VI

The great principle, advanced by the learned and eloquent advocate of the plaintiff, is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on the laws adapted to their respective relations and conditions.Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises, whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises, whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

The Massachusetts court faced the issue squarely, and concluded that separate schools did no violence to any civil right or privilege held by the colored children. The court’s inquiry was directed toward a single point: Was this a reasonable classification? Had the school trustees abused their responsibility? After great deliberation, the trustees had concluded that the good of both white and colored children would be promoted by separate primary schools. Said the court: “We can perceive no ground to doubt that this is the honest result of their experience and judgment.” It was urged that suchseparation tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. Said the Massachusetts court:

This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence....

The Massachusetts court refused to say that the trustees’ decision in behalf of racially separate schools was capricious or arbitrary; such a decision was within their realistic prerogatives, and it denied no child his “civil rights.” The court spoke long before the Civil War, long before there was a Fourteenth Amendment; but the universal understanding of the framers of the Fourteenth Amendment was that the amendment neither created nor secured any “new” rights of citizens of the United States—it merely defined and secured, for the emancipated Negro, the civil rights enjoyed by white citizens all along. Serious students of the subject may wish to confirm this fromII Am. Jur. Const. Laws(Sect. 255, pages 987-97). The Massachusetts opinion has great weight in establishing, as the formal expression of an abolitionist Northern State, that “civil rights” did not include any right to attend racially integrated schools. If this is of merely academic importance today, the court’s opinion inRobertsv.Bostonis significant in determining what the framers and adopters of the Fourteenth Amendment in 1866 understood the amendment to mean. They did not mean that it would afford the Negro citizen any more identity of access to public facilities than the Massachusetts court was willing to agree to in 1849.

Now, let us leap ahead. The Fourteenth Amendment was proposed in 1866 and declared ratified in 1868; throughout this period, such radical abolitionists as Sumner and Sewardwere crying for a broad interpretation of the amendment. In Ohio, during the December term of the State Supreme Court in 1871, a suit came on to be heard from William Garnes against John W. McCann and other members of the school board in Franklin County.This is Ohio.Its Senators Wade and Sherman cast their votes in the thirty-ninth Congress in favor of the amendment. The State court surely was familiar with their views. Garnes’ complaint was that under State laws of 1853 and 1864 his three children had been denied admission to schools in nearby Norwich; instead, his children were required to attend a Negro school in Hilliard. He brought suit, based entirely on the Fourteenth Amendment, contending that the amendment prohibited Ohio from adopting any school law that permitted or required segregation. His was the first direct test of the intention of the framers and adopters.

The Ohio court (21 Ohio State 198) gave the petitioner’s argument scant attention. On the theory that Garnes, as a citizen of the United States, might have been denied certain privileges and immunities, the court observed briefly that the amendment went only to “such privileges or immunities as are derived from, or recognized by, the Constitution of the United States.” Any broader construction would open a field of limitless conjecture “and might work such limitations of the power of the States to manage and regulate their local institutions and affairsas were never contemplated by the Amendment.” [Emphasis added.]

No such construction ever had been intended. The privileges and immunities of a school system “are derived solely from the constitution and laws of the State.” If Ohio were to abolish all public schools, it scarcely could be claimed that a “citizen of the United States” could compel Ohio to re-establish them. This being so, Garnes could demand no more than equal protection under the laws of Ohio. And this had not been denied him. His children were assured their “equal proportion of the school fund.” (The court’s assertion on this score is important to establish the point that the doctrine of “separate but equal” arose at the very outset of litigation on school segregation.) This was all Garnes was entitled to demand. “A classification of theyouth of the State for school purposes, upon any basis which does not exclude either class from equal school advantages, is no infringement of the equal rights of citizens secured by the constitution of the State.” And the Fourteenth Amendment, at most, affords colored citizens only an additional guaranty of rights already secured to them by the State Constitution.

In brief, the plaintiff Garnes could not validly complain that the privileges of his children were abridged, or that equal protection of the law had been denied them. “Equality of rights does not involve the necessity of educating white and colored persons in the same school, any more than it does that of educating children of both sexes in the same school.” And the court added:

Any classification which preserves substantially equal school advantages is not prohibited by either the State or Federal Constitution, nor would it contravene the provisions of either. There is, then, no ground upon which the plaintiff can claim that his rights under the Fourteenth Amendment have been infringed.

