The Court’s “Authorities”
What possible excuse could the justices give for this unwarranted seizure of power? Unless one of the justices some day sees fit to reveal the story, no one will ever know what went on inside the Court while the school cases were pending. These cases first came before the Court in 1952 and were scheduled and rescheduled for hearings several times before a decision was finally rendered in 1954. It was Chief Justice Warren who delivered—and presumably wrote—that revolutionary decision. And it is Warren who is credited with “harmonizing” the Court and bringing about the unanimous decree. Warren, who likes to be liked by everybody, is the “hail-fellow-well-met” type. He calls all the other justices by their first names, and enjoys flouting precedent to such an extent that he appeared on the platform at a meeting of the American Bar Association in London—gathered to hear an address from the Prime Minister—in a bright chocolate-colored suit with a gray tie. All the other distinguished guests on the platform wore formal dress, morning clothes, or dark suits. One American lady present at the meeting thought Mr. Warren should have remembered that he was Chief Justice of the United States and said, “If he didn’t know any better, somebody should have told him.”
Despite the Chief Justice’s good fellowship, however, his legal knowledge was admittedly rusty. One admirer said he “studied far into the night to polish up his knowledge of constitutional law.” More objective observers believe it was Felix Frankfurter who supplied the “studies” and cajoled the more reluctant members of the Court into going along with the decision. Justice Frankfurter, together with Justice Douglas, were two of the early swallowers of that “sociological jurisprudence” which Professor Sorokin has so aptly called “hearsay trivia.”
In any case, the “authorities” to which the Chief Justice and his colleagues turned to justify their unlawful decision are almost beyond belief. One of them was a so-called “social science expert,” named K.B. Clark, employed by the NAACP—the principal plaintiff that brought the cases before the Court. It was a very strange procedure, to say the least, for the Court to cite as an “authority” an employee of one of the litigants—and to do so after the hearings were over, so that the defendants had no chance to reply to or refute the arguments of such an “authority.”
Another “authority” to whom the Court turned to justify its decision was a leading exponent of progressive or “modern” education—Theodore Brameld. In fact, he was one of those in the forefront of the drive which has so successfully undereducated several generations of American children in order to make them into the compliantly ignorant mass of the “new social order” of socialism in America. Besides this, he has been cited by various government agencies as having been connected with at least 10 communist-front organizations. The justices could hardly have been in ignorance of his record, since some of the citations were made by the Attorney-General’s office when it was in charge of Justice Tom Clark, and by an official publication of the State of California when Chief Justice Warren was governor.
Still another “authority” of the Court was E. Franklin Frazier, a sociologist who had 18 communist-front connections to his credit. He was the author of a book on the Negro—full of that psycho-sociological “hearsay trivia”—which the Warren Court cited in its decision. The Court thus joined hands with the Communist Daily Worker and Communist Daily People’s World which gave the book their blessing. So did the Communist Workers Book Shop Catalog, which advertises only books acceptable to the Communist Party.
First and foremost among the Court’s “authorities,” however, was a book compiled and partly written by Gunnar Myrdal, a Swedish socialist. He had no knowledge whatever of race relations in America. He was brought over here and given a grant by the Carnegie Foundation to produce a book on the subject. As he is a socialist, his contempt for the American Constitution is complete. He called it “impractical and unsuited to modern conditions” and said its adoption was “nearly a plot against the common people.” This Swedish socialist had sixteen collaborators who contributed 272 articles and portions of his book. Every one of these 16 had communist-front affiliations. One of them, for instance, was that same W.E.B. DuBois, of the NAACP, who could not get a passport from the State Department because of his record. But he, his fifteen communist-front collaborators, and their socialist editor passed muster with the Supreme Court of the United States. The Swedish socialist subsequently wound up in the United Nations, but even that body of outright and hooded leftists couldn’t stomach his acceptance of communist statistics and in 1957 he had to resign.
When the Court overturned all previous decisions in the school cases, it said, speaking through Chief Justice Warren: “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.” These, then, were the “modem authorities” used by the Supreme Court to overturn 165 years of American constitutional law.
The Court, of course, had to clothe its use of these “authorities” in some constitutional raiment, no matter how synthetic. It could not just say that a group of pro-communist writers has figured out that the Negro will “feel inferior” if he goes to separate but equal schools, and so we hereby declare that the races must be mixed in the schools. It therefore hit upon a phrase in the 14th Amendment to the Constitution which reads: “. . . nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”
The Court’s action has led many serious students of our constitutional history to question once again the validity of the 14th Amendment itself. There can be no doubt that the Amendment was “adopted” under odd circumstances in one of the most shameful periods of our national life. After the War between the States—the Civil War—the Southern states adopted the 13th Amendment to the Constitution. That is the amendment which abolished slavery. The federal government accepted this ratification by the Southern states of the 13th Amendment and it became part of the Constitution. But when the 14th Amendment came before the legislatures of the Southern states, they turned it down. But in this case the federal government did not accept their action. We were in the throes of the shameful “Reconstruction Era” in the South. Not only were all Southern members of the House and Senate deprived of their seats, but the federal government ordered troops to take charge of the legislatures of the Southern states. “Reconstruction” or puppet legislatures were set up, and it was these—under duress of federal troops—which ratified the 14th Amendment.
That was nearly ninety years ago, and no Supreme Court since that time has ever ruled on whether or not such a “ratification” of the 14th Amendment was legal. But it would seem that those who raise the question once again—no matter how sound their reasoning may be—would appear to be rather in the position of beating a dead horse. A whole body of law has become imbedded in our system based on the amendment during the long years since its passage. Any value that might flow from invalidation of the amendment would be very much overshadowed by the chaos that would result from the abrogation of those laws founded on another phrase, that no state shall “deprive any person of life, liberty, or property, without due process of law.”
In any case, those who would oppose the Warren Supreme Court’s unlawful seizure of power have a complete answer even assuming the validity of the 14th Amendment. As we have pointed out, innumerable earlier Supreme Courts, as well as the highest courts of 23 of the sovereign states which adopted the amendment, have declared that “equal protection of the laws” is fulfilled in the provision of separate but equal facilities; plus the fact that the Congress and the 37 states which adopted the amendment were clear that it did not apply to the public schools. And the final section of the 14th Amendment itself puts the Warren Court thoroughly beyond the pale of legal and constitutional action in its school decision. That section reads: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Congress has never passed “appropriate legislation” declaring that the races must be mixed in the public schools. On the contrary, it passed legislation providing for segregated schools in the only educational system over which it has jurisdiction—that of the District of Columbia. The Supreme Court simply usurped the legislative power from Congress, and, on the “authority” of a handful of leftist pseudo-scientists, is ruling the operation of our local schools by judicial fiat.
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