ON MAY 17, 1954, the Supreme Court of the United States handed down its opinion in Brown vs. Board of Education.(1) By this pronouncement, the Court undertook to put an end to racial separation in public schools.

“We conclude,” said Mr. Chief Justice Warren, “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

This conclusion of the Court, this holding, had no basis in law; it had none in history. It was based primarily upon what the Court was pleased to term “intangible considerations.” To separate Negro children from white children, said the Court, “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Whatever may have been “the extent of psychological knowledge” in 1896, when the Court approved the “separate but equal” doctrine, it now was clear to the Court that racial separation creates a “sense of inferiority [which] affects the motivation of a child to learn.” Citing The American Dilemma, by Gunnar Myrdal, as a general authority for its sociological views, the Court turned smoothly to the task of formulating an appropriate decree.

It is plain, now, that the opinion should have been foreseen. There had been rumblings of judicial thunder in preceding years: the Gaines case,(2) the McLaurin case,(3) the Sweatt case.(4) But all these had involved segregation in institutions of higher learning, and none of them had quite turned on the fundamental question: Is segregation in itself, as a State policy in public institutions, a violation of the Fourteenth Amendment? This question had been pondered by a few lawyers, a few editors, a few educators. The people themselves, for the most part, had pondered the matter scarcely at all. The earlier admission of a few Negro college students in Missouri, Oklahoma, and Texas was something that had happened to some other fellow in some other place, a long way away. It seemed inconceivable that anything drastic could happen to the neighborhood elementary school or the village high school.

Thus the Court’s opinion, that Monday afternoon in May, struck with a stunning shock. At first the reaction was largely one of bewilderment and dismay. Accustomed to obedient acceptance of anything purporting to be law, most Southern spokesmen fumbled to express both opposition and acceptance. There was relief that immediate integration had not been ordered; there was a widespread hope that “something would turn up.” Gradually this Micawberish sentiment faded. In its place came resentment, resistance, and at last a grim comprehension of the violence that had been done to the Constitution.

It is this last aspect to which this essay now turns. It is important to understand the constitutional position taken by Southern States in the school case, not only for an appreciation of the great and complex problems that have arisen in the South, but more importantly for what we may learn of the prospect that lies ahead for all States. The opinion of May 17, 1954, it is said, affected the eight States of the Old South and the Deep South most of all. The more accurate statement is that it affected every State equally. For the extinction of one power exercised by a few States creates precedent for the extinction of all powers exercised by all States. Judicial encroachment, like any vice, is habit-forming. And a series of opinions since Brown vs. Board of Education offers graphic warning of the swift deterioration of the Constitution now in progress. “Where law ends,” Pitt said, “tyranny begins.” Neatly bound in recent volumes of the United States Reports, it is submitted, is precisely such an ending and beginning.

It ought not to be necessary to preface these observations with a recollection of common burdens shared, and blood spilled equally on foreign soil. Yet so passionate is the animosity now voiced against the South that perhaps a gentle reminder may not be amiss. These States, these Southern States, yield to no States in their devotion to those ideals of liberty and law that are our common glory. Sons of the South have fought and died, equally with men of the North, that this heritage might be preserved. These States have shared equally in the payment of taxes, and in the acceptance of the obligations placed upon all members of the Union. In the immediate matter of their public schools, they have for nearly ninety years worked toward full compliance with the law as the law repeatedly was defined and understood; by this law, believing in the stability of law, they erected their institutions and poured their wealth and affections into them. Their sole request is that, if the law must now be changed, then let it be by lawful process, not by lawless usurpation.

THE FIRST proposition is this: The Fourteenth Amendment to the Constitution, never having been validly ratified, cannot provide a valid basis for the mandate the Supreme Court proposes to inflict upon the Southern States. Is this a preposterous contention? It must seem so at first, yet few historians would term it so. Is it too late now to correct an initial wrong? Surely the South’s adversaries cannot concede that age must be respected. Is the proposition something conjured upon on the spur of a desperate moment? Not so: The Supreme Court repeatedly was asked to rule on the point in the Reconstruction period, and the Court as repeatedly ducked the issue; the Court has not faced it squarely to this day. Lawyers, jurists, and scholars repeatedly have discussed the point.(5)

The facts are not obscure. The War ended with Lee’s surrender on April 9, 1865. Two months earlier, the Thirteenth Amendment, abolishing slavery, had been approved by the Congress; it was even then making the rounds of the States for ratification. In due course, the resolution came before the legislatures of the defeated Southern States; they ratified it, and their ratifications were duly recorded in a count of the three-fourths necessary to engraft it upon the Constitution. Thus, in the summer of ’65, the Confederate States formally and officially were counted back in the Union—indeed, it was the North’s position that legally they had never left it: Mortal men might rebel; whole States could not secede. That was the North’s contention, and not by law, but by the force of superior arms, the North made it stick.

Yet the following December of 1865, when the Thirty-ninth Congress convened, it appeared that ten Southern States were not States after all. Their Senators and Representatives were denied seats in the Congress. As justification, Thaddeus Stevens advanced the argument that under the Constitution, “each House shall be the judge of the elections, returns and qualifications of its own members.”(6) No Southerner, in Stevens’ view, was “qualified”; therefore, all were rejected. This summary action did palpable violence to two other provisions of the Constitution, each explicit in its language—that no State may be deprived of its equal vote in the Senate without its consent, and that every State shall have at least one Representative in the House. Had the Southern States been represented, the amendment surely would have failed of approval in the Congress: It barely won a two-thirds majority in the Senate—33-11—even with the South excluded.

Stevens was not dissuaded. In his view, “the conquered rebels were at the mercy of the conquerors.”(7) Thus, if the Southern States would not ratify the amendment voluntarily, they would be compelled to ratify as the price of readmission to the Congress. In March of 1867, the Radicals wrote into law (over Johnson’s veto) the Reconstruction Act, which opened with a recital that “no legal State government” existed in the Southern States, and continued with provisions for government by military rule. Federal registrars were put in charge of voting lists, and puppet legislatures were set up throughout the South. In time, these paper parliaments duly said “ja”—there was nothing else they could say—and their “consent” was solemnly recorded in Washington. Meanwhile, Ohio and New Jersey, while the amendment was still pending and before a sufficient number of ratifications had been obtained, adopted resolutions rescinding their earlier resolutions of approval. In Oregon, as Joseph B. James has pointed out, a favorable vote of 25-22 in one house included the ayes of two men illegally elected; when they were replaced, and a count of 24-23 against the amendment resulted, a rescinding resolution was declared too late to be effective. It was Oregon’s Legislature that voiced the first formal protest, perhaps, against the invalidity of counting coerced ratifications from the Southern States.

Efforts were made, of course, to challenge this ruthless process of writing fundamental law. Had not President Johnson himself described the Reconstruction Act as a “bill of attainder”? Yet the high Court weakly evaded every opportunity to come to grips with the question. The issue, said the Court, was political, not justiciable.(8) And again, in the famed McCardle case, the Court permitted Congress to amend the Reconstruction Act, in the very middle of a judicial proceeding, in order to prevent a determination of the law’s constitutionality.(9) The following year, in July of 1868, the Fourteenth Amendment was proclaimed “adopted.” In the bitterness of defeat, the South offered no further contest. And though in recent years, the Court has again indicated that it would not look into “the political departments of the government,”(10) the fact still remains that it was only by virtue of a palpably unconstitutional series of actions that the Fourteenth Amendment ever was ratified at all. The amendment certainly was not ratified by the voluntary act of free men under a republican form of government. This was puppet-law, sanctioned by States, as Professor Joseph B. James has said, that “were States in name only.” And nothing could be clearer than the line of reasoning which holds that if the amendment were void at the outset, it remains void to this day, whether one thousand or ten thousand cases have been decided pursuant to its terms.

