The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

7

Segregated Schools

The “desegregation” decision in Brown v. Board of Education1 was, as Richard Kluger called it, an act of “Simple Justice,” 2 a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act.3 For the Court, like every agency of government, may act only within the limits of its constitutional powers. As Lee stated in the Virginia Ratification Convention, “When a question arises with respect to the legality of any power, exercised or assumed,” the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.” 4

In his illuminating study of the way in which the desegregation case was handled in the Supreme Court, Kluger asks, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under that amendment?” 5 Given the rampant racism in the North of 1866—which still has to loose its grip—it needs to be explained how a North which provided for or mandated segregated schools6 was brought to vote for desegregation in the Amendment.

When the “desegregation” case came to the Court in 1952, Justice Frankfurter assigned the task of compiling the legislative history of the Amendment to his brilliant clerk, Alexander Bickel,7 who was destined to become one of the foremost authorities in the field of constitutional law. Upon completing the assignment, in August 1953, Bickel delivered his memorandum to Frankfurter with a covering letter in which he stated: “it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” 8 When he later published a revision of that memorandum, he concluded: “there is no evidence whatever showing that for its sponsors the civil rights formula had anything to do with unsegregated schools. Wilson, its sponsor in the House, specifically disclaimed any such notion.” 9 Wilson, chairman of the House Judiciary Committee and the House Manager of the Bill, who could therefore speak authoritatively, had advised the House that the words “civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights.” 10 Wilson’s statement is proof positive that segregation was excluded from the scope of the bill.

Another piece of evidence, which Alfred Kelly, one of the historians drawn into the case by the NAACP,11 considered “very damning,” was the “removal of the ‘no discrimination’ clause from the Civil Rights Bill.” The Bill, he stated, “was amended specifically to eliminate any reference to discriminatory practices like school segregation . . . it looked as if a specific exclusion had been made.” 12 The deletion was made at the insistence of John A. Bingham, the architect of the Fourteenth Amendment, whom neoabolitionists regard as the conduit through which abolitionist concepts of substantive due process and equal protection were poured into the Amendment.13 Roughly speaking, he moved for instructions to the Judiciary Committee to strike the “no discrimination” sentence of the Bill,14 in order to render it “less oppressive and therefore less objectionable.” The enactment of laws “for the general government of the people” was reserved to the States; “civil rights,” he continued, “include and embrace every right that pertains to a citizen as such,” including “political rights.” On this view the Bill, according to Bingham, proposed “simply to strike down by congressional enactment every state constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen.” With “some few exceptions every state in the Union does make some discrimination . . . in respect of civil rights on account of color.” Hence the “no discrimination” sentence “must be striken out or the constitutions of the States are to be abolished by your act.” Deletion of this sentence would remove what he considered the Bill’s “oppressive and I might say its unjust provisions,” all of which adds up to a States’ Rights manifesto. Bingham’s censure, however, does not extend to the enumerated rights that follow the “no discrimination” clause; these he quotes with approval, but asserts that the needed reform should be accomplished “not by an arbitrary assumption of power, but by amending the Constitution . . . expressly forbidding the States from any such abuse [that is, denial of said specified rights] in the future.” 15 In short, the enumerated rights should be protected by Amendment against State abuse, whereas the “civil rights,” which embraced any and every right, should be excised because “oppressive.” In this Bingham was in accord with the restricted objectives of almost all of his Republican colleagues who spoke to the measure.16 Bickel therefore correctly concluded that Bingham, “while committing himself to the need for safeguarding by constitutional amendment the specific rights enumerated in the body of section 1, was anything but willing to make a similar commitment to ‘civil rights’ in general.” 17

Not without cause was this regarded gloomily in the camp of the NAACP. Kluger relates:

Finally, a “light” broke through, “a really plausible interpretation” dawned on Kelly: “Bingham’s objection to the ‘no discrimination’ was based solely on the apparent lack of constitutional authority for so sweeping a congressional enactment.” 19 This was a “light” that failed. Kelly completely overlooked Bingham’s separation between the too-inclusive “civil rights,” which were deleted, and the enumerated rights, which, because they also trenched on traditional State governance, required an amendment. Justice Black understood this if Kelly did not.20

