Joel T. LeFevre, American Renaissance, July 2004
The Supreme Court’s decision in Brown v. Board of Education sent a shockwave through much of the legal community. Scholars noted serious Constitutional problems with the ruling, and significant departures from principles of jurisprudence. More than 80 congressmen and senators signed the “Southern Manifesto,” charging that the justices “undertook to exercise naked judicial power and substituted their personal political and social ideas for the established law of the land.” Several states in the South passed resolutions of interposition, denouncing, in the words of Virginia, “the deliberate, palpable, and dangerous exercise of powers not granted [to the federal government] . . .”
Fifty years later, all this is forgotten. Very little is said about these legal and Constitutional issues, or about the precedent set in 1954, but the Constitutional history leading up to the ruling makes clear how thoroughly aberrant the Court’s behavior was in Brown.
After the War Between the States, Congress had to determine the legal status of millions of newly-freed slaves. The Civil Rights Act of 1866 did not grant full racial equality, but it carefully defined rights that could not be curtailed on the basis of race:
The inhabitants of every race and color, . . . shall have the same 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 full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties . . .
Furthermore, there was to be:
no discrimination in civil rights or immunities . . . on account of race, color, or previous condition of servitude.
This was before the term “civil rights” was corrupted to mean special privileges for non-whites. They were basic rights of which no man could be deprived, but they were limited, specified rights. Senator Edgar Cowan of Pennsylvania questioned the bill’s effect on school segregation. To this and other concerns, the bill’s patron, Senator Lyman Trumbull, said it would have none, noting that the bill did not grant the right to vote, nor did it make all citizens eligible for service on juries. “This bill is applicable exclusively to civil rights . . .” he explained. “That is all there is to it.” Congressman James F. Wilson of Iowa, chairman of the House Judiciary Committee, explained further:
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.
Some worried about the effect the bill would have on state anti-miscegenation laws, but each time the issue came up, the proponents of the bill insisted it could not interfere with such laws, so long as there were no differences in penalties for whites or blacks guilty of race-mixing.
The 14th Amendment
The Civil Rights Act became law on April 9, 1866, over President Andrew Johnson’s veto. During the debates, the Joint Committee on Reconstruction headed by Sen. Thaddeus Stevens wrote a draft of what would become the 14th Amendment. Its purpose was to enshrine the provisions of the Civil Rights Act of 1866 in the Constitution, thereby placing them beyond the reach of a transient majority. Sen. Stevens was worried that “the first time that the South with their copperhead allies obtain the command of Congress it [the Civil Rights Act] will be repealed.” An amendment would also bind the states for, as Sen. Stevens noted, “the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect.” Congress passed the amendment on June 13 and sent it to the states for ratification.
In what became a common formulation, the 14th Amendment provided for how its provisions would be implemented: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” However, as noted on page three of this issue, the very same Congress that voted the Amendment segregated the schools in the District of Columbia, which was the one jurisdiction under its direct control.
This fact should be all that is necessary to establish the intent of the 14th Amendment with regard to school segregation. As legal scholar Arthur J. Schweppe noted in 1961, “. . . it is utterly unthinkable historically that the framers of the 14th Amendment intended white and colored schools to be integrated, and that the identical Congress and subsequent Congresses completely misinterpreted that intent by passing unconstitutional legislation for almost a hundred years.”
As also noted on page three, many of the states that ratified the amendment either established segregated schools or continued operating the ones they already had. Some states in the North had already done away with segregation, never practiced it, or ended it on their own. In some, the black population was so small segregation would have been impractical. According to the 1870 census, there were fewer than 2,200 blacks in Wisconsin, 1,700 in Maine, 1,000 in Vermont, 800 in Minnesota and Nebraska, and only 346 in Oregon. No state that ended segregation, whether by legislation or by court decision, appealed to the 14th Amendment as an authority in doing so.
Segregation and the Courts
The Supreme Court acknowledged in Brown that “The doctrine [of separate but equal schools] apparently originated in Roberts v. City of Boston . . .” This 1849 case — which predates Plessy v. Ferguson by almost 50 years — was decided in Massachusetts, a leading abolitionist state, and upheld segregation despite a state constitution that was much more explicit about equality than the US Constitution.