This objection on the South’s part, to be sure, is not pressed with great earnestness. Freely elected legislatures, since Reconstruction days, have tacitly acquiesced in the amendment’s existence. It is doubtless futile to revive now the denunciation voiced then: Too much water has poured over the damn.

The objection the South relies most firmly on is this: (1) Under the Tenth Amendment, all powers not delegated to the United States nor prohibited by the Constitution to the States are reserved to the States respectively or to the people; (2) the power to operate racially separate schools never was prohibited to the States by the Fourteenth Amendment or by any other provision of the Constitution, but on the contrary was clearly understood to be reserved to them; (3) therefore, that power remains vested in the States respectively to this day, and can be prohibited to them only by the Constitution itself, and not by any judicial construction.

These are not frivolous contentions. They go to the heart of our Constitutional process. Implicitly, they raise this question: Is it right—morally or constitutionally right—for the States solemnly and honorably to agree to Proposition “A”, only to have Proposition “Not-A” put upon them by judicial fiat? Is there any boundary at which “interpretation” stops, and effective amendment begins? Surely there must be some such boundary, or the amendatory process becomes mere dumbshow, and the act of ratification the gauziest stage-setting. Article V of the Constitution must have some meaning, and its plain meaning is no more than this: That amendments proposed to the Constitution cannot become a part of the Constitution unless they are acceptable to not fewer than three-fourths of the States. But when it is said that an amendment must be acceptable, what is meant is that the meaning and intention of the amendment must be acceptable; the end sought must be acceptable; the object to be served by the amendment must be an object acceptable to three-fourths of the States. If in time, it is proposed that different intentions, ends, and objects be engrafted upon the Constitution, then it is clearly reasonable to urge that these new aims must also be acceptable to three-fourths of the States.

Constitutionalism is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order. The writing down of fundamental law, beyond peradventure and against misunderstanding, is an important political invention. It offers exact and enduring language as a test for official conduct. . . .(11)

Unless the exercise of a power by government is authorized by words engrossed on parchment, and unless those words are exact and enduring, the test for official conduct vanishes—and along with it the trust of men, upon which in the long run government itself depends.

With that in mind, let us examine the meaning, the object, the intention, and the end sought to be served by the Fourteenth Amendment at the time of its ratification. Was it intended that the Fourteenth Amendment, in itself, should prohibit the States from maintaining racially separate public institutions? What, in terms of public schools, was meant by “the privileges and immunities of citizens of the United States” and “the equal protection of the laws”?

The questions can be answered; they can be answered clearly and decisively. It should be remembered that 1868, after all, was not so terribly long ago. Records of the period are conveniently available. No vital evidence is lost or missing. No reason exists for uncertainty.

And what the evidence shows is this: Neither the Congress that proposed the Fourteenth Amendment, nor a single one of the thirty-seven States that considered it, understood that the amendment, of and by itself, outlawed segregation by race in the public schools.

The first section of the bill defines what I understand to be civil rights: The right to make and enforce contracts, to sue and be sued, and to give evidence, to inherit, purchase, sell, lease, hold and convey real and personal property.(12)

Others were doubtful. Senator Edgar Cowan of Pennsylvania, a Republican, feared this “monstrous” bill(13) might mean the end of segregated schools in his State. Others thought it might ban miscegenation laws. But Senator Trumbull repeated that the bill dealt with civil rights only, as he had defined them, and had “nothing to do with the political rights or status of parties.”(14)

On the House side, in March of 1866, the Trumbull bill encountered further objections. What was meant by the provision guaranteeing to all inhabitants “full and equal benefit of all laws”? How could “civil rights or immunities” be defined? Wilson of Iowa, chairman of the Judiciary Committee to which the bill had been committed, had a clear and precise response:

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.(15) [Emphasis supplied.]

But in view of the objections, going chiefly to the doubtful constitutionality of the bill as an encroachment upon reserved powers of the States, the Civil Rights Bill went back to committee. On March 13, it emerged with the reference to “civil rights or immunities” eliminated as such, but with the meaning of the bill pinned down:

Citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . 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 tor the security of persons and property as is enjoyed by white citizens. . . .

In this form the bill passed. It was vetoed by President Johnson on the constitutional objection that Congress was attempting to invade the vast field of State jurisdiction covered by the reserved powers, but in April it was adopted over his veto. What may be learned from this brief chronology is, first, that the patrons of the act did not intend “civil rights” to have any application to segregated schools; and secondly, that the Congress as a whole was unwilling that there should be misunderstanding on the point. The phrase, “full and equal benefit of all laws,” to the men most intimately concerned in the long debate, had no application to segregated schools.

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty and property.(16)

At once the question arose that concerns us in this review: Rogers of New Jersey thought the language might authorize Congressional power to compel amalgamated schools. Proponents swiftly moved to quiet this objection: The aim, they said, was not to confer any new power upon Congress, but only to permit Congress to enforce the provisions of the Constitution already in existence. The “privileges and immunities” covered in the proposed amendment were only those of Article IV, Section 2. (The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.) But his version of the Amendment was sidetracked, and it was not until April 21 that a new proposal, much closer to the final form of the Amendment, came to the floor of the Senate.

On April 25, the key sentence was written into Section 1 of the proposed amendment, exactly as it appears today:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

It is significant that in neither the majority nor minority reports accompanying this draft of the amendment was there the slightest reference to public schools. Can it be argued persuasively that this omission is because “everyone understood” the language would prohibit the States from operating separate schools? Plainly not. For this very question had been raised in debate on the Civil Rights Act, and the intention of the sponsoring members of Congress had been spelled out. It was Stevens’ aim to nail into the Constitution what was attempted to be secured by the Civil Rights Act: A mere law could be repealed by a majority of Congress; an amendment to the Constitution was something else. Others joined Stevens in this point of view. Boyer of Pennsylvania, who opposed the whole resolution, thought “the first section embodies the principles of the civil rights bill.”(17) Broomall, who favored it, agreed: The pending measure already had been considered “in another shape, in the civil rights bill.” Senator Raymond, publisher of the New York Times, saw the amendment as embracing the same matter of the Civil Rights Bill. Eliot of Massachusetts concurred. So did Rogers of New Jersey, who opposed the measure: It was “no more nor less than an attempt to embody in the Constitution of the United States that outrageous and miserable civil rights bill.”

From all of this—and the available evidence is, of course, far more voluminous—it is evident that the House of Representatives regarded the proposed Fourteenth Amendment as a constitutional restatement and validation of the Civil Rights Act simultaneously under debate. And it is clear that the House understood that neither the act nor the proposed amendment related to segregated schools.

