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7

Segregated Schools

THE “desegregation” decision in Brown v. Board of Education ¹ 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:

In calling for the deletion, Bingham, the former abolition theorist, had openly acknowledged that the bill as drafted would have prohibited statutes such as school segregation. Since that broad language was in fact deleted from the final form of the bill and since many of the proponents of the Fourteenth held that the amendment had no purpose beyond constitutionalizing the Civil Rights Act, it had therefore seemed to Kelly, [Thurgood] Marshall, Ming, and others in the NAACP camp that they could not reasonably argue that the framers intended the amendment to prohibit school segregation.¹⁸

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:

Some members of the House thought, in the general words of the first section in relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section.

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. Corning ²⁹ 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:

As a freeman, he is entitled to acquire and dispose of real and other property . . . to have his life, liberty, and person protected by the same laws that protect me . . . so shall he not only have the right to enforce his contract, but to that end shall be received as a witness in a court of justice on the same terms . . . It would be an outrage . . . [if] we were to refuse to throw around them such legal guards as will prove their only protection and secure to them the enforcement of their rights.

I will go even further . . . and will vote for all measures to elevate their condition and to educate them separate and apart from the whites . . . [B]ut when it comes to placing him upon the same social and political level as my own race, I must refuse to do it.³³

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:

There were many reasons why men’s understanding of equal protection, as applied to educational matters, was imperfect in 1866 . . . Negroes were barred from public schools of the North and still widely regarded as “racially inferior” and “incapable of education.” Even comparatively enlightened leaders then accepted segregation in the schools.⁴¹

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:

the equality of laws enshrined in a constitution which was “made for an undefined and expanding future . . .” . . . is not a fixed formula defined with finality at a particular time. It does not reflect, as a congealed summary, the social arrangements and beliefs of a particular epoch . . . The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.⁶⁴

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

My demonstration in 1977 that the framers excluded segregated schools from the scope of the Fourteenth Amendment prompted Paul Brest to brand me as a “racist” who “persistently distorted [the historical data] to support his thesis.” ¹ Aviam Soifer followed suit, emphasizing “how badly Berger misuses historical materials”;² and William Wiecek charged me with “rap[ing] rather than respect[ing] Clio.” ³ Unmistakably, however, the North was firmly opposed to unsegregated schools.⁴ Many commentators, among them leading activists, now agree that the Fourteenth Amendment left segregation untouched.⁵ For example, Michael Perry noted that “Berger made it painfully clear that the framers of the Fourteenth Amendment did not mean to prohibit segregated public schooling, (or segregation generally) . . . [a] tragic morally indefensible consensus.” ⁶ Let me add some evidence.

When the District of Columbia schools were under discussion in 1860, Senator James Harlan of Iowa protested,

I know there is an objection to the association of colored children with white children in the same schools. This prejudice exists in my own State. It would be impossible to carry a proposition in Iowa to educate the few colored children that now live in the State in the same school houses with white children. It would be impossible, I think, in any one of the States in the Northwest.⁷

That prejudice persisted during the Civil War. Congress had “permitted segregated schools in the District of Columbia”;⁸ and Senator Charles Sumner vainly sought “to abolish segregated schools in the District.” ⁹ How can it be assumed that the self-same Congress would require the States to adopt the very desegregated schools which it refused to allow in the District?¹⁰ Such an assumption is precluded by James Wilson’s assurance that the Civil Rights Bill did not require that all “children should attend the same schools.” ¹¹

The persistent acceptance of segregated schools in the North is further evidenced by the history of the Civil Rights Act of 1875. Although the Act prohibited discrimination with respect to inns, public conveyances, and theaters, Congress, despite Sumner’s unflagging efforts, rejected a ban against segregated schools.¹² Senator Aaron Sargent of California urged that the common school proposal would reinforce “what may be perhaps an unreasonable prejudice, but a prejudice nevertheless—a prejudice powerful, permeating every part of the country, and existing more or less in every man’s mind.” ¹³ In the House, William Phelps of New Jersey stated, “You are trying to legislate against human prejudice, and you cannot do it. No enactment will root out prejudice, no bayonet will prick it. You can only educate away prejudice.” ¹⁴