More important, Chairman Wilson confirms that the deletion was merely designed to repel a “latitudinarian” construction:

The deletion, Wilson further explained, was made because “some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” 21

To Kelly, who later defended the desegregation decision, Bickel’s view “seems a very doubtful reading of Bingham’s position. It ignores his extensive extremist antislavery background as well as his position in Congress as one of the strong Radical Republicans.” 22 But neither Bingham’s background nor his position had dissuaded him from opposition to Negro suffrage.23 Moreover, as Bickel informed Justice Frankfurter, “It was doubtful that an explicit ‘no discrimination’ provision going beyond the enumerated rights in the Civil Rights Bill as finally enacted could have passed in the Thirty-Ninth Congress.” 24 At this time “Eight [Northern] states either provided for separate schools or left it up to local communities to adopt that practice if they wished. Five states outside the old Confederacy either directly or by implication excluded colored children entirely from their public schools.” 25 Kluger comments, “If Congress and state legislatures had understood that the amendment was to wipe away the practices, surely there would have been more than a few howls.” 26 With suffrage unequivocally barred there was no reason to infer that desegregation, a far more touchy matter, was required.

Then there was another thorny fact: “Congress had permitted segregated schools in the District of Columbia from 1864 onward.” 27 Sumner’s “long fight to abolish segregated Negro schools in the District of Columbia” had been “unavailing.” 28 With good reason did Judge E. Barrett Prettyman hold in Carr v. Corning29 that congressional support for segregated schools in the District of Columbia contemporaneously with the adoption of the Amendment (and the Civil Rights Act) was conclusive evidence that Congress had not intended §1 of the Amendment to invalidate school segregation laws. Kelly too lightly dismissed this: “technically the parallel is not constitutionally precise or apposite.” 30 To the contrary, the parallel is both “precise and apposite.” It has long been the rule that laws dealing with the same subject—in pari materia—must be construed with reference to each other, “as if they were one law.” 31 The Amendment originated as a congressional Joint Resolution, so it is entirely appropriate to look to the light shed contemporaneously by the District of Columbia bills on the meaning of the Resolution. In truth, it is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States. The difference was fully appreciated by Senator Henry Wilson, a Radical Republican from Massachusetts, who introduced a bill providing for suffrage in the District of Columbia, but lamented that in “dealing with the States,” State “constitutions block up the way and we may not overleap the barriers.” 32

The relation of mixed schools to the limited objectives that were expressed in the Civil Rights Act was lucidly summarized by John L. Thomas of Maryland:

There is yet other evidence that the framers had no intention of striking down segregation. The Senate gallery itself was segregated, as Senator Reverdy Johnson mordantly remarked.34 The Carl Schurz report Education of the Freedmen spoke throughout of “ ‘colored schools,’ ‘school houses in which colored children were taught.’ There were no references to unsegregated schools, even as an ultimate objective.” 35 Instead there was a pervasive assumption that segregation would remain. Referring to the burning of black schools in Maryland, Josiah B. Grinnell of Iowa said, give them schoolhouses and “invite schoolmasters from all over the world to come and instruct them.” Senator Daniel Clark of New Hampshire stated, “you may establish for him schools.” Ignatius Donnelly of Minnesota stated, “Educate him and he will himself see to it that the common schools shall forever continue among his people.” 36 Senator William P. Fessenden said of the “representation” proposal that was to become §2 of the Fourteenth Amendment: it “should serve as an inducement to the southern States to build school houses . . . and educate their colored children until they are fit to vote.” 37 In vetoing the antecedent Freedmen’s Bureau Bill, President Johnson noted that it provided for the “erection for their benefit of suitable buildings for asylums and schools,” and objected that Congress “has never founded schools for any class of our own people.” 38 Thaddeus Stevens “did not publicly object to the separation of the races in the schools although he was against segregation in theory . . . But he never pressed for legal enforcement of this kind of equality, as Charles Sumner did, believing it achievement enough that the South would have free schools at all.” 39

Additional light may be gathered from post–Fourteenth Amendment developments, part of Sumner’s continuing campaign for desegregated schools. On March 16, 1867, Sumner moved to amend a Supplementary Bill to require “that State constitutions provide for a system of non-discriminatory public schools.” The motion failed; it “went beyond what majority sentiment would sustain.” 40 Let an impassioned apostle of the incorporation of abolitionist ideology—Howard Jay Graham—sum up:

The “imperfect” “understanding of equal protection” in 1866 means that the framers did not conceive it in the vastly broadened terms given to the phrase by the Warren Court. How did this history fare in the Warren Court?

