The Southern Case for School SegregationKilpatrick, James Jackson
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The Southern Case for School Segregation
Kilpatrick, James Jackson
African Americans -- Segregation; Segregation -- Southern States
One who belongs to the most vilified and persecuted minority in
history is not likely to be insensible to the freedoms guaranteed
by our Constitution. Were my purely personal attitude relevant,
I should wholeheartedly associate myself with the general
libertarian views in the court’s opinion, representing as they
do the thought and action of a lifetime. But as judges we are
neither Jew nor Gentile, neither Catholic nor agnostic. We owe
equal attachment to the Constitution and are equally bound by our
judicial obligations whether we derive our citizenship from the
earliest or the latest immigrants to these shores. As a member of
this court I am not justified in writing my private notions of
policy into the Constitution, no matter how deeply I may cherish
them or how mischievous I may deem their disregard.... It can never
be emphasized too much that one’s own opinion about the wisdom or
evil of a law should be excluded altogether when one is doing one’s
duty on the bench. The only opinion of our own even looking in that
direction that is material is our opinion whether legislators could
in reason have enacted such a law.
Much as he detested the West Virginia statute, Frankfurter found it
impossible to deny that reasonable legislators could have passed the
flag-salute law. He was guided to this conclusion by “the light of
all the circumstances” and by “the history of this question in this
court.” Thirteen Justices of the Supreme Court in other years had
found such laws within the constitutional authority of the States. In
view of this “impressive judicial sanction,” how could the power be
now prohibited to the States? In the past, said Frankfurter:
this court has from time to time set its views of policy against
that embodied in legislation by finding laws in conflict
with what was called “the spirit of the Constitution.” Such
undefined destructive power was not conferred on this court by
the Constitution. Before a duly enacted law can be judicially
nullified, it must be forbidden by some explicit restriction upon
political authority in the Constitution. Equally inadmissible is
the claim to strike down legislation because to us as individuals
it seems opposed to the “plan and purpose” of the Constitution.
That is too tempting a basis for finding in one’s personal views
the purposes of the Founders.
The uncontrollable power wielded by this court brings it very
close to the most sensitive areas of public affairs. As appeal
from legislation to adjudication becomes more frequent, and its
consequences more far-reaching, judicial self-restraint becomes
more and not less important, lest we unwarrantably enter social and
political domains wholly outside our concern.
Public-domain text, read in full here on John Shaqi.
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