This view of the Fourteenth Amendment, stated by the Supreme Court of Ohio in 1871, was accepted the following year by the United States Circuit Court for the Southern District of Ohio. InUnited Statesv.Buntin(10 Fed. 730), Circuit Judge Baxter summarized theGarnescase as a holding that segregation is “within the constitutional discretion of the legislature, and that the separate education of the whites and blacks ... is no wrong to either.” Said the Federal Circuit Court in Ohio: “I concur in and adopt this decision as a correct exposition of the Constitution.”

The same question twice presented in Ohio cropped up again in 1872 in Nevada. Surely Nevada was no Southern State, nor could the views of its State Supreme Court have been tainted by any Confederate conspiracy. Both of Nevada’s Senators, Nye and Stewart, had voted in 1866 in favor of the amendment. But inStoutmeyerv.Duffy(7 Nev. 342), the State court found nothing whatever in the Fourteenth Amendment to compel the admission of a seven-year-oldNegro boy to the white schools of Ormsby County. His denial was a violation of State law, said the court, but not of Federal law. A concurring justice thought it “utterly untenable” that segregated schools, as such, should be held a violation of the Fourteenth Amendment.

In January 1874, the same question arose in California. It cannot be suggested seriously that the Supreme Court of California inWardv.Flood(48 Calif. 36) was then acting in some joint conspiracy with the invidious Alabamans. Young Mary Frances Ward demanded admission to the white Broadway Grammar School in San Francisco; Principal Noah F. Flood, acting under State law, declined. Was his action a violation of the Fourteenth Amendment? Plainly not, said the California court. In the mere fact that the races are separated in the public schools “there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense.”

Eleven months later, in November 1874, the same question came up in Indiana. Who would regard Indiana as a Southern State? The case wasCoryv.Carter(48 Ind. 327). Here a Negro resident of Lawrence township in Marion County demanded admission of his grandchildren to the nearest local schools. An act of Indiana in May 1869, nearly a year after ratification of the Fourteenth Amendment, required their education at nearby Negro schools. Was the State act, as the petitioner complained, in violation of the new amendment to the Constitution? Not at all, said the Supreme Court of Indiana. The new Fourteenth Amendment was not intended to prohibit to the State the power of operating separate schools for white and Negro children. This was a question of “domestic policy,” to be settled by State law:

In other words, the placing of the white children of the State in one class and the Negro children of the State in another class and requiring these classes to be taught separately, provision being made for their educationin the same branches, with capable teachers, and to the extent of their pro rata share in the school revenue, does not amount to a denial of equal privileges to either, or conflict with the open character of the system required by the Constitution. The system would be equally open to all. The tuition would be free. The privileges of the schools would be denied to none. The white children go to one school, or to certain of the schools in the system of common schools. The colored children go to another school, or to certain others of the schools in the system of common schools.... If there be cause of complaint, the white class has as much, if not greater cause than the colored class, for the latter class receive their full share of the school revenue, although none of it may have been contributed by such class....

And in a telling section of its opinion, the Indiana court went on to make the point that Congress itself had fixed the spirit and meaning of the Fourteenth Amendment by adopting legislation requiring racially segregated schools in the District of Columbia. The court called attention to the dates of such legislation: July 23, 1866; July 28, 1866; March 3, 1873. These acts of Congress were contemporaneous with adoption of the Fourteenth Amendment. It seemed to the Indiana court unthinkable that the Congress should have fixed some standard for the States less than that required of the central government, and surely Congress itself, having framed the amendment, knew what was intended by the amendment: “This legislation of Congress continues in force ... as a legislative construction of the Fourteenth Amendment, and as a legislative declaration of what was thought to be lawful, proper, and expedient under such amendment, by the same body that proposed such amendment to the States for their approval and ratification.”