In his painstaking reconstruction of the progress of Brown v. Board of Education, Richard Kluger has furnished some fascinating glimpses behind the portals of the Supreme Court.42 The case was first argued before the Vinson Court; Chief Justice Vinson “found it ‘Hard to get away’ from the contemporary view by its framers that the Fourteenth Amendment did not prohibit segregation.” Jackson noted, “For 90 years segregated schools [existed] in the city [Washington].” 43 Frankfurter, “a keen observer of his colleagues’ voting inclinations,” listed Clark—along with Vinson, Reed, and Jackson—as “probable dissenters if the Court voted to overturn Plessy in the spring of 1953.” 44 If they were to be brought about, time was needed; a decision outlawing segregation by a divided Court would have produced tremendous shock waves.45 With Bickel’s aid Frankfurter framed five questions for reargument, which the Court submitted to counsel and put the case over to the next term.46 The Frankfurter tactic paid off in an unexpected way: the sudden demise of Chief Justice Vinson just before the Brown reargument. How much that mattered may be gathered from Frankfurter’s remark: “This is the first indication I have ever had that there is a God.” 47 And that remark also reveals that men and votes, not the impalpable “consensus of society” picked up by judicial antennae, are what count.

The most interesting figure was Frankfurter himself. According to William Coleman, who had clerked for him a few years earlier and was the coordinator of research for the NAACP in the various States, Frankfurter “was for ending segregation from the very start.” 48 A remarkable fact: Frankfurter, the sworn foe of subjective judgment, who disclaimed enforcement of his own “private view rather than the consensus of society’s opinion,” 49 had made up his mind “from the day the cases were taken” 50 that segregation must go! This was before hearing argument or reading briefs in a case of extraordinary national importance.51 Not that he was unaware of the constitutional obstacles. Kluger recounts that Frankfurter “had studied the history of the Fourteenth Amendment” and concluded that “in all likelihood, the framers of the amendment had not intended to outlaw segregation.” 52 His conclusion must have been greatly strengthened by the Bickel memorandum, which he found so impressive that “he had it set up in type in the Court’s basement print shop and distributed among the Justices a few days before the Brown reargument.” 53 Bickel showed, and his demonstration is yet to be successfully controverted, that the 39th Congress meant to leave segregation “as is” —to the States. After the distribution of the Bickel memorandum, Jackson wrote a file memorandum dated February 15, 1954, in which he stated: “despite my personal satisfaction with the Court’s [forthcoming] judgment, I simply cannot find, in surveying all the usual sources of law, anything which warrants me in saying that it is required by the original purpose and intent of the Fourteenth or Fifth Amendment.” 54 He told the Conference that he would “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” 55 This, Kluger comments, was asking the majority to admit that “there was no judicial basis for its decision,” that “it was acting in a frankly unjudicial way.” 56 Kluger considers it “a scarcely reasonable request to make of the brethren.” 57 Why not? What kind of “consensus of society” (which the Court purportedly effectuates) is it that cannot withstand the truth—that effectuation required “new law for a new day”? An adult jurisprudence for an age of “realism” surely called for an end to the pretense that it was the Constitution, not the Justices, who spoke.58 Concealment suggests there may in fact have been no consensus.59 Perhaps Jackson’s insistence impelled Chief Justice Warren—after labeling the history “inconclusive” 60 —to state that “we cannot turn back the clock to 1868,” 61 a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs.62

Justice Frankfurter, the professed devotee of “self-restraint,” reached a similar conclusion, but in different rhetoric. He had asked, Justice Burton noted, “What justifies us in saying that what was equal in 1868 is not equal now?” 63 and in a file memorandum he formulated his own answer:

Although the framers were well aware of the nation’s “expanding future,” they nonetheless, for example, rejected suffrage, “present or prospective.” They knew that Article V provided the means to avoid “congealment,” 65 as was before long evidenced by adoption of the Fifteenth Amendment. The real issue, therefore, was not whether the Constitution must be “congealed,” but rather who was to make the change—the people or the Justices. Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the “changes in men’s feelings” by an amendment, and that in consequence the Justices had to rewrite the Constitution. Even in a memorandum for his own use, Frankfurter could not bring himself to admit that he was “making new law for a new day,” but sought to disguise the fact with “majestic generalities.”