The story was repeated in the Senate debate. In all the prolonged argument over the effect of the proposed resolution on the States, it never once was suggested by a proponent that the amendment was intended to outlaw racially separate schools. The whole history of the amendment, as Professor James has made abundantly clear in his meticulous monograph, rested (1) in political considerations of Negro suffrage, and (2) in a possibly humane desire to accord certain “civil rights” to the recently freed Negro. On the first point, many of the Midwestern and Northern States shared a concern almost equal to that which might be felt in the South: Ohio at the time denied the vote to Negroes; so did Indiana (indeed, Indiana by her Constitution, explicitly forbade Negroes to immigrate to or settle in that State). More importantly, it was recognized that if the vote were given with a free hand to the former Negro slaves, on a straight population basis, the just-defeated South would gain enormously in congressional representation. Thus, what was to become the second section of the Fourteenth Amendment for a long period of time received far greater consideration than was given to the first section. In the eyes of Thaddeus Stevens, this was “the most important in the article.”(18)

The debates during the first half of 1866, in terms of “equal protection” and “privileges and immunities,” scarcely can be misunderstood. Henry Ward Beecher, the abolitionist, had no doubts on this score: The aim was to protect the Negro’s right to work, and further to make him “the equal of all other men before the courts and in the eyes of the law. He should be just as much qualified to be a witness as the man who assaults him.”(19) Nor did Justin Morrill of Vermont, who was to be a member of the joint committee that framed the amendment: The object was to preserve for the Negro a right “to hold property, be a party and witness in . . . (court).”(20) The amendment was designed to backstop the Civil Rights Act.(21) It was intended to make sure that the black man was not to be hanged “for a crime for which the white man is not to be hanged.”

These were the only considerations and intentions that Congress would agree to. The radicals recognized this. Kelley of Pennsylvania, Schenck of Ohio, Eckley of Ohio, Thad Stevens himself confessed that the amendment, in its final form, fell short of their vengeful desires.(22) The amendment, said Stevens, covered only civil rights — it “does not touch social or political rights.”(23) And when the resolution finally was approved, on June 13, could it be said the radicals had won? Obviously not: “Why, we defeated every radical proposition in it,” remarked John Sherman of Ohio.(24) It was not what the radicals wanted, says Professor James: “It was the best that they could get.”(25)

It was the best they could get, for obvious reasons: Laws restricting the Negro, in one way or another, obtained in 1866 not only in the vanquished South, but also in the victorious North. Had the Fourteenth Amendment been intended to prohibit segregated schools, or to abolish State laws against inter-racial marriage, the amendment would have been rejected by the North regardless of what the South might have done about it. This consideration was so plain that it did not warrant discussion.

The Congress itself, it is clear, did not regard racial separation as inherently evil: It separated white and Negro in the congressional galleries. More importantly, on May 8, 1866, barely a month before both houses approved the Fourteenth Amendment, the Senate passed a bill (it became law in July) that established segregated schools in Washington and Georgetown “for the sole use of . . . colored children.”(26) It is utterly incomprehensible that a Congress, if it intended the Fourteenth Amendment to prohibit racially separate public schools, simultaneously would have provided for such schools. Yet that is precisely what the 39th Congress did. That is what the Congress, for more than eighty years thereafter, was to provide in Washington.

Nor did the ratifying States have the slightest doubt on this point. In Maine, New Hampshire, Vermont, Oregon, and Wisconsin, Negro populations were so infinitesimally small that the question did not arise. This same thing was essentially true of Connecticut, Iowa, Massachusetts, Michigan, Minnesota, Nebraska, and Rhode Island, where segregated schools either had been prohibited before the Fourteenth Amendment came along, or were prohibited contemporaneously with its adoption. But witness the roll call of States in which the same legislatures that ratified the Fourteenth Amendment also provided for segregated schools: Alabama, Arkansas, Georgia, Kansas, Kentucky, Mississippi, Nevada, North Carolina, Tennessee, Texas, Virginia, and West Virginia. We may also note seven States in which segregated schools existed both before and after their ratification of the amendment: California, Illinois, Missouri, New Jersey, New York, Ohio, and Pennsylvania. Let it also be observed that within two years after the amendment had been proclaimed, while it still was fresh in everyone’s mind, Indiana and Maryland joined the other segregation States in establishing racially separate schools.

Indeed, the evidence is plain that many States outside the South fully shared the South’s approval of segregated schools. Was it a Southern governor who recommended, in June of 1867, that white and colored children “not be placed together in the same schools,” since this would “create a dissatisfaction and conflict, and impair the usefulness of the schools”? That was Governor Morton of Indiana.(27) Was it in a Southern State Legislature that the House voted 72-1 for a law authorizing local school boards “to organize and maintain separate schools for the education of white and colored children”? That was Kansas, in 1868.(28) At the time the amendment was under consideration in Ohio, where it first was ratified in 1867 and then rejected in 1868, some ten thousand Negro pupils were in segregated schools in fifty-two of Ohio’s eighty-eight counties.(29) New York City had segregated schools. So did Pennsylvania, for a period of thirteen years after ratification of the amendment. In West Virginia, the Legislature that ratified the amendment on January 16, 1867, on February 27, 1867, adopted a statute providing that “white and colored persons shall not be taught in the same schools.” Consider any State then in the Union or, if you please, out of the Union: In every case, without a single exception, the understanding of the amendment’s effect on public education was perfectly accepted: It was not intended to prohibit the establishment and maintenance of racially separate schools.

This plain, unequivocal agreement was comprehended not only by the Congress and by the State legislatures, but by both State and Federal judges also. In case after case, in the highest State courts, the propriety of separate schools repeatedly was upheld. When the question first reached the Supreme Court of the United States, the Court thought it too plain for argument. This was the case of Plessy vs. Ferguson, involving racially separate facilities in rail transportation. In upholding a Louisiana statute, the Court held that such laws

have been generally, if not universally, recognized as within the competency of the State legislatures in the exercise of their police power.

And the Court added, matter-of-factly:

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.(30)

This same opinion was reiterated by a unanimous Court in 1899,(31) and again was upheld by a unanimous Court as recently as 1927. In Gong Lum vs. Rice, Chief Justice Taft spoke for a Court that included such luminous minds as those of Brandeis, Holmes, and Stone. “Were this a new question,” said the Court, and let that qualification be noted carefully: Were this a new question, “it would call for very full argument and consideration. . . .” But it was not a new question:

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.(32)

The power of the States to operate separate schools for Negroes and whites, said the Court, “does not conflict with the Fourteenth Amendment.”

Now, the position taken by the Southern States today once was summed up clearly by Sutherland. He agreed, in one of his dissenting opinions, that the Constitution is not static—that it is absurd to pretend an absolute rule of stare decisis should be applied to constitutional constructions. The Constitution, he said, of course “is made up of living words that apply to every new condition.” Then he added:

But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply now to a situation to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.(33) [Emphasis supplied.]

This was exactly what Hughes had in mind in the Carter case when he asserted, on a question of labor relations, that if the people wanted to vest such power in the Congress, they could do so “in the appropriate manner,” but “it is not for the court to amend the Constitution by judicial decree.”(34) This was what Washington had in mind, in his farewell address: “But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” So, too, with Madison, in his Virginia Report of 1799. So, too, with Jefferson: Should grave question arise, he said, of whether a governmental power had been delegated or reserved, it is not for the Supreme Court to decide: “A convention of the States must be called to ascribe the doubtful power to that department which they may think best.”(35)

It is idle to pretend in the matter under review that some new or different problem is involved in the operation of public schools, as of 1954, that was not involved in the public schools as of 1868. There were public schools then; there are public schools now. There were Negro pupils then; there are Negro pupils now. To be sure, it is popularly believed that the schools are better now: They teach band, basketweaving, and traffic safety. It is urged that the Negro is vastly different now—more cultured, more cultivated. But assuming all this to be true, the plain fact remains that if schools and society have changed, the Constitution has not changed by an applicable comma. And it is the Constitution, not the lamentations of Gunnar Myrdal, that remains the supreme law of the land. If it be the will of three-fourths of the States to amend the Constitution so as to prohibit the operation of separate schools, then let the States, so desiring, get on with the job of constitutional amendment. But only the States can amend the Constitution—the Court cannot.