Nor should we congratulate ourselves on greatly improved race relations. Arthur Schlesinger, Jr., considers that racism remains “the still crippling disease of American life.¹⁵ A liberal columnist, Tom Wicker, wrote that “the attitudes between the races, the fear and the animosity that exist today, are greater than, let us say, at the time of the Brown case, the famous school desegregation decision in 1954.” ¹⁶ Roger Wilkins, a black commentator, noted that “the attitude of whites towards blacks is basic in this country, and that attitude has changed for the worse.” ¹⁷ Such citations can be multiplied. They caution academe against reading back its sentiments into the minds of the 1866 framers. As Peter Gay observed, one who approaches “empirical data . . . by way of a preconceived theoretical bias” is “a poor historian.” ¹⁸

That observation and the foregoing history counsel us to reevaluate Plessy v. Ferguson.¹⁹ Plessy has become a symbol of evil, but that is because we impose “upon the past a creature of our own imagining” instead of looking to “contemporaries of the events we are studying.²⁰ “Separate but equal” was rooted in a harsh reality, noted by Alexander Bickel: “It was preposterous to worry about unsegregated schools . . . when hardly a beginning had been made at educating Negroes at all and when obviously special efforts, suitable only for the Negroes, would have to be made.” ²¹ Plessy merely reiterated what an array of courts had been holding for fifty years.

Most post–Civil War decisions cited Roberts v. City of Boston,²² decided in 1849 by the Massachusetts Court per Chief Justice Lemuel Shaw. The school committee had ruled that the common good would be best promoted by maintaining separate primary schools for colored and for white children; the court held that the separation rule was “founded on just grounds of reason and experience.” ²³ In 1850 the Ohio Supreme Court declared, “As a matter of policy it is unquestionably better that white and colored youth should be placed in separate schools.²⁴ When the Fourteenth Amendment was invoked in 1871, the Ohio court declared that “Equality of rights does not involve the necessity of educating white and colored persons in the same school.” ²⁵ The Nevada court held in 1872 that separate schools do not offend the Fourteenth Amendment,²⁶ as did the California court in 1874.²⁷ In 1874 the Indiana court held that the Constitution does not empower Congress “to exercise a general or special supervision over the states on the subject of education.” ²⁸

These earlier cases were cited by Judge William Woods, soon to be elevated to the Supreme Court, in an 1887 Federal circuit court case which held that separate schools for blacks did not constitute a denial of “equal protection.” ²⁹ Passing on a New York statute of 1864, the New York court noted in 1883 that separate schools obtain generally in the states of the Union, and do not offend equal protection.³⁰ Thus Plessy was faithful to the framers’ design and rested on a long train of cases. We need to recall Huxley’s admonition that scientists “respect nothing but evidence” and believe that “their highest duty lies in submitting to it, however it may jar against their inclinations.” ³¹ Are we to demand less of judges?

BROWN V. BOARD OF EDUCATION

We should not leave the issue of segregation without taking note of Robert Bork’s view that the “result in Brown is . . . compelled by the original understanding of the fourteenth amendment’s equal protection clause.” ³² That is a remarkable conclusion. He himself recounts that “no one then imagined that the equal protection clause might affect school segregation.” ³³ Further, he observes that an “inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in every aspect of life.” ³⁴ And he acknowledges “That the ratifiers probably assumed that segregation was consistent with equality, but they were not addressing segregation.” ³⁵ “The text itself,” he argues, “demonstrates that equality under law was the primary goal, for it alone was written into the text.” ³⁶ Thus his conclusion that “equal protection” overturned an established State institution—segregation—in the North as well as the South rests entirely on the fact that “equal protection” alone “was written into the text.” ³⁷ There was no need, however, to write segregation into the text because confessedly “no one then imagined that the equal protection clause might affect school segregation.” Why provide against the unimagined?