Now, to maintain the chronology, consider one case from a Southern State:Arnold Bertonneauv.Board of Directors of[New Orleans]City Schools(3 Woods 177, 3 Fed. Cases 294, Case No. 1,361). This was decided by a Federal Circuit Court of Appeals in November 1878. The Fourteenth Amendment was then ten years old. The question,brought by the Negro father of two boys, seven and nine years old, was whether under the Fourteenth Amendment they were entitled to admission to a white school three blocks from their home on Rampart Street. A Negro school was also conveniently available. The Reconstruction Constitution of Louisiana then carried the provision, earlier quoted, that no separate schools should be established for any race under State law. But the Federal court had no concern for the State Constitution. Its sole concern was with the United States Constitution, and Circuit Judge William B. Woods found no violation of it in the schools of the Vieux Carré. Woods, incidentally, was an Ohioan; he had been a general in the Union Army; in 1880 he was to be named by Hayes to the U.S. Supreme Court. Here he said:

Both races are treated precisely alike. White children and colored children are compelled to attend different schools. That is all.... Any classification which preserves substantially equal school advantage does not impair any rights, and is not prohibited by the Constitution of the United States. Equality of right does not necessarily imply identity of right.

One of the most frequently quoted court cases of this period arose in New York in 1883 (People, ex. rel. Kingv.Gallagher, 93 N. Y. 438). It involved a mandamus petition brought by a twelve-year-old Negro girl in Brooklyn to compel a local school principal, Gallagher, to admit her to his school despite a State law of 1864 permitting Brooklyn to maintain racially separate schools. Her suit was based squarely upon the Fourteenth Amendment. The Court of Appeals of New York wrote a long and serious opinion in dismissing her petition as groundless. The history of the amendment, said the court, “is familiar to all.” (The statement bears special emphasis: One of New York’s Senators at the time of the court’s opinion was Roscoe Conkling, a leading lawyer and abolitionist who had been tendered the office of Chief Justice. New York’s two Senators at the time the amendment was submitted in 1866, Harris and Morgan,both had supported the resolution. When the court said the history of the Fourteenth was “familiar to all,” it doubtless had in mind the opinions and interpretations of the State’s own Senators.) In the view of the court, the object of the amendment was to secure for the Negro people civil rights equal to those enjoyed by white persons. But the Negroes were not to have any greater or more extensive civil rights than others. As citizens of the United States, their “privileges and immunities” were to be identically protected. As citizens of the individual States, they were to have whatever equal State rights might be defined in those States—and the privilege of receiving an education at the expense of the State, being created and conferred solely by the law of the State and subject to its discretionary regulation, was a privilege plainly within the regulation of the State. So far as “privileges and immunities” were concerned, the plaintiff had nothing to complain about. But the court went on to add some thoughtful comments on the general subject of equal protection, and these merit a careful reading.

But we are of the opinion that our decision can also be sustained upon another ground, and one which will be equally satisfactory as affording a practical solution of the questions involved. It is believed that this provision will be given its full scope and effect when it is so construed as to secure to all citizens, wherever domiciled, equal protection under the laws and the enjoyment of those privileges which belong, as of right, to each individual citizen. This right, as affected by the questions in this case in its fullest sense, is the privilege of obtaining an education under the same advantages and with equal facilities for its acquisition with those enjoyed by any other individual. It is not believed that these provisions were intended to regulate or interfere with the social standing or privileges of the citizen, or to have any other effect than to give to all, without respect to color, age or sex, the same legal rights and the uniform protection of the same laws.In the nature of things there must be many social distinctions and privileges remaining unregulated by lawand left within the control of the individual citizens, as being beyond the reach of the legislative functions of government to organize or control. The attempt to enforce social intimacy and intercourse between the races, by legal enactments, would probably tend only to embitter them, and produce an evil instead of a good result. [CitingRobertsv.City of Boston.]As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such relations may arise, but this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized and performed all of the functions respecting social advantages with which it is endowed.

In the nature of things there must be many social distinctions and privileges remaining unregulated by lawand left within the control of the individual citizens, as being beyond the reach of the legislative functions of government to organize or control. The attempt to enforce social intimacy and intercourse between the races, by legal enactments, would probably tend only to embitter them, and produce an evil instead of a good result. [CitingRobertsv.City of Boston.]

As to whether such intercourse shall ever occur must eventually depend upon the operation of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent of the persons between whom such relations may arise, but this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized and performed all of the functions respecting social advantages with which it is endowed.