The proposition can be challenged only by those centralists who are prepared to scrap the Constitution altogether—to brush aside Article V and the Tenth Amendment as if these provisions simply did not exist. They must interpolate into Article VI some new language that would make it read, “The Constitution as interpreted, modified and revised by decrees of the Supreme Court, and the laws of the United States which shall be made in pursuance thereof,” etc., shall be the supreme law of the land. But the Constitution does not say this. The Constitution, in Article VI, does not mention the Supreme Court. What is to be the supreme law of the land? The Constitution itself, the laws made in pursuance thereof, and the treaties made under Federal authority. That is all. The Court’s sole authority is to decide cases in law and equity arising under the Constitution; and in deciding them, it cannot validly go beyond the plain boundaries of the Constitution. When it steps beyond the limits of interpretation, and crosses over into substantive amendment, it has usurped a power never delegated to the Federal judiciary.

When the American people come to the conclusion that the judiciary of this land is usurping to itself the functions of the legislative department of the government, and by judicial construction only is declaring what should be the public policy of the United States, we will find trouble. Ninety millions of people—all sorts of people—are not going to submit to the usurpation by the judiciary of the functions of other departments of the government.(36)

Nor have the apprehensions voiced by Harlan been confined to liberals of the turn of the century. It was Mr. Justice Holmes, dissenting in 1930 in Baldwin vs. Missouri, who criticized his brethren for “evoking a constitutional prohibition from the void of ‘due process of law.’” Looking at the declining status of State rights then, Holmes remarked that he could see “hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this court as for any reason undesirable.” And he added:

I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.(37)

So, too, Mr. Justice Black, who a decade ago was inclined to insist upon a strict adherence to the Constitution. He denounced the theory that the Supreme Court has some boundless power under “natural law,” by which the Court periodically may “expand and contract constitutional standards to conform to the Court’s conception of what at a particular time constitutes ‘civilized decency’ and ‘fundamental liberty and justice.’“ Any such theory, he said, tends to degrade Constitutional safeguards and simultaneously to appropriate to the Court “a broad power which we are not authorized by the Constitution to exercise.” It is not for the Court, he concluded ringingly, “to roam at large in the broad expanses of policy and morals and to trespass, all too freely, on the legislative domain of the States as well as the Federal Government.”(38)

Chief Justice Vinson made the same point in Barrows vs. Jackson: “Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to the settled rules which restrict the exercise of our power to judicial review. . . .”(39) And even Mr. Justice Douglas, of all people, once also recognized the dangers described by Harlan and Black and Vinson. He said this:

From age to age the problem of constitutional adjudication is the same. It is to keep the power of government unrestrained by the social or economic theories that one set of judges may entertain. It is to keep one age unfettered by the fears and limited vision of another. There is in that connection one tenet of faith which has crystallized more and more as a result of our long experience as a nation. It is this: If the social and economic problems of State and Nation can be kept under political management of the people, there is likely to be long-run stability. It is when a judiciary with life tenure seeks to write its social and economic creed into the Charter that instability is created. For then the nation lacks the adaptability to master the sudden storms of an era. It must be remembered that the process of constitutional amendment is a long and slow one.(40) [Emphasis supplied.]

Mr. Justice Douglas, of course, tends to forget his own sage advice in the promotion of his own odd concepts of sociology and economics. He is not the first to do so, nor the first to corrupt the Constitution in the process. It was neither a Talmadge nor an Eastland that said of the Court:

The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our Constitution from coordination of a general and special government to a general and supreme one alone. This will lay all things at their feet.(41)

That was Thomas Jefferson, late in his life. It was Jefferson who saw the Supreme Court “advancing with a noiseless and steady pace to the great object of consolidation.” It was Jefferson who warned most clearly, that “You will have a . . . difficult task in curbing the Judiciary in their enterprises on the Constitution.”

Granted that the task is difficult, let the question be raised once more that has been posed from time to time throughout this essay: How is the judiciary to be checked and brought to an accounting? Or is the high Court alone, of all agencies of government, to go unchecked—never challenged effectively, never subjected to the direct approval of the people? If it be conceded that the Court has the power to take one reserved right from the States or the people, then what restrains it from seizing all rights? Can it be true, as Stone remarked in the Butler case, that “the only check upon our own exercise of power is our own sense of self-restraint”? If this be true, then a judicial oligarchy has been substituted for a republican government, and a divine right of judges has replaced the divine right of kings. Five men—a majority of one on a Court of nine—may effectively arrogate unto themselves the sovereign powers of not fewer than three-fourths of the States.

It cannot be imagined that a free people have thus abandoned the effective control of their fundamental law. Judges are not divine; they are most pathetically mortal: In the brief span of Sixteen years, between 1937 and 1953, the Court reversed itself not fewer than thirty-two times on questions of constitutional law. It was no Southern editor, but a member of the Court, Mr. Justice Roberts, who remarked despairingly in 1944 that the stream of reversals

indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors. . . . [It] tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.(42)

The fundamental law of this Union cannot be maintained on any basis so “flexible” or “dynamic” as this. What the South says, in the matter of school segregation, is that the Court settled the question nearly sixty years ago. The Southern States thereafter had every right of law, and every guarantee of honor and fair dealing, to believe that they were proceeding constitutionally in erecting and maintaining a system of racially separate schools. Had there not been such assurance—had there ever been a question of their reserved powers—this system would not have been established. The schools would not have been built, or would have been differently built.

It was Trumbull of Illinois, certainly no Southern sympathizer, who declared in 1872 that “the right to go to school is not a civil right and never was.”(43) The “right” of United States citizens, preserved from State abridgment by the Fourteenth Amendment, is a right to substantially equal schools, not to the same or identical schools. And it is the earnest contention of the South today that however imperfect its efforts may have been in a poverty-stricken past to provide equal facilities for the children of both races, it approaches that constitutional objective now. The sole function of the courts, in the eyes of a South pleading for stability in our basic law, is to see to it that the intention of the law is fulfilled while the powers of the States over essentially domestic affairs are left unimpaired.

NOW, THE greatest of the State powers over essentially domestic affairs is the State’s “police power.” It is the power the people themselves exercise when they prohibit beer in Kansas and authorize casinos in Las Vegas; it covers the whole fabric of community relations, provides for public order, and undertakes to establish “for the intercourse of citizen with citizen, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights.”(44)

In the States of the Old South and the Deep South, legislative bodies over a long period of years—with the complete sanction of Federal courts—have exercised their reserved police power to require a separation of white and Negro races in certain areas of public life. Outside the South, the South’s requirements for racial separation often are regarded as capricious and arbitrary, based upon mere bigotry or blind prejudice. There is a feeling on the part of our critics that police power is being abused.

It is not the primary purpose of this essay to defend school segregation, or to dwell at any length upon the conditions by which the practice may be justified in the South today. To paraphrase Mr. Chief Justice Marshall, it is a Constitution that is being here expounded. Yet some of the considerations that are uppermost in the minds of the South may well be sketched briefly, if only to emphasize the wisdom of the constitutional reservation to the States of control over essentially domestic affairs.

