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