The New York court went on to analyze the “startling results” that would follow from the assertion that racial separation was intended to be prohibited by the Fourteenth Amendment. The same line of argument would prohibit classifications by sex or age, and surely this was not intended. No. Plainly, said the court, the Brooklyn school authorities had the power, “in the best interests of education, to cause different races and nationalities, whose requirements are manifestly different, to be educated in separate places.” The court added:

We cannot see why the establishment of separate institutions for the education and benefit of different races should be held any more to imply the inferiority of one race than that of the other, and no ground for such an implication exists in the act of discrimination itself. If it could be shown that the accommodations afforded to one race were inferior to those enjoyed by another, some advance might be made in the argument, but until thatis established, no basis is laid for a claim that the privileges of the respective races are not equal....A natural distinction exists between those races which was not created, neither can it be abrogated, by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race or an abridgment of its civil rights. The implication that the Congress of 1866, and the New York State legislature of the same year, sitting during the very throes of our civil war, who were respectively the authors of legislation providing for the separate education of the two races, were thereby guilty of unfriendly discrimination against the colored race, will be received with surprise by most people and with conviction by none....

A natural distinction exists between those races which was not created, neither can it be abrogated, by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race or an abridgment of its civil rights. The implication that the Congress of 1866, and the New York State legislature of the same year, sitting during the very throes of our civil war, who were respectively the authors of legislation providing for the separate education of the two races, were thereby guilty of unfriendly discrimination against the colored race, will be received with surprise by most people and with conviction by none....

And the New York court went on to make the same point earlier made in Indiana, that “the highest authority for the interpretation of this amendment is afforded by the action of those sessions of Congress which not only immediately preceded, but were also contemporaneous with, the adoption of the amendment in question.” If Congress could establish schools exclusively for Negroes, as it repeatedly had done, no good reason could be suggested why a greater restriction should apply to the States. “If regard be had to that established rule for the construction of statutes and constitutional enactments which require courts, in giving them effect, to regard the intent of the law-making power, it is difficult to see why the considerations suggested are not controlling upon the question under discussion.”

That was New York speaking, only fifteen years after ratification of the amendment, in 1883. DidKingv.Gallaghersay nothing at all, in 1954, to the Supreme Court of the United States? Was this opinion not directly responsive to the court’s question of whether the States understood or contemplated that the Fourteenth Amendment was intended to prohibit separate schools?

To complete the record of school decisions directly in point, prior to the Supreme Court’s opinion of 1896 inPlessyv.Ferguson, one final case should be mentioned. This wasLehewv.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 theLehewcase in Missouri brings this chronology of judicial pronouncements on racially separate schools to the Supreme Court’s famous statement inPlessy. 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—theSlaughter-House Casesof 1873 (16 Wallace 36) and theCivil Rights Casesof 1883 (109 U. S. 3). They do not deal directly with a State’spower 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 theSlaughter-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 courtdeclaring 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 rightsecured by the amendment, a State could do as it wished. Was a right to attend an integrated public school such a right? TheCivil Rights Casesdo 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 inPlessyv.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 theBrowncase 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.

And if one seeks in the judicial pronouncements of the day for independent evidence of what the Congress and the States understood and contemplated the amendment tomean the evidence is overwhelming: The power of the States to maintain separate schools was “generally, if not universally” held to be completely in accord with the Fourteenth Amendment. The seven justices who united inPlessywere all mature men at the time the amendment became effective in 1868. Edward D. White of Louisiana, the youngest, was then twenty-three, Brown of Michigan was thirty-two, Fuller of Illinois thirty-five, Field of California fifty-two, Gray of Massachusetts forty, Shiras of Pennsylvania, thirty-six, and Peckham of New York thirty. From a standpoint of constitutional law, who could have known the understanding and contemplation of the amendment better than they? They grew up with it. And in 1896, when they handed down the Plessy opinion, they were men of fifty-one to eighty, in a position to look back maturely upon twenty-eight years of political life under the Fourteenth Amendment.