It was William Alexander Percy (and the Southern Negro had no truer friend) who once commented that white and black in the South, however, strongly they may exchange affections, understand each other not at all. Between them, he said, is “a barrier of glass: you can’t see it, you only strike it.” An understanding of this glass wall of separation is basic to any understanding of the American South, yet nothing is more difficult for the visitor, intent upon diagnosing our social ills, to recognize or to comprehend. We of the South live, by necessity and perhaps by instinct, in a dual society. Though white and Negro may stand patiently in queues together, side by side in supermarkets and country stores; though we sleep at night a few hundred feet or a few acres apart, white and Negro dwell in essentially separate worlds. On this basic separation, the whole structure of Southern society is erected. Remove these pillars, tamper with them, undermine them, and the structure falls.

The undisciplined passions which find one outlet in sex find another in crime. There were in Richmond in one recent year thirty-four homicide cases; of these, twenty-eight were killings of Negroes by Negroes. It was a wholly typical year. The evidence in these cases follows a constant and elemental pattern: The unfaithful woman, the triflin’ man; a fancied wrong, a bloody vengeance. Yet as often as not, the evidence discloses no reason—no white man’s reason—that conceivably might justify murder: A quarrel, not even a serious quarrel, and suddenly a razor flashes or a gun explodes. Monday morning in a Southern police court is a strange recital of Saturday nights in Jackson Ward. What was the fight about? The defendant is mystified. “Me and Willie,” he says winningly, “we’s friends, judge.” And where is Willie? He lies in St. Philip Hospital, with forty-two stitches in his side.

What is it that the Court, in effect, has commanded the South to give up? It is no less than this: The basis of the South’s society, the vitality of her culture. The Southern States are ordered, subject to drastic penalties, either to abandon their schools or to breach the immutable law by which the South’s character has been preserved. And the law is this: That white and black cannot come together, as equals, in any relationship that is intimate, personal and prolonged. And when to these guides are added further considerations of sex, and of compulsion, the barrier is complete.

One thing more should be said: The South does not regard itself, in maintaining school separation, as “indicting a whole race.” Every informed Southerner acknowledges—of course he acknowledges—that there are first-class Negro communities and hosts of decent, respectable, law-abiding Negro teachers, bankers, students, artisans, and servants. The South knows this better than any other region. For in no other part of the country has the industrious Negro advanced further, or progressed more rapidly, or been more rewarded for individual merit than in the Southern States. The pity is that the industrious are relatively so few.

So far as the Negro student’s “right” is concerned in the matter at bar, he holds no right to an education at public expense. No one does. The maintenance of public schools is a State and local function, to be continued or abandoned as the people choose. In the field of education, all that is required is that, if public education be provided, substantially equal opportunities shall be made available to all. The Fourteenth Amendment, to quote Thomas Cooley, never was intended to require “that every person in the land shall possess the same rights and privileges as every other person.” The amendment, he said, “contemplates classes of person, and the protection given by the law is to be deemed equal, if all persons in the same classes are treated alike under like circumstances and conditions both as to privileges conferred and liabilities imposed.”(45)

In following Cooley’s maxim in the establishment of separate schools, the Southern States do not comprehend that they are doing anything more than is done in countless other fields. Automobile liability rates, for one example, commonly are fixed by public bodies at a higher level for drivers under twenty-five than for drivers over that age. Does this imply that all drivers under twenty-five are unusual accident risks? Of course not. Thousands of responsible teen-agers are better drivers than their fathers. What the rates reflect is the demonstrably higher incidence of accidents among younger drivers as a class. Is there at Harvard or Chicago some precocious lad, a Phi Beta Kappa and still in his teens? And is he denied the “right to vote,” though his intellectual qualifications are infinitely superior to those of the ward boss? It is because those under twenty-one, as a class, are treated differently from their elders in matters of franchise. The whole structure of our income tax, for another example, rests upon class legislation. The class of individuals earning $100,000 a year fares far differently from the class earning $3,000, yet it is not contended that “equal protection” is violated in tax rates that vary from 20 per cent to 90 per cent.

Finally, it may be recalled that in Minnesota, whence cometh Senator Humphrey and other strong advocates of integration, there once was a law which prohibited the sale of alcohol to Indians. Was this an unconstitutional imposition upon the red man? Not so, said the Supreme Court of Minnesota:

The statute is a police regulation. It was enacted in view of the well-known social condition, habits and tendencies of Indians as a race. While there are doubtless notable individual exceptions to the rule, yet it is a well-known fact that Indians as a race are not as highly civilized as white; that they are less subject to moral restraint; more liable to acquire an inordinate appetite for intoxicating liquors, and also more liable to be dangerous to themselves and others when intoxicated.(46)

And Minnesota’s Chief Justice Rudkin added that the law was in no way “arbitrary class legislation.” The difference in conditions between “Indians as a race and the white race,” he said, “constitutes a sufficient basis of classification.”

Perhaps Senator Humphrey would insist that Minnesota was wrong then (this was 50 years ago), in legislating as to Indians and liquor, and declare the Southern States equally wrong today, in legislating as to Negroes and schools. Perhaps he would and perhaps some would agree. Yet is it not equally conceivable that the people of Minnesota, in their wisdom, were right then, and that the South is equally right today? Is it not possible that in each generation, in each society, the people who compose it and give their character to its institutions are themselves the best judges of the prudent exercise of the regulatory powers with which they invest their government? Surely that has been the rule of “police power” through our history. It is a good rule now.

ONE WAY or another, for good or ill, the South will live through the problems created by the Court’s opinion of May 17, 1954. As this is written, a sort of lull has come upon us. What began as a sudden and violent storm in the summer of 1954 has settled down in the late autumn of 1956 to slow and steady rain. Now and then, as in Sturgis and Clinton, lightning flashes; but over most of the South, the people have closed their shutters. From time to time we even talk of other things. Many of us had begun to think we never would. Compulsory race-mixing is progressing gradually through the border States, but the movement has not advanced to the point that a permanent pattern has emerged. Here and there in the cities, as in Washington, it seems evident that integration in schools in time will result in greater segregation of neighborhoods. In most urban areas, the prospect is that the court’s sociological objective will be effectively frustrated simply by the unwillingness of a free people to be coerced into a pattern of living unacceptable to them. It is far more difficult to venture predictions as to rural areas, especially in the Deep South. Here the melancholy prospect is that, driven to a hard choice of bitter alternatives, many counties will abandon public education altogether. Compelled finally to choose between mixed schools and no schools, they will take no schools—that is to say, no public schools, for white parents, at least, may be expected to form private educational corporations and educate their children without tax support.

Now, with the Negro’s threat to the white South’s schools, the customs that had been yielding have stiffened again. Until May of 1954, Southern cities were building public swimming pools, white and Negro, with public funds; that work has stopped. The increasing pattern, in both urban areas and in rural communities, is one of private recreational corporations, financed by individual families for their own use only. In one Virginia community, which had for years operated a municipal golf course with certain days set aside for Negro use, Negroes sued for completely integrated operation. The suit never even came to trial. The course simply was sold the next day, in fee simple, to a fraternal lodge; and the sign at the front gate now reads, For Members and Guests only.

The decision in the school segregation cases was not the first major usurpation of power by the Supreme Court in the postwar period. It was merely the most flagrant. It is keenly important to understand that the trend put newly in motion under Vinson’s Court continues, at increasing speed, under Warren’s administration. If States outside the South are to comprehend the peril before them, they would do well to look beyond the frontal fight of Brown vs. Board of Education to the flanking decisions in which State powers also are being steadily destroyed.

