The Final Showdown: Marshall and Davis

We are requested to direct our attention to the specific question as to whether or not the Court—this Court—has judicial power in construing the Fourteenth Amendment to abolish segregation in the public schools. And our answer to that question is a flat "yes."

Maybe the question was more nearly, instead of power—in the strong sense—I only speak for myself, not for others—it is the question of the propriety of exercising judicial power to reach this result, if the result would be reached, in the absence of any legislation.

Your argument comes down to this: If in one of the states in which there is a large percentage of Negro voters, a preponderance, where we get a situation where x state has a preponderance of Negro voters who are actually going to the polls, and actually assert their preponderance and install a Negro governor, to the extent that more money is spent for Negro education, better housing, better schools, more highly paid teachers, where teachers are more attracted, better maps, better school-books, better everything than the white children enjoy—and I know I am making a fantastic, if you will, assumption—

Yes.

—and yet there is segregation, you would come here and say that they cannot do that?

If it is done by the state, the state has been deprived of—

That is your position; that is the legal position that you're taking-

I think, sir, that is our flat legal position.

There is not absolute equality, but substantially equal, in accordance with the terms of our cases.

Yes, sir; starting with Plessy the word "substantial," and we say in our brief—I mean we are absolutely serious about it—that the use of the word "substantial" emphasizes that those cases in truth and in fact amend the Fourteenth Amendment by saying that equal protection can be obtained in a substantially equal fashion, and there is nothing in the debates.

There is nothing in the debates that will hint in the slightest that they did not mean complete equality—they said so—to raise the Negro up into the status of complete equality with the other people. That is the language they used. "Substantial" is a word that was put into the Fourteenth Amendment by Plessy v. Ferguson, and I cannot find it, and it cannot be found in any place in the debates.

May it please the Court:

I suppose there are few invitations less welcome in an advocate's life than to be asked to reargue a case on which he has once spent himself, and that is particularly unwelcome when an order for reargument gives him no indication whatever of the subjects in which the Court may be interested, and, therefore, I want to at the outset tender the Court my thanks and, I think, the thanks of my colleagues on both sides of the desk, for the guidance they have given us.

Now, Your Honors then are presented with this: We say there is no warrant for the assertion that the Fourteenth Amendment dealt with the school question. The appellants say that from the debates in Congress, it is perfectly evident that the Congress wanted to deal with the school question; and the Attorney General, as a friend of the Court, says he does not know which is correct. So Your Honors are afforded the reasonable field for selection.

What did the Freedmen's Bureau do? It was the pet and child of Congress and, acting under its constant supervision, they installed separate schools throughout the South, so separate indeed that history records one complaint by the City of Charleston that they had seized, occupied, and taken over all the school buildings in the city, filled them with their Negro wards, and the white children no longer had any buildings to which to resort.

Somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. .... We relied on the fact that this Court had, not once but seven times I think it is, pronounced in favor of the "separate but equal" doctrine. We relied on the fact that the courts of last appeal of some sixteen or eighteen states have passed upon the validity of the "separate but equal" doctrine vis-a-vis the Fourteenth Amendment. We relied on the fact that Congress has continuously since 1862 segregated its schools in the District of Columbia.

If they were to be reassorted or commingled, who knows how that could best be done? If it is done on the mathematical basis, with thirty children as a maximum, which I believe, is the accepted standard in pedagogy, you would have 27 Negro children and three whites in one school room. Would that make the children any happier? Would they learn any more quickly? Would their lives be more serene?

Your Honors do not sit, and cannot sit, as a glorified Board of Education for the State of South Carolina or any other state. Neither can the district court.

Let me say this for the State of South Carolina. It does not come here ... in sackcloth and ashes. It believes that its legislation is not offensive to the Constitution of the United States. It is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools...

I am reminded—and I hope it won't be treated as a reflection on anybody—of Aesop's fable of the dog and the meat: The dog, with a fine piece of meat in his mouth, crossed a bridge and saw the shadow in the stream and plunged for it and lost both substance and shadow. Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige?

It is not my part to offer advice to the appellants and their supporters or sympathizers, and certainly not to the learned counsel. No doubt they think what they propose is best, and I do not challenge their sincerity in any particular period, but I entreat them to remember the age-old motto that the best is often the enemy of the good.

Their only justification for this being a reasonable classification is, one, that they got together and decided that it is best for the races to be separated, and, two, that it has existed for over a century. Neither argument, to my mind, is any good.

I understand them to say that it is just a little feeling on the part of Negroes: They don't like segregation. As Mr. Davis said yesterday, the only thing the Negroes are trying to get is prestige. Exactly correct. Ever since the Emancipation Proclamation, the Negro has been trying to get what was recognized in Strauder v. West Virginia, which is the same status as anybody else regardless of race.

I got the feeling yesterday that when you put a white child in a school with a whole lot of colored children, the child would fall apart or something. Everybody knows that is not true. Those same kids in Virginia and South Carolina—and I have seen them do it—they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school. There is some magic to it. You can have them voting together, you can have them not restricted because of law in the houses they live in. You can have them going to the same state university and the same college; but if they go to elementary and high school the world will fall apart.

The only way that this Court can decide this case in opposition to our position is that there must be some reason which gives the state the right to make a classification that they can make in regard to nothing else in regard to Negroes; and we submit the only way to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings. Nobody will stand in the Court and urge that, and in order to arrive at the decision that they want us to arrive at, there would have to be some recognition of a reason why, of all of the multitudinous groups of people in this country, you have to single out Negroes and give them this separate treatment.

It can't be because of slavery in the past, because there are very few groups in this country that haven't had slavery some place back in the history of their groups. It can't be color because there are Negroes as white as the drifted snow, with blue eyes, and they are just as segregated as the colored man. The only thing that can be is an inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible; and now is the time, we submit, that this Court should make it clear that is not what our Constitution stands for.