Massachusetts was the only state to enter the Union before 1835 with a constitution including a “human equality” clause. While other states generally embraced George Mason’s concept of “equality of freedom and independence,” Massachusetts’s constitution declared flatly that “all men are born free and equal.” The state Supreme Court was therefore construing a much broader equality provision than mere “equal protection,” and abolitionist Charles Sumner represented a black plaintiff who claimed that racially separate schools violated the equality clause. He advanced an argument that later appeared in Brown, that segregation “tends to create a feeling of degradation in the blacks.”
The Massachusetts Supreme Court emphasized the need to base its decision on law, not on subjective feelings of degradation, and upheld the power of local boards to maintain segregated schools. However, Massachusetts desegregated its schools by legislation just six years later in 1855. Since the Constitution did not limit the states’ powers to regulate their schools, they had exclusive power to segregate or integrate. Congress never claimed that the 14th Amendment took away that power, and the states that ratified it never gave it up.
Several cases eventually came before the US Supreme Court to test the meaning and extent of the 14th Amendment. The best known was Plessy v. Ferguson (1896), and many regard it as the case in which the Court first embraced “separate but equal.” While it was the first time that the Court as a whole addressed the question directly, the decision was entirely consistent with the general approach the Court had taken in the years leading up to it. In the Slaughterhouse Cases (1872), for example, the Court interpreted the 14th Amendment in the limited sense in which it was intended:
Was it the purpose of the 14th Amendment . . . to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And . . . was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
In 1875, Congress passed a comprehensive Civil Rights Act that attempted to end segregation in “inns, public conveyances on land or water, theatres, and other places of like amusement.” The Supreme Court struck down these provisions as beyond the scope of Congressional power under the 14th Amendment. In what became known as the “Civil Rights Cases,” the Court asserted that the rights protected by the Amendment were exactly those defined — to own and convey property, enforce contracts, give evidence, etc. — and nothing more. The lone dissenter was Justice John M. Harlan. School segregation was not at issue here, but only because an attempt to prohibit it in the 1875 act had been soundly defeated in Congress.
In 1878, the Court upheld segregated transportation in interstate commerce in Hall v. DeCuir.As Justice Nathan Clifford noted:
Substantial equality of right is the law of the State and of the United States; but equality does not mean identity, as in the nature of things identity in the accommodation afforded to passengers, whether colored or white, is impossible . . . Passengers are entitled to proper diet and lodging; but the laws of the United States do not require the master of a steamer to put persons in the same apartment who would be repulsive or disagreeable to the other.
Justice Clifford then referred approvingly to segregated schools, citing the Massachusetts decision in Roberts. “[E]quality 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,” he wrote, adding that “any classification which preserves substantially equal school advantages is not prohibited by the State or Federal Constitution, nor would it contravene the provisions of either.” In Louisville, N. O. & T. Railway Co. v. Mississippi (1890), the Supreme Court upheld a Mississippi law requiring segregated railroad cars, with Justice Harlan again the only dissenter.
When Homer Plessy, who was one-eighth black, refused to leave a railroad car for whites and sit in the car for colored people, he was arrested and fined. When his case came before the Supreme Court, no one familiar with the Court’s history could have been surprised when it upheld the Louisiana law that required segregation. We are, of course, reminded over and over that Plessy was not decided by a unanimous bench — that Justice Harlan declared, “Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”
Justice Harlan was not, however, the egalitarian he is now made out to be. Just three years after Plessy, the Court considered a case known as Cumming v. Richmond County Board of Education. A black high school in Georgia had been turned over to elementary school students, which meant the high school students had to attend school in nearby Augusta. If the local high school had been integrated, they would not have had to go to Augusta, and the blacks claimed they were thus deprived of equal local facilities. The Supreme Court disagreed. In a unanimous decision written by Justice Harlan himself, the Court argued:
“[W]hile all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, 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.”
In Berea College v. Commonwealth of Kentucky (1908) the Court upheld a Kentucky statute forbidding mixed-race private schools. Justice Harlan dissented again, but even here he was careful to state, “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.” Regardless of his views on “separate but equal” as broadly applied to something like public transportation, he never denied the right of the states to maintain racially separate schools.
Before 20th century theories about racial equivalence, people took it for granted that racial differences justified different treatment. As the Georgia Supreme Court in Wolfe v. Georgia Railway & Electric Co. (1907) observed, “We cannot shut our eyes to the facts of which courts are bound to take judicial notice . . . It is a matter of common knowledge that, viewed from a social standpoint, the negro race is in mind and morals inferior to the Caucasian. The record of each from the dawn of historic time denies equality . . . We take judicial notice of an intrinsic difference between the two races.”