In Chapter 10 I shall show that the framers employed “equal protection of the laws” to express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers. For the stubborn fact is that racism was, and still remains, an ugly fact of American life;66 as Jackson’s file memorandum stated, “Neither North nor South has been willing to adapt its racial practices to its professions.” 67 “It was into this moral void, ” Kluger states, “that the Supreme Court under Earl Warren now stepped,” 68 not to give effect to a national consensus, still less to the Fourteenth Amendment, but to revise it for the people’s own good. But “the criterion of constitutionality,” said Justice Holmes, “is not whether we believe the law to be for the public good.” 69

Supplementary Note on Segregated Schools

brown v. board of education

[1.]347 U.S. 483 (1954).

[2.]Richard Kluger, Simple Justice (1976); hereinafter Kluger.

[3.]“The result,” Archibald Cox stated, “can only be described as a revolution in constitutional law.” The Role of the Supreme Court in American Government 57 (1976).

[4.]3 Jonathan Eliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 186 (1836); Berger, Congress v. The Supreme Court 13–16.

[5.]Kluger 635.

[6.]Infra at notes 24–25.

[7.]Kluger 599, 653.

[8.]Id. 654. Kluger states that the Bickel memorandum held that “the legislative history, while revealing no evidence that the framers of the amendment had intended to prohibit school segregation, did not foreclose future generations from acting on the question, either by congressional statute or by judicial review.” Id. 655; see also 634. But this is at odds with Bickel’s covering letter, supra Chapter 6 at note 7. In fact, as will shortly appear, the framers deliberately excluded school segregation from the ambit of the Civil Rights Bill and therefore of the Amendment.

[9.]Bickel 56.

[10.]Globe 1117. Wilson’s statement is more fully quoted supra Chapter 2 at note 26. He later reiterated that the limited objectives of the bill did not extend to “setting aside the school laws and jury laws.” Globe 1294.

[11.]Kluger 626.

[12.]Id. 635. Among the legal historians drawn into preparation of the briefs by the NAACP was Howard Jay Graham. Id. 625–626. “He was particularly troubled by Representative Wilson’s insistence during the phase of the debates dealing with the ‘no discrimination’ clause that the Civil Rights Bill was not intended to outlaw separate schools. That negative reference, Graham reported, was unfortunate, particularly since he was House Manager of the . . . bill.” Id. 634–635.

The “key session” of the NAACP “giant conference running for three days and nights” was “devoted to the papers of [Howard] Jay Graham and Alfred Kelly on the troubling relationship between the Civil Rights Act of 1866, which had been specifically stripped of its broad ‘no discrimination’ language, and the Fourteenth Amendment, created in its immediate aftermath and conceived, as many historians believed, simply to constitutionalize the rights act.” Id. 637. The paper Kelly delivered was on “the damning modification of the Civil Rights Bill in the House and its apparent identity in purpose with the Fourteenth Amendment.” He recounted that he “didn’t understand the relationship between advocacy and history at that point” and considered the problem “nearly insurmountable.” Id. 637.

[13.]TenBroek 145–148; Graham 280, 283.

[14.]The Bill is set out in pertinent part supra Chapter 2 at note 14. [Justice Harlan pointed out that Bingham, in the meetings of the Joint Committee on Reconstruction, was “successful in replacing section 1 of Owen’s proposal, which read ‘No discrimination . . . as to the civil rights,’ with the ‘abridge the privileges or immunities of citizens.’ ” Oregon v. Mitchell, 400 U.S. 112, 172 (1970) (emphasis added).]

[15.]Globe 1291–1293 (emphasis added).

[16.]E.g., Wilson, supra at note 10.

[17.]Bickel 24.

[18.]Kluger 640–641. The noted historian Henry Steele Commager had advised the NAACP that “The framers of the amendment did not, so far as we know, intend that it should be used to end segregation in schools.” Id. 620.

