Brown v. Board of Education and the Fight to Preserve White Educational Authority
Judge Jule W. Felton's essay "An Appeal to Save Our Written Constitutional Form of Government
For many white southerners, Brown v. Board of Education represented a crisis of governance.
Public schooling in the Jim Crow South had long been a central mechanism of white political control. Through local boards of education and the segregation provisions in state constitutions, white citizens maintained exclusive governing power over taxation, teacher employment practices, curriculum decisions, and use of buildings and facilities.
School segregation created an institutional arrangement of white educational authority.
Brown represented a threat to this power.
Defending White Educational Authority Through Constitutional Interpretation
Shorty after the Supreme Court ruled against state-mandated segregation in Brown v. Board of Education in 1954, Jule W. Felton, the Chief Judge of the Court of Appeals of Georgia, wrote an essay titled “An Appeal to Save Our Written Constitutional Form of Government.”
Felton’s essay gives us insight into how southern segregationists used constitutional originalism to perpetuate unjust social arrangements in the Jim Crow South. Writing about the Supreme Court’s role interpreting the United States Constitution, Felton argued that:
The law of the land as to provisions of the Constitution, the meaning of which is uncertain, is in effect the initial decision of the Supreme Court ascertaining and defining the original intent of the framers and adopters because it becomes in each instance in effect a part of the defined words of the Constitution… the Supreme Court has no right to reverse an initial decision ascertaining intent and extracting a constitutional principle.
Judge Felton’s view of constitutional law can be summed up this way: once the Supreme Court makes a constitutional interpretation, we must live with that particular interpretation until the document itself is amended—regardless of what might change in our society, how much we might broaden our understanding of the world, or how much more inclusive our interpretations of justice and rightness become. In other words, unless we go through the burdensome process of amending the actual document, we’re stuck with antiquated thinking—thinking, I might add, that has usually worked to advantage a narrowly defined segment of the population (e.g., the white aristocracy).
By overturning the “separate but equal” clause established by Plessy v. Ferguson in 1896, Felton believed the Supreme Court had overstepped its bounds. The only way, according to Felton, to re-interpret the constitution was through amendment: all other actions would be a violation of law.
Here’s how he put it:
The Constitution is a contract between the several sovereign States and the Federal Government. That contract provides that the States surrender certain attributes of sovereignty to the Federal Government. The rest are reserved to the States. One provision of the contract is that the contract cannot be amended except as provided in the (contract) Constitution. The Federal Government has been violating the contract since 1937. Up to 1954 we acquiesced in the unconstitutional actions. We do not acquiesce in the 1954 decision or in any subsequent ones. By our acquiescence in the decisions prior to 1954 we are not estopped to call a halt now and that is just what we do. We want the contract complied with.
For folks like Judge Felton, the inclusiveness of school integration was a bridge too far. The Brown decision, many white southerners argued, represented illegitimate judicial activism.
Judge Felton framed desegregation as a constitutional crisis—not as an issue of racial equality or as a moral reckoning. According to Judge Felton, the crisis wasn’t segregation. It was federal overreach and the preservation of white educational authority.
Constitutional arguments, like the one advanced by Judge Felton, became one of the tools through which white officials attempted to stall, slow, reinterpret, and resist compliance with Brown.
Once the explicit white supremacists structures of the Jim Crow South came under direct attack by grassroots activists in the 1950s, southern segregationists turned to constitutional originalism to maintain their unjust society. After all, our constitution’s words weren’t as inclusive in the 1790s when the ink dried on the parchment paper as they were aiming to be in the 1950s when the civil rights movement challenged our notion of who should be included in the American community.
If racial segregation was built into longstanding legal structures and court interpretations, then dismantling it, according to Felton’s argument, would require formal constitutional revision. Felton’s “appeal to the written constitution” helped create the legal justifications for massive resistance and established the foundation for a myriad forms of procedural delay.
Constitutional Originalism as Democratic Evasion
Judge Felton’s essay shows how southern segregationists used constitutional originalism to support their efforts to maintain Jim Crow. It allowed them to present themselves as guardians of a constitutional order. School segregation, for many white southerners, wasn’t about racial hierarchy but about the fidelity of the Constitution.
The Court’s decision on Brown threatened the exclusive educational authority and control white southerners had built into Jim Crow society.
Brown did more than deem state-sponsored, legally mandated school segregation unconstitutional. It destabilized a long running system of white racial governance of public education in the South.
The struggle over desegregation was a struggle over who controlled schools and the constitutional structures that govern them. Brown highlighted two tensions that run through the story of American history:
Liberalism: The idea that people’s democratic participation matters; that society should focus on the expansion of civil rights, equality, tolerance, and pluralism.
Illiberalism: The idea that there should be constraints on people’s expressions of their rights; that cultural homogeneity should be promoted; and that only certain groups have claim to the national identity.
Jim Crow was illiberal. Racial segregation was one of the ways the white South expressed their illiberalism and maintained their claim on the region’s identity. To argue for segregationist schooling was to argue for anti-democratic political structures.
The constitutional originalism expressed in Judge Felton’s essay provided southern segregationists the legal language for supporting illiberal social structures. In this sense, constitutional originalism operated as form of democratic evasion.
Why This History Still Matters
Brown v. Board of Education was an interpretative response to the people’s call for inclusiveness and change. And the Warren Court’s decision to strike down Plessy v. Ferguson with Brown in 1954 was an illustration of a different interpretation of constitutional law than the one held by the likes of Judge Felton. Brown was the result of a view that the constitution is a living document that should be argued and reargued as society changes and as we continue to figure out what it means to be American.
Carolina Fredrickson, a senior fellow at the Brennan Center for Justice, refers to this approach to constitutional law as one of participatory action. Writing in the Washington Monthly, she argued:
The delegates in Philadelphia were not its only framers; the Constitution has been shaped by the millions of Americans who have voted for, organized for, and at times literally fought for change.
We, the people, can shape the constitution. But we also need judges and justices who carve out a place for us in their interpretation of constitutional law. As Fredrickson made clear in her article:
Past judges have understood the Constitution’s malleability, and future ones may as well. As Justice Thurgood Marshall once said, “We the People no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.” The “miracle” of what came out of Philedelphia, he continued, “was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making.”
Some of the constitutional changes we’ve forged over the course of our history were through actual amendments such as the Thirteenth—which abolished slavery— and the Nineteenth—which gave women the right to vote. But other changes were enacted through a reinterpretation of how we the people have made sense of the words that make up our constitution—such as was the case in Brown v. Board of Education.
Can separate really be equal? In 1896, the Fuller Court said yes. But in 1954, the Warren Court said no—not because the words on the paper had changed but because we had changed; and, in that particular case, we had changed for the better.
This history reminds us that building democratic society is an always unfinished endeavor. The people’s work matters.
More to come soon.
References
Brown v. Board of Education, 347 U.S. 483 (1954).
Felton, Jule W. “An Appeal to Save Our Written Constitutional Form of Government.” Alabama Lawyer 21, no. 4 (1960): 390-398.
Fredrickson, Caroline. “A Constitution of Our Own Making.” Washington Monthly. August 29, 2021.
Plessy v. Ferguson, 163 U.S. 537 (1896).