The Original Understanding and the Segregation Decision, 69 Harvard Law Review 1 (1955)
Before setting out on the direct and noble march to the Court's conclusion in the Segregation Cases, Chief Justice Warren took care to post a rear guard. The history of the adoption of the fourteenth amendment, to which reargument in these cases had been largely addressed, though casting some light, was, the Chief Justice said, "inconclusive" at best. "The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty." Three pages later, as befits a commander in mid-advance, the Chief Justice, having made his dispositions, had no further thought for the rear: "In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws."
Date of Authorship for this Version
Bickel, Alexander M., "The Original Understanding and the Segregation Decision" (1955). Faculty Scholarship Series. 3972.