Let us go back, then, to June 23, 1947. That was the day the Court, by a 6-2 decision, undertook on its own fiat to seize for the United States government “the lands, minerals and other things of value” underlying the Pacific Ocean along the coast of California for a distance three miles seaward from the ordinary low water mark. This was the first “Tidelands” case.(47)

As Justice Black defined the issues, four principal questions were presented. On each of these, the majority of the Court ruled flatly against the position taken by California.

California first raised an entirely proper question of jurisdiction. Under the Constitution, the Supreme Court has original jurisdiction “in all cases . . . in which a State shall be Party.” It was California’s contention, and an entirely sound one, that this was no “case” in the plain and commonly understood meaning of the word. This was not a legal proceeding in which one State, or two States or three States, had filed suit against the State of California. It was, in brief, a proceeding in which the national government was suing a State; but if it ever crossed the minds of Justice Black that the Supreme Court, as the judicial branch of the national government, was not the proper forum in which to hear the national government’s claim against a State, no such concern may be found in his opinion. He was satisfied that the “conflicting claims of governmental powers,” which is to say, conflicting claims of Federal and State officials, should be disposed of by the Federal Court.

California contended, secondly, that if one State were to be sued by all the States collectively, then some such authorization for the proceeding should be shown. Had Congress authorized the suit? Plainly, Congress had not. Indeed, Congress twice had refused to grant such authority to the Attorney General (in 1937 and 1939), and in 1946 had approved a joint resolution (vetoed by the President), in which the States were given quitclaim to the three-mile belt. The majority of the Court ruled that the Attorney General, whether or not Congress approved, had sufficient authority vested in his office to bring the action anyhow.

Finally, the Court majority swept aside California’s defense that over a long period of years, agents and agencies of the Federal government repeatedly had acknowledged California’s dominion over the off-shore properties. The Federal government, indeed, had acquired title to some of this land by deed from the State; the Department of the Interior had denied coastal leases on the ground that California owned the lands. Perhaps officials of the government had been negligent, Mr. Justice Black agreed. It did not matter. Federal ownership was not to be denied “by the ordinary court rules” of civil cases. Mr. Justice Black would make up new rules. The majority ordered an appropriate decree prepared.

This ownership in California would not interfere in any way with the needs or rights of the United States in war or peace. The power of the United States is plenary over these undersea lands precisely as it is over every river, farm, mine, and factory of the nation.(48)

Mr. Justice Frankfurter, as is his custom, approached the matter obliquely. He laid down the view, in his dissenting opinion, that no one owned the land: It was simply “unclaimed land.” He said this:

Of course the United States has “paramount rights” in the sea belt of California—the rights that are implied by the power to regulate interstate and foreign commerce, the power of condemnation, the treaty-making power, the war power. We have not before us the validity of the exercise of any of these paramount rights. Rights of ownership are here asserted—and rights of ownership are something else. Ownership implies acquisition in the various ways in which land is acquired—by conquest, by discovery, and claim, by cession, by prescription, by purchase, by condemnation. When and how did the United States acquire this land?”(49)

The answer, Mr. Justice Frankfurter implied on the following page, was that his colleagues had acquired it just now. They had undertaken to establish a federal interest “by sliding from absence of ownership by California to ownership by the United States.”

Three years later, on June 7, 1950, the Supreme Court continued its slide. Louisiana had resisted the Court’s usurpation of her property, just as California had resisted. The Court paid as little attention. Louisiana raised the same jurisdictional objection; this time the Court did not even discuss the point. Louisiana had conceded, willingly, that the Federal government had “paramount rights” in the property “to the extent of all governmental powers existing under the Constitution, laws and treaties of the United States.” But the Court majority, speaking this time through Mr. Justice Douglas, was not interested in rights acquired pursuant to the Constitution, laws and treaties. The Court was busy forging new law of its own. Thus, “the claim to our three-mile belt was first asserted by the national government” (this, in the teeth of overwhelming evidence to the contrary), and “the marginal sea is a national, not a State concern.” Louisiana had not denied it. But “concern” is one thing, Louisiana argued, and ownership quite another. Mr. Justice Douglas could not see the distinction. The California case, he held, was controlling.(50)

On the same day, again speaking through Douglas, the Court brushed aside a solid case established by the State of Texas for continued ownership of her own offshore land. Texas had an even better case than California and Louisiana could offer, for there was no question—rather, it was thought there was no question—of the terms and conditions under which the independent Republic of Texas had been annexed to the United States a century before. Mr. Justice Douglas handsomely agreed that prior to admission, Texas was an independent nation which possessed “not only full sovereignty over the marginal sea but ownership of it, of the land underlying it, and of all the riches which it held.” But when Texas became a State, by his reasoning, the “equal status” doctrine came to apply in reverse: Texas did not gain what other States had claimed; it lost what it clearly had.

In his own separate dissent, Mr. Justice Frankfurter remarked briefly, with a strange deference to stare decisis—a deference not to be visible four years later—that “time has not made the reasoning of United States vs. California . . . more persuasive, but the issue there decided is no longer open for me.” In the Texas case, he was satisfied that the lands in controversy “were part of the domain of Texas when she was on her own.” And he added: “The court now decides that when Texas entered the Union she lost what she had and the United States acquired it. How that shift came to pass remains for me a puzzle.”(51)

There was no puzzle here. The United States never acquired the contested coastal lands by any valid process. A majority of the Supreme Court simply seized them. And it took a subsequent act of Congress to put them back again.

The Court has not been content to claim fields of oil; in the steady move toward aggrandizement of the Federal government, it has claimed whole fields of law also. This is the process of “preemption,” by which the Court holds that where Congress has occupied one area of government regulation, the States may not be there too: Congress has “preempted” the field as a whole.

Cases from Pennsylvania, Illinois, and Texas may illustrate the point. In December, 1953, the Court decided the case of Garner, et al, trading as Central Transfer Co. vs. the Teamsters Union.(52) Here the facts were that four of Garner’s twenty-four employees belonged to the Teamsters Union. His was a small operation; he had no objection if all the workers joined—it was a matter for the workers themselves to decide. This attitude of indifference was not the sort of cooperation the union thought sufficient, so the union began picketing Garner’s terminal. There was no controversy, no labor dispute, no strike—but the effect of the picketing was to destroy Garner’s business. His volume of freight declined by 95 per cent as shippers’ unionized drivers refused to cross the picket line. In desperation, he obtained an injunction from a State court under the Pennsylvania Labor Relations Act, to put an end to the picketing. The Pennsylvania State Supreme Court, by a divided ruling, reversed the trial court and ordered the injunction dissolved. It was the appellate court’s view that Garner’s grievance fell within the purview of the National Labor Relations Board, and hence that a State remedy was precluded.

With this viewpoint, the United States Supreme Court agreed. It affirmed the Pennsylvania Supreme Court. Clearly, said Mr. Justice Jackson, Congress had vested the NLRB with power to hear such complaints. The only question was whether a State, through its own courts, could extend its own form of relief also. He thought not. Congress had confided primary interpretation of “unfair labor practices” to a specific and specially constituted tribunal of the Federal government. “Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of the substantive rules and to avoid diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.” That is a long and misty sentence, but the meaning emerges on examination: In the eyes of the Court, uniformity is the thing; conformity is to be revered; diversity and variety (which is to say, locally administered law to deal with local problems) must be deplored. Mr. Garner’s plea in this case was that a local Pennsylvania court could act promptly—it could provide a timely remedy which might mean something; a petition to the NLRB might languish for months while his business declined to nothing at all. Mr. Garner’s small problem moved the Court not at all. “A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” This doubtless was a great solace to the plaintiff.