The courts usually did not speak so bluntly, but an understanding of race was the foundation of many rulings. In the Roberts case mentioned above, the Massachusetts Supreme Court stated that, “The power of general superintendence vests a plenary authority in the [schools] committee to arrange, classify, and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare . . .” and took notice of the fact that “in the opinion of that board, the continuance of the separate schools for colored children . . . is not only legal and just, but is best adapted to promote the instruction of that class of the population . . . We can perceive no ground to doubt that this is the honest result of their experience and judgment.”
In 1927 the Supreme Court observed that segregation in transportation facilities presents “a more difficult question” than segregation in schools. “In other words,” wrote constitutional authority R. Carter Pittman, “the Court took judicial notice of the fact that it is easier to justify the separation of races in schools for twelve years than it is to justify the separation of races on trains for twelve hours.”
This case was Gong Lum v. Rice. And if the foregoing history is insufficient to remove any doubt about the constitutionality of school segregation, surely this case should settle the matter. It involved a student of Chinese descent, Martha Lum, who had been required to attend a colored school instead of a white school. The Court at that time included such luminaries as Chief Justice (and former US President) William Howard Taft, Oliver Wendell Holmes, and Louis Brandeis. In a unanimous decision, the Court declared:
The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear. The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black. Were this a new question, it would call for very full argument and consideration; but we think that it is the same question which has been many times decided to be within the constitutional power of the state Legislature to settle, without intervention of the federal courts under the federal Constitution . . . The decision is within the discretion of the state in regulating its public schools, and does not conflict with the 14th Amendment.
In 1938, the Court once again upheld segregated schools in State of Missouri ex rel. Gaines v. Canada, observing that “the state court has fully recognized the obligation of the State to provide negroes with advantages for higher education substantially equal to the advantages afforded to white students. The State has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.” And as late as 1950, in Sweatt v. Painter, (one of the so-called “graduate school” cases), the Court handed down a ruling based firmly on the “separate but equal” doctrine.
It was against this background that the Warren Court declared that segregated schools violate the 14th Amendment after all. The best that the Warren Court could glean from the history of the Amendment was that its intended effect on segregated schools was “inconclusive” and that “what others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.” It is hard to see this as anything other than an outright lie. By this time, over 30 Supreme Court justices had upheld segregation in an unbroken chain of precedents, and the DC school system, under the oversight of Congress, continued to be segregated. In reality, the Court simply ignored the Constitution, and based its decision on pure sociology.
The case of Beauharnais v. Illinois, rendered just two years before Brown, underlines the hypocrisy of consulting social science rather than the Constitution. In this case, the Court specifically refused to do precisely what it insisted on doing in Brown. Justice Felix Frankfurter himself wrote the decision:
“Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion . . . Certainly the Due Process Clause does not require the legislature to be in the vanguard of science — especially sciences as young as human ecology and cultural anthropology . . . It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community.” Just two years later, the entire Court bowed down to the social “science” of Kenneth Clark’s doll studies. It would be hard to find so cynical a reversal.
On May 17, 1954, the Court subverted two great Anglo-Saxon achievements. One was the judicial system itself. The emancipated judiciary, liberated from control of the legislative and executive branches, was established only after centuries of struggle as a last barrier against tyranny. Now the Court itself had become an instrument of tyranny, usurping not merely the legislative role, but the prerogatives of three-fourths of the states in amending the Constitution. It also trampled underfoot the Anglo-Saxon concept of law as made only by the elected representatives of the people.
Author Rosalie M. Gordon observed that “the overwhelming tragedy for us all is that the Court, in its segregation decision, stormed one of those last remaining bastions of a free people . . . the locally controlled and supported public-school systems of the sovereign states. For, by that decision the Supreme Court handed to the central government a power it had never before possessed — the power to put its grasping and omnipotent hand into a purely local function.”
Brown v. Board of Education marked the beginning of a new era during which the Court has assumed the powers of an ongoing constitutional convention. For the past half century this former republic has been subject to the arbitrary rule of judges who are unelected and unaccountable to the people. The people hardly know what the law will be from one day to the next. As Carter Pittman warned, “If the Supreme Court can make that to be law today that was not law yesterday, we have a broken Constitution and a shattered Bill of Rights.”