Counsel for the Negro plaintiffs, grappling with Question 1, attempted to show that the Fourteenth Amendment was intended by its framers and adopters to have a “broad, general scope.” John W. Davis and T. Justin Moore, carrying the brunt of argument for the South, relied upon the more tangible history of what actually happened in terms of racially separate schools. Davis placed particular emphasis upon the action of the Southern States in creating separate school systems, without objection from Congress, even as they ratified the amendment. Sumner and his fellow radicals might not have wanted to challenge such Northern allies as Pennsylvania and Ohio, but “if there were any place where sponsors of the amendment would have blown the bugle for mixed schools, surely it would have been in those eight States of Reconstruction legislation.” Frankfurter kept asking the various attorneys to explain why the Congress itself never had adopted legislation to prohibit the States from maintaining racially separate schools. Defense counsel said the Congress had no power to do so; attorneys for the Negro plaintiffs said Congress had the power, but opponents of segregation never had had the votes. Frankfurter put an embarrassing question to J. Lee Rankin, who as Assistant Attorney General had joined forces with the NAACP. “Realistically,” Frankfurter suggested, “the reason this case is here is that action couldn’t be attained from Congress. Certainly it would be much stronger from your point of view if Congress had acted, wouldn’t it?” Rankin agreed, but insisted that the court could achieve the desired end by judicial pronouncement as well as the Congress could achieve it by legislative action. Frankfurter persisted, taking judicial notice of eighty-five years of segregation in Washington: “Is it to be said fairly that not only did Congress not exercise the power under Section 5 with reference to the States but, in a realm in which it has exclusive authority, it enacted legislation to the contrary? Are you saying that legislation does not mean anything but what it does? It just segregates, that’s all.” “Well, not exactly,” Rankin replied. “You have to find a conscious determination by Congress that segregation was permitted under the Fourteenth Amendment.” “You think legislation by Congress is like the British Empire--something that is acquired in a fit of absent-mindedness?” “I wouldn’t make that charge before this court,” said Rankin stiffly, “and I don’t want to be quoted in that manner.”