[19.]Id. 641.

[20.]Justice Black, for whom Bingham is the authoritative expositor, recognized that Bingham objected to the Civil Rights Bill because “it would actually strip the states of power to govern, centralizing all power in the Federal Government. To this he was opposed.” Adamson v. California, 332 U.S. 46, 100 (1947), dissenting opinion.

Kluger 641, relates, “One hurdle in the way of [Kelly’s] reading of Bingham’s intention was a later speech of Thaddeus Stevens, the most powerful man in the House and a strong ally of Bingham. Among other things, Stevens said that a principal purpose of the Fourteenth Amendment had indeed been to re-enact and therefore insure the constitutionality of the Civil Rights Act (even shorn of its broad ‘no discrimination’ language)—an apparent concession to those who wished to interpret the amendment narrowly. But Kelly concluded that the apparently damaging portion of Stevens’ speech had to be considered against the larger political picture and the clear drift of Stevens’ generally radical utterances.” One thing he was plainly not so radical about was desegregation in the schools. See infra at note 39.

[21.]Globe 1366.

[22.]Kelly, Fourteenth 1068 note 73. In this very article, however, Kelly concluded, “It seems highly probable, then, that the Civil Rights Act, as finally passed, was not intended to ban state racial segregation and classification laws. The main force of the Conservatives’ attack on the ‘no discrimination’ clause was that it would indeed destroy all race classification laws.” Id. 1069–1070.

Bingham’s remarks have been subject to varying interpretations, see Bickel 27 note 54; Kelly, Fourteenth 1068. Bickel sums up, “Whatever the ambiguities of his speech, one thing is certain. Unless one concludes that Bingham entertained apprehensions about the breadth of the term ‘civil rights’ and was unwilling at this stage, as a matter of policy, not constitutional law, to extend a federal guaranty covering all that might be included in that term, there is no rational explanation for his motion to strike it.” Bickel 25–26. Certainly Wilson so understood; supra at note 21.

[23.]E.g., supra Chapter 5 at notes 42–43.

[24.]Kluger 654–655.

[25.]Id. 633–634.

[26.]Id. 635.

[27.]Id. The problem also troubled Justice Jackson, infra at note 43.

[28.]Kelly, Fourteenth 1085. For example, when Senator Wilson proposed to allocate funds for the public schools in the District of Columbia, explaining that existing law provided “for the establishment of colored schools” in the District, and the funds would be divided pro rata, Reverdy Johnson asked for and received assurance that “there is no authority to have a mixture of children in any one school.” Globe 708–709.

[29.]182 F.2d 14, 17 (D.C. Cir. 1950).

[30.]Kelly, Fourteenth 1085.

[31.]United States v. Freeman, 44 U.S. (3 How.) 556, 564 (1845). See also infra Appendix A note 46.

[32.]Phillip S. Paludan, A Covenant With Death 50 (1975).

[33.]Globe 263–264. For a similar expression by Patterson of New Hampshire, see supra Chapter 2 at note 30. So, too, Republican Senator Cowan of Pennsylvania was willing to secure to blacks “their natural rights” but not to desegregate the schools. Globe 500. See also Republican Thomas T. Davis of New York, infra Chapter 10 at note 21.

[34.]Globe 766: “Why is it that [you have] separate places for the respective races even in your own chamber? Why are they not put together?”

[35.]Bickel 10 note 29.

[36.]Globe 652, 834, 590; cf. Donnelly, id. 513. Recall Lawrence’s exclusion of “political rights [and] those dependent on local law,” as was the privilege of attending public schools, supra Chapter 2 note 28, and Windom’s statement that the Civil Rights Bill does not confer “the privilege of voting” nor “social privileges.” Supra Chapter 2 note 30.

John F. Farnsworth feared that enfranchisement alone might not suffice if it were dependent on reading and writing qualifications, for the States may “exclude him from the schools.” Globe 383. See also Frederick Pike of Maine, id. 407. Enfranchisement failed, as did attempts to open the schools. See infra note 40.

[37.]Kendrick 206.

[38.]Globe 916.

