Segregation and the Original Understanding: A Reply to Professor Maltz

By McConnell, Michael W. | Constitutional Commentary, Winter 1996 | Go to article overview

Segregation and the Original Understanding: A Reply to Professor Maltz


McConnell, Michael W., Constitutional Commentary


In Originalism and the Desegregation Decisions,(1) I relied heavily on the prior work of Professors Earl Maltz and John Harrison, two of the most careful, dispassionate, and learned scholars of the constitutional doctrine of the Fourteenth Amendment. Now they have written responses to that article. Interestingly, Maltz devotes his essay to questioning whether public education was considered a privilege or immunity of citizenship--a point on which Harrison, without elaboration, says I am "correct"(2)--while Harrison devotes his essay to a textual and doctrinal analysis of how segregation could be considered unequal, a point that Maltz passes by in silence. I will devote my response to Maltz, since he, unlike Harrison, ultimately rejects my thesis that the original understanding of the Fourteenth Amendment supports the holding in Brown.

Maltz contends that the Fourteenth Amendment compels the states to fund black and white schools equally and may empower Congress to prohibit segregation, but does not forbid segregation of its own force. Is Maltz's analysis of the evidence consistent with this interpretation of the Amendment?

Let us begin with the enforcement power. Maltz hypothesizes that some members of Congress may have voted for the schools provision in the civil rights bill, even though they did not believe that de jure school segregation violates Section One of the Amendment, because they understood the congressional power to enforce the Amendment under Section Five to go beyond the dictates of Section One. Maltz argues that this would make sense of Senator Sherman's confused speech in which he appeared to concede the constitutionality of segregated schools, while voting for a bill outlawing school segregation and against amendments that would have allowed separate but equal schools.(3)

The difficulty with this hypothesis is that neither Sherman nor any other supporter of the bill referred to any supposed difference between the substantive requirements of Section One and the discretionary power of Congress under Section Five when defending the constitutionality of the bill. Maltz cites speeches by Robert Hale(4) and William Lawrence(5) giving broad interpretations of the Section Five power. But Hale, who proudly identified himself as the sole Republican representative to have voted against the Fourteenth Amendment, offered his interpretation of Section Five as a criticism of the Amendment,(6) not as a justification for supporting the school segregation bill (which, indeed, he voted against(7)). Nor is Lawrence (who, unlike Hale, was a leading supporter of the bill) an example. It is true that Lawrence offered a fairly expansive interpretation of Section Five, but he also explained in some detail why the school desegregation bill was required by Section One. He concluded: "The fourteenth amendment was designed to secure this equality of rights; and we have no discretion to say that we will not enforce its provisions. There is no question of discretion involved except as to the means we may employ. The real question is, whether, knowing our duty, we will perform it."(8) Many other Republican supporters of the bill similarly argued that the bill merely provided enforcement for rights under Section One, and that Congress had no power to go beyond this.(9) Even Professor Michael Klarman, a critic of the originalist argument for desegregation, finds the evidence "persuasive" that "congressional support for school desegregation should be understood not merely as a policy preference, but also as probative of constitutional interpretation--that is, most congressmen at the time would have understood the congressional enforcement power under Section Five of the Fourteenth Amendment as limited in scope to the rights protected against state interference by Section One."(10)

Thus, while it is logically possible that the bill could have been justified on the theory that Congress had power to go beyond the requirements of Section One, there is no direct evidence in support of this interpretation, and a great deal of evidence to the contrary.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Segregation and the Original Understanding: A Reply to Professor Maltz
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.