us which was denied to our predecessors. . . . [It] tends to bring adjudications of this tribunal into the class as a restricted railroad ticket, good for this day and train only.42
The fundamental law of this Union cannot be maintained on any basis so "flexible" or "dynamic" as this. What the South says, in the matter of school segregation, is that the Court settled the question nearly sixty years ago. The Southern States thereafter had every right of law, and every guarantee of honor and fair dealing, to believe that they were proceeding constitutionally in erecting and maintaining a system of racially separate schools. Had there not been such assurance--had there ever been a question of their reserved powers--this system would not have been established. The schools would not have been built, or would have been differently built.
It was Trumbull of Illinois, certainly no Southern sympathizer, who declared in 1872 that "the right to go to school is not a civil right and never was."43 The "right" of United States citizens, preserved from State abridgment by the Fourteenth Amendment, is a right to substantially equal schools, not to the same or identical schools. And it is the earnest contention of the South today that however imperfect its efforts may have been in a poverty- stricken past to provide equal facilities for the children of both races, it approaches that constitutional objective now. The sole function of the courts, in the eyes of a South pleading for stability in our basic law, is to see to it that the intention of the law is fulfilled while the powers of the States over essentially domestic affairs are left unimpaired.
Some Notes on Police Power
NOW, THE greatest of the State powers over essentially domestic affairs is the State's "police power." It is the power the people