitution of 1787. Article IV guaranteed to the inhabitants of each State “all privileges and immunities of free citizens in the several States,” a guarantee carried over to Article IV, Section 2. The extradition of fugitives from one State to another, the rule of “full faith and credit” among the States, the immunity of Congressmen, and the flat prohibition upon the granting of titles of nobility all stem from the Articles. It often is forgotten, but the States laid upon themselves in the Articles of Confederation many of the prohibitions they were to accept a few years later in the Constitution: No States were to enter into any compact without the consent of Congress; no States were to keep troops or ships of war in time of peace without the consent of Congress “unless such State be actually invaded by enemies, or ... the danger is so imminent as not to admit of delay,” a provision echoed to this day, almost exactly, in Article I, Section 10. The powers vested in the Congress under the Articles of Confederation also have a familiar ring--to coin money, fix standards of weights and measures, regulate trade, establish post offices, borrow money, build and equip a navy, and appropriate funds “for defraying the public expenses.”

But the Articles of Confederation, for all the thoughtful provisions they provided as progenitors of the Constitution, had serious and admitted defects as well. If there was to be something more than a “firm league of friendship” among sovereign States, a government had to be created capable of acting upon individuals as such. The most devoted friend of “States’ rights” willingly concedes that the “more perfect Union” provided for in the Constitution of 1787 created a nation, even if the Constitution described it only as a “Union,” or as “the land.” Obviously, the supremacy clause in Article VI was something new, not in degree, but in kind: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”

That clause alone, coupled with Article III and with John Marshall’s effective establishment of the principle of judicial review, created the “one out of many” that is the American Republic. Yet the objective student of public affairs who would understand the South’s classic and traditional position in advocacy of States’ rights should devote some thoughtful attention to certain aspects of the Constitution that have remained unchanged from the very beginning of the Union, surviving civil war and the growth of nearly two centuries--aspects that remain unchanged to this day.

At the risk of being tedious, it is necessary to examine the Constitution as it is, and not as centralizers might wish it to be. This is our organic law, the basis of our public institutions; the spirit that lives and breathes in it is the American spirit, and the great beams and foundation stones of this written compact support the whole structure of our government. The few paragraphs that follow may seem elementary. They are, in fact, essential to an appreciation of what was wrong with _Brown_ v. _Board of Education_ in 1954.

The preamble itself offers the first source of misunderstanding. It begins, of course, “We the people of the United States,” and for 175 years superficial students of the Constitution have been crying triumphantly that the opening three words prove the existence of some national democracy: “We, the people.” The demonstrable facts prove no such thing. On Monday, August 6, 1787, the Philadelphia convention received its first full draft of a Constitution. The preamble submitted by South Carolina’s John Rutledge on that day read as follows: “We the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.” The preamble in this form was adopted the following day without dissent, and indeed without debate. It was not until September 10, when the weary delegates were ready to have the final document whipped into form by a committee on style, that the presumptuousness of the draft preamble became apparent. James Wilson of Pennsylvania made the point that it would be “worse than folly to rely on the concurrence of Rhode Island.” The State of New York, he observed, “has not been represented for a long time past in the Convention.” North Carolina’s agreement was most uncertain. Many individuals from other States had spoken against the plan. And though Wilson was here addressing himself to a specific proposal that the draft Constitution be submitted first to the Congress, rather than directly to the States, his remarks made obvious good sense to members of the committee on style. They prudently recast the preamble to omit all mention of specific States--how could they know which nine would bind themselves by ratification?--and the preamble emerged as we know it. The point is that there was not the slightest doubt in the minds of the delegates at Philadelphia, or in the minds of the State conventions thereafter, that “We the people” meant, as Madison said, “We the people of the States as thirteen sovereignties.”

The first eight words of Article I are important: “All legislative powers herein granted shall be vested....” We are dealing, at the outset, as the careful choice of a noun makes clear, with _powers_, and with a specific kind of power: _legislative_ power. These powers are “granted _herein_,” which is to say, granted by the ratifying States in the Constitution itself, and in no other place; and these powers are to be “vested” (a most judicious verb) in the Congress.

In Section 2 of Article I, the first of more than ninety references to “the States” appears: The House of Representatives is to be composed of members chosen every second year “by the people of the several States.” No congressional district ever may extend across a State line, for “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” Moreover, every Representative must be “an inhabitant of that State in which he shall be chosen.” Then follows the enumeration of the States to whom the Constitution would be submitted, if they wished to enter the Union: The State of New Hampshire shall be entitled to choose three members of the House, Massachusetts eight, and so forth.