Attention also may be directed to another opinion affecting the trucking industry, just one year later. In this case,(53) Attorney General Latham Castle of Illinois argued vehemently in behalf of an Illinois statute which permitted the State itself to crack down effectively on willful violators of the State’s load limit law. It was shown that a truck line repeatedly had ignored the State’s limits on gross weight and axle weight. When all else failed, the State sought to prohibit the trucker from using State highways for a period of 90 days. But the trucking company contended—successfully—that the State of Illinois could not thus deny him the use of Illinois highways. When he operated in interstate commerce, said the trucker, he operated under the protecting wings of the Interstate Commerce Commission and the Federal Motor Carrier Act.

Quite true, said Mr. Justice Black for a unanimous Court. When Congress adopted a “comprehensive plan” for regulating the trucking industry in interstate commerce, the “former power of States over interstate motor carriers was greatly reduced.” No power at all, said the Court, was left in the States to determine what carriers could or could not operate on their highways in interstate commerce. The carriers might violate every law on the books of the State; they might ruin highways with excessive gross loads; they might weaken bridges by repeated strain upon them. And what could the States do? The States could rely upon “the conventional forms of punishment”; the States could plead with the ICC; but the one punishment that would mean the most—to deny a carrier the use of State roads until he behaved—that punishment the States could not impose. Only an agency of the Federal government could do that.

One of the most startling encroachments by the Court upon State powers occurred on April 2, 1956, when the Court, by a 6-3 decision, dismissed Pennsylvania’s prosecution against Steve Nelson, an admitted Communist.(54) Here the issue, again, was one of Federal preemption—or as Mr. Chief Justice Warren termed it, the “supercession” of State laws. Nelson had been convicted in the trial courts of Pennsylvania for violation of a State anti-sedition act. There he had been sentenced to prison for twenty years, and fined $10,000 plus court costs of $13,000. The State Supreme Court had reversed the conviction on the single, helpless ground that the United States government had so preempted the field of sedition law that Pennsylvania’s State law, covering the same offenses, lacked validity.

Mr. Chief Justice Warren and his colleagues upheld this view. Surveying all the acts passed by Congress against sedition, the Court majority found the conclusion “inescapable that Congress has intended to occupy the field of sedition.” Taken as a whole, said Warren, the several Federal acts “evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it.” And among other things, in the majority’s view, to permit State prosecution of sedition would be to present “serious danger of conflict with the administration of the Federal program.” Quoting from the Garner case, Warren found it exceedingly unwise to permit the States “to exercise a concurrent jurisdiction in this area.” The States, he feared, might get in the way: That would never do. Therefore, “since we find that Congress has occupied the field to the exclusion of parallel State legislation, that the dominant interest of the Federal government precludes State intervention, and that administration of State acts would conflict with the operation of the federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unassailable.”

Nevertheless, the decision of the majority, of course, prevailed. And in one contemptuous sweep of the pen, the concept of a union of States was further degraded. The States were left, gratuitously, with a meaningless power to punish acts calculated to overthrow a State government, but they were denied (in the language of the dissenting opinion) their plain right “to punish local acts of sedition, nominally directed against the United States.”

It may be argued, perhaps, that the importance of the Nelson case has been over-inflated. Few of the forty-two States with anti-sedition acts ever had launched so much as a single prosecution under their laws. Yet from a broader standpoint, the importance of the majority opinion in the Nelson case scarcely can be overemphasized. In the very act of adopting their anti-sedition acts, the States had exercised some of the old and far-off prerogatives of sovereign States. The significance of the Nelson opinion is to be found in the fact that the Court recognized these stirrings of sovereign spirit, and set about to quash them. In the eyes of the Court majority, for the States to punish sedition would be for States to behave as States. And this, above all things, the States must never be permitted to do.

Just three weeks after the Nelson opinion came down, the cause of States’ rights was even more seriously crippled by the court’s ruling in Griffin vs. Illinois.(55) Curiously, this far-reaching 5-4 decision of the Court claimed little attention. A more damaging blow against the concept of State sovereignty seldom has been struck.

Here the facts were that two men, Griffin and Crenshaw, had been convicted in Illinois of armed robbery. Immediately after their conviction, they had filed a motion in the trial court demanding that a stenographic transcript of the record be furnished them without cost. The State law on the subject limited such free transcripts to pauper defendants placed under sentence of death; in all other cases, State law permitted appeals to be taken simply on a narrative record of alleged errors in the trial, plus a complete bill of exceptions. The petitioners argued that lack of a stenographic transcript would prevent them from the “equal protection of the law” that might be enjoyed by wealthy defendants in the same position.

The court majority, speaking through Mr. Justice Black, sympathetically agreed. For the purposes of their decision, the majority assumed that the two felons, if only they had a transcript, could point to reversible error in the trial court proceedings. This was unthinkable: “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race or color. . . . There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. . . . There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

Four members of the Court, to judge by the tone of their dissenting opinions, were sorely concerned at the majority’s palpable intrusion upon long-established prerogatives of the States. In a beautifully reasoned dissenting opinion, Mr. Justice Harlan pointed out, gravely, that the effect of the majority’s opinion would be to create “a host of problems affecting the status of an unknown multitude of indigent convicts.” The record, he insisted, was too obscure possibly to justify a decision of so sweeping an impact. Apart from this, he sharply attacked the majority’s plea that “the poor” and “the rich” must fare equally. This declaration, he said wryly, “hardly sheds light on the true character of the problem confronting us here.” What was the true character? Let Mr. Justice Harlan speak at length. What he has to say bears on many other constitutional problems under review in these notes:

Harlan then joined three other members of the Court (Burton, Minton, and Reed) in a separate dissenting opinion emphasizing further objections to the opinion of the majority. The four agreed that free stenographic transcripts in criminal proceedings may constitute “a desirable social policy,” but—let this be noted carefully—

Brief review of two or three more cases will suffice to suggest the trend against the States. We may study with profit the Phillips case, decided June 7, 1954.(56) Here a majority of the Court seized from the Southwestern States the State control of natural-gas production and gathering which historically they had exercised. As Justices Clark and Burton emphasized pointedly in a dissenting opinion, the Natural Gas Act specifically provided that the act was not to apply to the production or gathering of natural gas. “Language could not express a clearer command,” they remarked, yet the majority had rendered the language “almost entirely nugatory.” And they added:

By today’s decision, the Court restricts the phrase “production and gathering” to “the physical activities, facilities, and properties” used in production and gathering. Such a gloss strips the words of their substance. If the Congress so intended, then it left for State regulation only a mass of empty pipe, vacant processing plants and thousands of hollow wells with scarecrow derricks, monuments to this new extension of Federal power. It was not so understood.

Rather, said the dissenting justices, the legislative history of the act, the demonstrable interpretation placed upon the act by the Federal Power Commission, and the obvious prospect that Federal regulation would seriously interfere with State conservation practices—all these considerations established a clear intent on the part of Congress that production and gathering of gas should be exempt from Federal control. “Observance of good faith with the States,” said the minority, “requires that we interpret this Act as it was represented at the time they urged its enactment, as its terms read, and as we have, until today, declared it, viz., to supplement but not to supplant State regulation.”