The other two questions of a general nature posed by the Supreme Court in June 1953 may be dealt with more briefly. Much of the ground has been covered already. These were:

Question 2: If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the amendment(a) that future Congresses might, in the exercise of their power under Section 5 of the amendment, abolish such segregation, or(b) that it would be within the judicial power, in the light of future conditions, to construe the amendment as abolishing such segregation of its own force?

(a) that future Congresses might, in the exercise of their power under Section 5 of the amendment, abolish such segregation, or

(b) that it would be within the judicial power, in the light of future conditions, to construe the amendment as abolishing such segregation of its own force?

Question 3: On the assumption that the answers to Questions 2 (a) and (b) do not dispose of the issue, is it within the judicial power, in construing the amendment, to abolish segregation in public schools?

Question 2 (a) may best be answered by studying the Fourteenth Amendment in terms of political power. What is the Fourteenth? Obviously, it is first of all a prohibition upon the States. It is not primarily a grant of power to the Congress. Its thrust is negative: The States shall not make; the States shall not enforce; the States shall not abridge; the States shall not deprive; the States shall not deny. Section 3 carries an incidental delegation of power to the Congress, authorizing the removal of political disabilities imposed upon Confederate soldiers, and Section 5 vests in the Congress a power “to enforce, by appropriate legislation, the provisions of this article.”

Would an act of Congress prohibiting the States from maintaining racially separate schools be “appropriate legislation, enforcing the provisions of this article”? The framers of the Fourteenth Amendment did not think so. They did not regard the right to attend a particular school as a “civil right.” Well after the amendment became operative, Sumner and other abolitionist leaders in the Congress several times introduced legislation having this end; twice they got such a bill through the Senate (1872 and 1874), on tie votes broken by the Vice-President, but they were never able to get a bill through the House. And in the Civil Rights Act of 1875, an effort to prohibit racially separate schools was defeated decisively.

The power vested in Congress in the fifth section is no general grant of power. It is limited to legislation appropriate to enforcing the provisions “of this article.” And until it can be shown that one of the provisions “of this article” was intended to prohibit to the States the power to maintain racially separate schools, it cannot be shown that Congress appropriately could enact legislation having that end.

No provision of the Fourteenth Amendment imposes such a prohibition on the States. Therefore, no act of the Congress validly could seek to enforce such a prohibition.

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 thepower 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 theSlaughter-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 powertoday, 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 inthe 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 ofUnited Statesv.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 theSchool Segregation Cases, have the power to abolish segregation by placing its owncontemporary 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, inMorganv.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 theMorgancase. “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?

Mr. Justice Frankfurter has expounded many times upon the obligation upon the court never to exceed its judicial powers. The question inBoard of Educationv.Barnette(319 U. S. 634), was whether West Virginia could compel its public school children to salute the flag. Five times, the Supreme Court had held that such a requirement was not in violation of the Constitution. Now, in 1943, with the shift of two justices, the holding was reversed. Frankfurter’s eloquent dissent provides a moving statement of the philosophy by which judges should be guided in contemplating their judicial power:

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the court’s opinion, representing as they do the thought and action ofa lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.... It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.

Much as he detested the West Virginia statute, Frankfurter found it impossible to deny that reasonable legislators could have passed the flag-salute law. He was guided to this conclusion by “the light of all the circumstances” and by “the history of this question in this court.” Thirteen Justices of the Supreme Court in other years had found such laws within the constitutional authority of the States. In view of this “impressive judicial sanction,” how could the power be now prohibited to the States? In the past, said Frankfurter:

this court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called “the spirit of the Constitution.” Such undefined destructive power was not conferred on this court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution. Equally inadmissible is the claim to strike down legislation because to us as individuals it seems opposed to the “plan and purpose” of the Constitution. That is too tempting a basis for finding in one’s personal views the purposes of the Founders.The uncontrollable power wielded by this court brings it very close to the most sensitive areas of public affairs.As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantably enter social and political domains wholly outside our concern.

The uncontrollable power wielded by this court brings it very close to the most sensitive areas of public affairs.As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantably enter social and political domains wholly outside our concern.