[39.]Fawn Brodie, Thaddeus Stevens: Scourge of the South 320 (1959). Stevens assured the electorate in September 1866 that the Amendment “does not touch social or political rights.” James 201. Perhaps the reason, as Rogers noted, was that in “Pennsylvania there is a discrimination between the schools for white children and the schools for blacks. The laws there provide that certain schools shall be set aside for black persons,” and inquired whether Congress has a right to “interfere with these statutes.” Globe 1121. Senator Cowan of Pennsylvania objected to such interference. Id. 500.

[40.]Fairman, History 329. Sumner “placed little stress upon the Fourteenth Amendment guarantee of equal protection of the laws; too many of his colleagues who had helped draft that ambiguous document would reply that they had never intended to outlaw segregation . . . When Senator Morrill insisted upon learning exactly where in the Constitution the federal government was given control ‘over matters of education, worship, amusement . . .’ Sumner discovered authorization in the Sermon on the Mount and in the Declaration of Independence.” Donald, Sumner II 532.

As late as December 1871 Sumner reintroduced a bill which had been adversely reported in 1870–1871: “He maintained that hotels, public conveyances and schools . . . should be opened equally to all.” Flack 250. “Without this complementary bill,” the Civil Rights Act “was imperfect, he declared,” Flack 251. Though there was some contrariety of opinion, id. 253–265, the House, by a vote of 128 to 48, insisted on an amendment “striking out all reference to common schools,” id. 275. Senator Morrill opposed the Sumner bill because the “Federal Government had no right to take cognizance of matters of education, amusement . . . it is without warrant in the Constitution,” i.e., the Fourteenth Amendment. Id. 252–253.

[41.]Graham 290 note 70. Nevertheless Graham stated that “no one is obliged or disposed to grant—that an outright majority of 1866–1868 did regard race segregation in their public schools, as a peculiar form of race discrimination—as one which in their judgment, would remain unaffected by the Fourteenth Amendment.” Id. 291.

Compare with the foregoing history, in considerable part earlier set forth by Alexander Bickel, Charles Black’s recent statement: “I started, virtually [as of NAACP counsel], with Brown v. The Board of Education, a case which seemed to me then and still seems to me to have been as nearly syllogistic as a real law case can be. The Fourteenth Amendment, in the clear light of its history, and without any straining or special pleading, forbade all discrimination against black people as such, however euphemized and however daubed with cosmetics.” C. Black, “The Judicial Power as Guardian of Liberties,” statement prepared for delivery at a Symposium on Constitutional Liberties in Modern America, Wayne State University, Detroit, Michigan, October 16, 1976, 2 (emphasis added). Chief Justice Warren’s “syllogisms” are examined infra Chapter 13 at notes 56–60. Black’s “clear . . . history” seemed “inconclusive” to Chief Justice Warren, who chose rather not to “turn back the clock to 1868.” See infra at note 61.

[42.]Among other things, Kluger consulted the notes of Justices Burton, Frankfurter, and Jackson, and interviewed several of the Justices and the Justices’ clerks. Kluger 788–789.

[43.]Id. 590.

[44.]Id. 612, 614; Plessy v. Ferguson, 163 U.S. 537 (1896), the “separate but equal” decision.

[45.]Kluger 600. “Nothing could have been worse, for the Court or the nation itself, than a flurry of conflicting opinions that would confuse and anger the American people.” Id. 696. Desegregation could hardly have been imposed upon the nation by a divided Court; the stakes simply were too high. Frankfurter “played a pivotal role in bringing about a unanimous Court” in Brown. Joseph P. Lash, From the Diaries of Felix Frankfurter 83 (1975).

[46.]Kluger 614–616.

[47.]Id. 656. As Justice Frankfurter was dressing for the Vinson funeral, Bickel overheard him murmuring, “An act of Providence, an act of Providence.” Lash, supra note 45 at 83. Compare this with his condemnation of “Law” that turns on “contingencies in the choice of successors.” Infra Chapter 17 note 44.

[48.]Kluger 624, 601. “When President Eisenhower appointed Earl Warren to the Chief Justiceship, Frankfurter took him to school on the issues in the Brown case in lengthy talks.” Lash, supra note 45 at 83–84. [Alexander Bickel, who was a clerk to Justice Frankfurter at the time Brown v. Board of Education was decided, wrote, “(W)hen the inner history of that case is known, we may find that he was a moving force in its decision.” Alexander Bickel, The Supreme Court and the Idea of Progress 33 (1978).]

