The Southern Case for School SegregationKilpatrick, James Jackson
History
The Southern Case for School Segregation
Kilpatrick, James Jackson
African Americans -- Segregation; Segregation -- Southern States
Instead, time ran on until June 8, 1953, when the court, unable to
reach any decision on which a majority of the court could agree,
set the case for reargument on five questions. Two of the questions
were technical in nature: Assuming it were decided that segregation
in itself violates the Fourteenth Amendment, how should decrees be
formulated? How should the cases be handled on remand to the lower
courts? The other three questions went to the very heart of American
constitutional law.
_Question 1: What evidence is there that the Congress which
submitted and the State legislatures and conventions which ratified
the Fourteenth Amendment contemplated or did not contemplate,
understood or did not understand, that it would abolish segregation
in public schools?_
The Supreme Court posed this first question, in theory at least,
for one reason only: Its object was to determine whether the power
to operate racially separate schools ever had been prohibited to
the States _by the Constitution_; for if this power had not been
prohibited to the States by the Constitution, it was theirs to
exercise respectively, for good or ill. (It was conceded that the
power never had been prohibited to them by any law of the United
States adopted pursuant to the Constitution). Obviously, nothing in
the Constitution possibly could prohibit this power to the States
except Section 1 of the Fourteenth Amendment. This section imposes
three prohibitions on the States: (1) No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens
of the United States; (2) nor shall any State deprive any person of
life, liberty, or property without due process of law; (3) nor deny
to any person within its jurisdiction the equal protection of the
laws.
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