What had become of these views on the part of Mr. Justice Frankfurter in May 1954? By that time, not merely thirteen Justices, but more than thirty members of the court over a period of fifty-eight years had upheld the constitutionality of racially separate schools. More impressive judicial sanction scarcely could be imagined. And what is to be said of an opinion, in a highly sensitive area of public affairs, not even rationalized by “the spirit of the Constitution” or the “plan and purpose” of the Constitution, but rather by “the effect of segregation on public education” and “the extent of psychological knowledge”? These provided the rationale of theBrowndecision, but Mr. Justice Frankfurter did not open his mouth in dissent.

Did the court have the power to do what it did? Mr. Justice Douglas, another of the nine, in other days had warned that long-run stability is best achieved when social and economic problems of the State and nation are kept under political management of the people. Writing in49 Columbia Law Reviewsome years ago, he observed sagely that “it is when a judiciary with life tenure seeks to write its social and economic creed into the Charter that instability is created.” In May 1954, Mr. Justice Douglas did his bit to create just that instability.

Did the court have the power? That was the essence of Question 3. It was the court’s most profound inquiry, for it probed the very soul of judicial limitation and responsibility. Serious consideration of Question 3 would have required of the judges a respect for the wisdom and integrity of scores of judges and hundreds of State and Federal legislators, all equally sworn to uphold the Constitution, who had preceded them. The question should have suggested the utmost restraint, the most selfless exercise of judicial discipline. “Is it within the judicial power, in construing the amendment, to abolish segregation in public schools?”

“What is truth?” said jesting Pilate; and would not stay for an answer.

TheSchool Segregation Casescame up for reargument before the Supreme Court on December 8, 1953. By this time, the Kansas case was moot (it is one of the many ironies of the story that the school cases should be styled asBrownv.Board of Education of Topeka, taking their name from a controversy that had been settled by the time the opinion came down), but the cases from Virginia, South Carolina, and Delaware were still hotly at issue. The cast of lawyers was the same, and again, questions from the bench seemed to indicate a continuing division within the court.

Counsel for the Negro plaintiffs, grappling with Question 1, attempted to show that the Fourteenth Amendment was intended by its framers and adopters to have a “broad, general scope.” John W. Davis and T. Justin Moore, carrying the brunt of argument for the South, relied upon the more tangible history of what actually happened in terms of racially separate schools. Davis placed particular emphasis upon the action of the Southern States in creating separate school systems, without objection from Congress, even as they ratified the amendment. Sumner and his fellow radicals might not have wanted to challenge such Northern allies as Pennsylvania and Ohio, but “if there were any place where sponsors of the amendment would have blown the bugle for mixed schools, surely it would have been in those eight States of Reconstruction legislation.”

Frankfurter kept asking the various attorneys to explain why the Congress itself never had adopted legislation to prohibit the States from maintaining racially separate schools. Defense counsel said the Congress had no power to do so; attorneys for the Negro plaintiffs said Congress had the power, but opponents of segregation never had had the votes. Frankfurter put an embarrassing question to J. Lee Rankin, who as Assistant Attorney General had joined forces with the NAACP. “Realistically,” Frankfurter suggested, “thereason this case is here is that action couldn’t be attained from Congress. Certainly it would be much stronger from your point of view if Congress had acted, wouldn’t it?”

Rankin agreed, but insisted that the court could achieve the desired end by judicial pronouncement as well as the Congress could achieve it by legislative action. Frankfurter persisted, taking judicial notice of eighty-five years of segregation in Washington:

“Is it to be said fairly that not only did Congress not exercise the power under Section 5 with reference to the States but, in a realm in which it has exclusive authority, it enacted legislation to the contrary? Are you saying that legislation does not mean anything but what it does? It just segregates, that’s all.”

“Well, not exactly,” Rankin replied. “You have to find a conscious determination by Congress that segregation was permitted under the Fourteenth Amendment.”

“You think legislation by Congress is like the British Empire—something that is acquired in a fit of absent-mindedness?”

“I wouldn’t make that charge before this court,” said Rankin stiffly, “and I don’t want to be quoted in that manner.”