[49.]Infra Chapter 14 at note 50. In a file memorandum, the essence of which Frankfurter communicated to his brethren at a conference, he emphasized, “it is not our duty to express our personal attitudes towards these issues however deep our individual convictions may be. The opposite is true.” Kluger 684. [Justice Frankfurter stated, “Nor should resentment or injustice displace the controlling history in judicial construction of the Constitution.” United States v. Lovett, 328 U.S. 303, 323 (1946), concurring opinion.]

[50.]Kluger 601. Bickel justly remarked that were the ultimate “reality” that judicial review spells nothing more than “personal preference,” the judicial “authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy.” The Least Dangerous Branch 80 (1962).

[51.]Justice Jackson “was worried about how a Court decision outlawing segregation could affect the nation’s respect for ‘a supposedly stable organic law’ if the Justices were now, overnight, as it were, to alter an interpretation of the Fourteenth Amendment which had stood for more than three-quarters of a century.” Kluger 604.

[52.]Id. 598. Justice Tom Clark “had been surprised by the legislative history, since he had always thought that one of the avowed purposes of the Fourteenth Amendment had been to abolish segregation.” Id. 682.

[53.]Id. 653.

[54.]Id. 688–689.

[55.]Id. 681, 609.

[56.]Id. 690, 683.

[57.]Id. 683.

[58.]A deterrent, in Justice Frankfurter’s words, was that the decision required “the adjustment of men’s minds and actions to the unfamiliar and unpleasant.” Id. 615. See infra Chapter 14 notes 140, 143, Chapter 23 at notes 30–34.

[59.]Edmond Cahn welcomed judicial intervention precisely because no amendment could have been obtained. Infra Chapter 15 at note 14.

[60.]It had not seemed “inconclusive” to Vinson, supra at note 43; Frankfurter, supra at note 52; Jackson, supra at note 54; Clark, supra note 52; and probably not to Reed, Kluger 595–596, 680–692.

[61.]347 U.S. at 489, 492. Brown told about Warren’s “unabashed and primary commitment to justice and his willingness to shape the law to achieve it.” Paul Murphy, The Constitution in Crisis Times, 1918–1969 312 (1972). For analysis of Warren’s opinion, see infra Chapter 13 at notes 56–61.

[62.]As Graham, 269, stated, Brown v. Board of Education was “decided with scant reference to the historical rebriefings or to framers’ intent or original understanding. Rather, political and judicial ethics, social psychology—what the equal protection of the laws means, and must mean in our time, whatever it may have meant to whomsoever in 1866–1868—these were the grounds and the essence of Chief Justice Warren’s opinion.” “What it must mean in our time” is one way of saying that the Justices may revise the Constitution. Sumner did not rely on equal protection because he knew that many of the draftsmen would affirm “that they had never intended to outlaw segregation.” Supra note 40.

[63.]Kluger 601.

[64.]Id. 685. But compare Hamilton, infra Chapter 17 at note 15. Frankfurter’s pronouncement that the clearly expressed intention of the framers cannot be regarded as “a fixed formula,” cannot be “congealed,” is incompatible with his insistence that “very specific provisions” such as the prohibition of “bills of attainder” must be read as “defined by history.” Infra Chapter 21 at note 46. Why should an historical definition deserve more respect than the framers’ own explanation of their intention? Courts, Frankfurter had stated, “are not designed to be a good reflex of a democratic society.” Dennis v. United States, 341 U.S. 494, 525 (1951), concurring opinion.

[65.]In “recalling that it is a Constitution ‘intended to endure for ages to come,’ ” Justice Black stated, “we also remember that the Founders wisely provided the means for that endurance: changes in the Constitution, when thought necessary, are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court.” Bell v. Maryland, 378 U.S. 226, 342 (1964). See infra Chapter 17 at notes 15–22.

[66.]For 1866 see supra Chapter 1 at notes 36–46; for the present day, see infra Chapter 17 at note 55, and note 55.

[67.]Kluger 688.

[68.]Id. 710, emphasis added.

[69.]Adkins v. Children’s Hospital, 261 U.S. 525, 570 (1923), dissenting opinion.