To understand the legal point at issue, it is necessary to look much farther back, to the time of the Samuel Seabury Report of 1932. That was an investigation into graft and corruption in the municipal government of New York City. During the course of that investigation, a number of city employees were summoned, only to assert before the frustrated Mr. Seabury that a truthful answer to the questions he propounded them might tend to incriminate them, and therefore they declined to answer. In his final report, Mr. Seabury recommended an ordinance that in 1938 became Section 903 of the Charter of the City of New York. It provided that whenever an employee of the city utilized the privilege against self-incrimination in order to avoid answering questions relating to his official conduct, “his term or tenure of office or employment shall terminate and such office or employment shall be vacant.” As the highest courts of New York were to interpret the provision, any employee who invoked the Fifth Amendment was to be deemed, as of that moment, to have tendered his resignation.

Thus when Dr. Slochower, in September of 1952, declined to answer questions concerning his membership in the Communist party in 1940 and 1941, Section 903 came into play. He had been twenty-seven years at Brooklyn College. Abruptly, his tenure terminated. It was the professor’s contention that this summary dismissal (for he did not agree that he had “resigned”) was an infringement upon his guarantee of due process of law. By a 5-4 division, the Supreme Court of the United States accepted his contention. In the eyes of Mr. Justice Clark and his colleagues on the majority, New York City’s Section 903 was a perversion of a constitutional right. The charter section, as they saw it, served to impute “a sinister meaning” to the exercise of the Fifth Amendment; it was as if New York City regarded this privilege “as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Appalled at this thought, the majority denounced “the heavy hand” of New York’s arbitrary statute, and ordered the lower court reversed.(57)

Reed, Burton, and Minton dissented in vigorous terms. They commented that the majority’s opinion “strikes deep into the authority of New York to protect its local government institutions from influences of officials whose conduct does not meet the declared State standards for employment.” Then they made clear what the majority had been strangely unable to see—that New York’s Section 903 established not a judgment of disloyalty, but a standard of propriety. The city “does have reasonable ground to require its employees either to give evidence regarding facts of official conduct within their knowledge or to give up the positions they hold.” An employee who lacks candour, in the eyes of New York, is “a person unfit to hold certain official positions.” New York had decided “it did not want that kind of public employees,” and the dissenting three added: “We think New York had that right.”

Mr. Justice Harlan, dissenting separately, boiled the bone of contention down still further: “In effect, what New York has done is to say that it will not employ teachers who refuse to cooperate with public authorities when asked questions relating to official conduct. . . . I think that a State may justifiably consider that teachers who refuse to answers questions concerning their official conduct are no longer qualified for public school teaching, on the ground that their refusal to answer jeopardizes the confidence that the public should have in the school system.”

But the Supreme Court of the United States held otherwise. Speaking through Mr. Justice Douglas, the Court declared that Congress had acted within its powers in 1951, when it wrote a sanction for union shop contracts into the Railway Labor Act. The Court was careful to point out that its decision was directed to one narrow issue: If the objecting workers found their political freedom infringed, or other personal liberties denied them by union coercion, they might return to the courts for redress. But the union shop clause was an “allowable” provision for facilitating interstate commerce, and the court would not interfere.

The question is one of policy with which the judiciary has no concern. . . . Congress, acting within its constitutional powers, has the final say on policy issues. If it acts unwisely, the electorate can make a change. The task of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises. The ingredients of industrial peace and stabilized labor-management relations are numerous and complex. They may well vary from age to age and from industry to industry. What would be needful one decade might be anathema the next. The decision rests with the policy makers, not with the judiciary.(58) [Emphasis supplied.]

A citizen of Virginia may perhaps be forgiven some bitterness, as he reads over this pious dictum from the Supreme Court of the United States. “The question is one of policy with which the judiciary has no concern.” For nearly ninety years, it has been universally understood that the maintenance of racially separated public schools was a matter of State policy; that the ingredients of this problem were “numerous and complex”; that they varied from age to age and from State to State; that what a State regarded as necessary in one decade it might abandon in the next. And all such decisions had been held to rest with the policy makers, not with the judiciary. For if the policy makers acted unwisely, the electorate could make a change. But the electorate cannot touch a supreme judiciary appointed for life.

“We have come full circle,” said Mr. Justice Frankfurter, concurring in the Hanson case. He was reflecting that in the Adair case (1908), the Court had upheld the “right” of railway companies to deny work to a union man. Now, in 1956, they had upheld the right of unions to deny work to a non-union man. From sanctioning the “yellow dog” contracts of the turn of the century, the Court had come to bless the union shop contracts of our own time. The former were now universally condemned. But the latter? The latter had become “allowable.” And no State could be permitted to say otherwise.

The end of this process is the corruption of a constitutional Union, by judicial fiat, into a consolidated government in which the States are mere political dependencies. The end is a centralization of all meaningful powers in the hands of Federal authority. And so long as the constructions placed by the Court upon the Constitution are agreeable to one-third of the House of Representatives, plus one, timely remedy cannot even be found in constitutional amendment.

A long time ago, a great Virginian had this to say: “So far as our [Federal] government is concerned, I venture to predict that it will become absolute and irresponsible, precisely in proportion as the rights of the States shall cease to be respected and their authority to interpose for the correction of Federal abuses shall be denied and overthrown.”(59)

Abel Parker Upshur’s prediction of 1840 has been grimly fulfilled. The American people have lost sight of the old concept that the States, as such, form the balance wheel—in Upshur’s term, “the only effectual check upon Federal encroachments.” We have lived to see the truth of his prophecy, that the danger to constitutional separation of powers is “not that the States will interpose too often, but that they will rather submit to Federal usurpations, than incur the risk of embarrassing the government, by any attempts to check and control it.”

The States have submitted too long to Federal usurpations. At their grave peril, they can submit no longer. Through every device of interposition they can bring to bear—political, legislative, judicial—once more they must invoke their sovereign powers to insist that Federal encroachments be restrained. Thankfully, half-a-dozen Southern States—Alabama, Georgia, Mississippi, North Carolina, South Carolina, Virginia—have spoken through their legislatures against the Court. The people of Texas and Arkansas, by referendum, have approved the doctrine of interposition. Southerners in Congress have made their position clear in a ringing Manifesto, denouncing judicial legislation. The Supreme Court of Georgia has not hesitated to rebuke the Supreme Court in Washington: “We will not supinely surrender sovereign powers of this State.”(60) This awakening of State sovereignty, met at first with mockery and ridicule, will be met next with all the hostility and force that centralists can bring to bear. If this force is to be overcome, the conservatives of this Republic—those who believe in limited government and in individual responsibility—must be prepared to risk those sacrifices which the hour demands. Others have risked them before—a Matthew Lyon in Vermont, a Michael Bright in Pennsylvania, a Troup in Georgia, a Calhoun in South Carolina, a Booth in Wisconsin, a Sullivan in Ohio, a Young in Minnesota. These and many others, strong in their convictions, have dared to hold their ground when lesser men surrendered.

Yet there is one thing more that also must be done. The States, for their own preservation, must insist upon shouldering those proper responsibilities they too often have abandoned by default. The people will not let the States sink into the insignificance of mere administrative suburbs if the great value and wisdom of local government can be impressed upon them.

“The people’s highest interest,” said Upshur, “is at home; their palladium is their own State governments. They ought to know that they can look nowhere else with perfect assurance of safety and protection. Let them then maintain those governments, not only in their rights, but in their dignity and influence. Make it the interest of their people to serve them: an interest strong enough to resist all the temptations of Federal office and patronage. Then alone will the voice [of the States] be heard with respect at Washington; then alone will their interposition avail to protect their own people against the usurpations of the great central power. It is vain to hope that the federative principle of our government can be preserved, or that any thing can prevent it from running into the absolutism of consolidation, if we suffer the rights of the States to be filched away, and their dignity and influence to be lost, through our carelessness or neglect.”