To overturn the established State control of segregation, the silence of the framers is not enough; minimally there must be an express intent to do so. Pierson v. Ray makes the point.³⁸ It arose under §1983, which provided that “every person who deprives another of his civil rights” shall be liable. At issue was whether a judge was a “person” within the meaning of the Act. To abolish the common law immunity of judges from suits for acts performed in their official capacity, the Court required a specific provision. Before a State’s control over its own residents is curtailed, an equally exacting standard should be demanded.³⁹

There is positive evidence that there was no design to impose segregation on the States. Segregated schools were deeply entrenched in the North. The climate of opinion is reflected by the objection of Senator James Harlan in 1860, when the District of Columbia schools were under discussion, to the association of colored children with white in the same schools.⁴⁰ Despite Senator Charles Sumner’s unflagging efforts to abolish segregated schools in the District,⁴¹ Congress maintained them. It can hardly be assumed that by the word equal Congress intended to require the States to adopt the very desegregated schools that it refused to institute in the District of Columbia. Indeed, James Wilson, chairman of the House Judiciary Committee, assured the House that the Civil Rights Bill did not require “that in all things . . . all citizens . . . shall be equal,” instancing that it did not require that “their children shall attend the same schools.” ⁴²

Nor was “equal protection” conceived in all-encompassing terms. Ely considers the words “inscrutable.” ⁴³ Bork himself remarks that to view the words “equal protection” as “general” is “to leave the judges without guidance.” ⁴⁴ That is not his aim; he considers the “general” provision to be limited in terms of the primary purpose of the ratifiers—equality.⁴⁵ This is circular reasoning—equal is equal. History discloses a more limited purpose. David Donald, a Reconstruction historian, wrote, “the suggestion that Negroes should be treated as equals to white men woke some of the deepest and ugliest fears in the American mind.” ⁴⁶ George Julian, the Indiana Radical, reflecting widespread opinion, said, “the trouble is we hate the Negro.” ⁴⁷ Although Senator Sumner maintained that suffrage was “the only sufficient guarantee,” ⁴⁸ it was excluded from the Amendment; and the framers repeatedly rejected proposals to ban all discrimination.⁴⁹

The fact is that the framers restricted “equality” to a few specified State-created rights. Let me begin with the Civil Rights Bill of 1866, the history of which is highly germane because the framers, without dissent, regarded the Fourteenth Amendment as “identical” with the Bill.⁵⁰ It was designed to protect the Bill from repeal by embodying it in the Amendment. Justice Bradley, a contemporary, declared that “the first section of the Bill covers the same ground as the Fourteenth Amendment.” ⁵¹ Senator William Stewart explained that the Bill was designed “simply to remove the disabilities” imposed by the Black Codes, “tending to reduce the negro to a system of peonage . . . It strikes at that, nothing else.” ⁵² To enable the freedmen to exist, the Bill banned discrimination with respect to the right to own property, to contract, and to have access to the courts,⁵³ rights that the Supreme Court, after canvassing the legislative history, described in 1966 as “a limited category of rights.” ⁵⁴ Samuel Shellabarger explained that the Bill secures “ equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” ⁵⁵ Leonard Myers stated that the Amendment was needed “to provide equal protection to life, liberty and property, to sue and be sued, to inherit, to make contracts.” ⁵⁶ Thus was “equal protection” wedded to the “limited category of rights” enumerated in the Civil Rights Bill.

Because Bork overlooked the framers’ limited conception of “equality,” he concluded that “equality and segregation were mutually inconsistent,” leaving the courts free to choose between them.⁵⁷ The framers, however, as Bork notes, “assumed that equality and state-compelled separation of the races were consistent,” ⁵⁸ a perfectly rational assumption given their limited conception of “equal protection.”

Judge Posner and Lino Graglia agree that Bork’s version of originalism is quite flexible, and Graglia notes that Bork defines originalism “in a way that leaves judges with overly broad discretion.” ⁵⁹ For my part, the framers’ incontrovertible exclusion of suffrage from the Fourteenth Amendment, for example, leaves no room for judicial “flexibility.” So too, Bork finds “majestic generalities” in the Constitution, which Graglia justifiably describes as “the first step toward an expansive view of judicial power.” ⁶⁰ Neither “due process” nor “privileges or immunities” were “majestic generalities”; each had an historically limited content. And equal protection, the legislative history discloses, was also meant to have limited scope.