Nevertheless, Frankfurter’s questions exposed the weakness of the plaintiffs’ historical justifications. Rankin’s astonishing idea—that Congress never really had thought much about what it was doing, during all the years since 1868 in which it had provided annually for segregated schools in Washington—was echoed in feeble attempts to explain away the judicial precedents. Jackson and Reed asked Rankin how he could account for decisions of Northern courts, in such cases asGarnes,King, andCory, holding that the Fourteenth Amendment did not reach public schools. Rankin replied weakly that “apparently there was no detailed study of the history and background of the Fourteenth Amendment.” This was too much for Jackson: “These men lived with the thing,” he said; “they didn’t have to go to books.”

The question that most troubled Jackson, however, was the key question of judicial power. He wondered aloud if it were appropriate “for the court, after all that has intervened,to exercise this power instead of leaving it to Congress.” Thurgood Marshall, for the plaintiffs, insisted that theories of a dynamic, growing Constitution abundantly justified the court in reversing Plessy and in placing its own contemporary construction on the Amendment. John W. Davis, for the defense, strongly disagreed: “At some time to every principle comes a moment of repose, when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.”

Painstakingly, counsel for the Southern States called the roll of precedents supporting—or not disturbing—the long-established doctrine of “separate but equal.” ThePlessycase of 1896 had been followed in December 1899 byCummingv.Richmond County Board of Education(175 U. S. 528). Here the facts were that a Georgia county had closed its Negro high school and required local Negro high school students to go into Augusta for schooling, in order to convert the high school to the needs of three-hundred elementary pupils. The Negro high school pupils sought an injunction to upset this arrangement. And though the denial of equal facilities locally might seem plain, aunanimousSupreme Court found no merit in the Negroes’ claim. Some of the students might be inconvenienced by the requirement that they attend one of the three Negro high schools in nearby Augusta, but their inconvenience had to be set against the needs of the elementary children. Further, nothing constructive would be gained by closing the white high school merely because the Negro high school was no longer operating. “Under the circumstances disclosed,” said the court, “we cannot say that this action ... was,within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and those associated with them of the equal protection of the law, or of any privileges belonging to them as citizens of the United States. The education of the people in schools maintained by State taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” [Emphasis supplied.] It iscurious, one may note in passing, that persons who so reverently admire Mr. Justice Harlan’s dissent of 1896 inPlessycustomarily fail altogether to acknowledge that it was Mr. Justice Harlan who spoke in 1899 for a unanimous court inCumming.

The court’s pronouncement inCummingwas cited the following year in the New York Court of Appeals (161 N. Y. 598), when Negro petitioners challenged the right and power of Queens Borough to maintain separate schools. The New York court refused to disturb the system: “It is equal school facilities and accommodations that are required to be furnished, and not equal social opportunities.”

In November 1908, the Supreme Court considered a suit brought by Berea College against the Commonwealth of Kentucky (211 U. S. 45). Berea, a private college, had been operating as a racially integrated institution. A State law was enacted making it unlawful for any corporation chartered in Kentucky to maintain a private school on such a basis. On the grounds that the law was within Kentucky’s power to regulate Kentucky corporations, a majority of the Supreme Court held the law valid. Harlan dissented warmly. He thought Berea’s right to admit pupils of its own choosing to its classrooms was “a liberty inherent in the freedom secured by fundamental law,” but he did not wish to be misunderstood: “Of course what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the State and maintained at the public expense.”

Six years later, the generic question of “separate but equal” was again before the Supreme Court, inMcCabev.Atchison, Topeka & Santa Fe Railway Company(235 U. S. 151). A Negro passenger had sued to halt enforcement of an Oklahoma law requiring racial separation on coaches. The trial court had dismissed the suit by calling attention toPlessyand saying that the power of the States to require separate but equal accommodations “could no longer be considered an open question.” Said Hughes for a unanimous Supreme Court: “There is no reason to doubt the correctness of that conclusion.”

Thirteen years elapsed. Membership on the court changed. On November 21, 1927, when the court decidedGong Lumv.Rice(275 U. S. 78), Taft was Chief Justice; his brothers included such giants of the law as Holmes, Brandeis, and Stone. The question of the power of the States to maintain racially separate but equal schools was put squarely before the court. Mississippi had insisted that a Chinese child, Martha Lum, attend a Negro high school in Bolivar County instead of a white high school. This was what Taft said, speaking for aunanimouscourt:

Back to Index Next