The Southern Case for School SegregationKilpatrick, James Jackson
History
The Southern Case for School Segregation
Kilpatrick, James Jackson
African Americans -- Segregation; Segregation -- Southern States
themselves to make such changes as new circumstances may require.
The meaning of the Constitution is fixed when it is adopted, and it
is not different at any subsequent time when a court has occasion
to pass upon it.
Chief Justice Taney made the same point in the _Dred Scott_ case
(19 Howard 393). It had been argued (this was in 1857) that public
attitudes had changed enormously toward the Negro since the adoption
of the Constitution sixty-eight years earlier. But should this shift
in public attitude induce the court “to give to the words of the
Constitution a more liberal construction in their favor than they
were intended to bear when the instrument was framed and adopted”?
Taney thought such an argument “altogether inadmissible” in any
tribunal called upon to interpret the Constitution:
If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended;
but while it remains unaltered, it must be construed now as it was
understood at the time of its adoption. It is not only the same
in words, but the same in meaning, and delegates the same powers
to the government, and reserves and secures the same rights and
privileges to the citizen; and as long as it continues to exist
in its present form, it speaks not only in the same words, but
with the same meaning and intent with which it spoke when it came
from the hands of its framers, and was voted on and adopted by the
people of the United States. Any other rule of construction would
abrogate the judicial character of this court, and make it the mere
reflex of the popular opinion or passion of the day. This court was
not created by the Constitution for such purposes.
Many other authorities, over a span of generations, have said
substantially the same thing about the necessity of courts’ holding
steadfastly to the demonstrable intention of a constitutional
provision. “The ultimate touchstone of constitutionality,”
Frankfurter once asserted, “is the Constitution itself and not
what we have said about it” (306 U. S. 491). Hughes urged his
colleagues not to be swayed by arguments that extraordinary events
may justify abandonment of the rule: “Extraordinary conditions do not
create or enlarge constitutional power” (245 U. S. 495). Douglas,
dissenting in _New York_ v. _the United States_ (326 U. S. 572),
sternly lectured his brothers on their obligations in this regard;
when a constitutional rule is to be fashioned that undermines the
long-understood sovereignty of the States, he said, it ought never
to be done by judicial construction: “Any such change should be
accomplished only by constitutional amendment.”
Public-domain text, read in full here on John Shaqi.
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