Christopher W. Schmidt, Chicago-Kent College of Law and the American Bar Foundation, has posted Brown, History, and the Fourteenth Amendment, which appears in the Notre Dame Law Review:
Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and legal scholars have approached the constitutional history of Reconstruction. I highlight in particular the efforts of the lawyers for the NAACP, who advocated a reading of the Equal Protection Clause that most scholars at the time believed conflicted with the Fourteenth Amendment’s original meaning. With the aid of a group of historians sympathetic to their cause, the NAACP lawyers prepared a brief that presented a bold (if often tendentious) revisionist history of the Fourteenth Amendment that advanced an originalist justification for striking down segregation laws. The Supreme Court did not accept the NAACP’s reading of history; in his Brown opinion, Chief Justice Earl Warren concluded the historical record was “inconclusive” on the question of school segregation. Yet the basic assumption about Reconstruction history on which the NAACP legal brief turned—that the aspirations of the most egalitarian voices of the day deserve special weight in assessing the meaning of the Reconstruction amendments—has today become a core tenet of legal and historical scholarship.I’ll add a postscript concerning the legal historian Willard Hurst and the labor historian Herbert Gutman, at the time, a graduate student in the History Department at the University of Wisconsin. Professor Schmidt writes that among William T. Coleman, the first Black American to clerk for a U.S. Supreme Court justice, while a lawyer in private practice, assisted the NAACP’s efforts by using his contacts as a Harvard Law School alumnus to “commission studies of the circumstances surrounding the ratification of the Fourteenth Amendment in the various states” and that two folders of the research material Coleman thus obtained survive in the NAACP Papers in the Library of Congress.
One of Coleman’s contacts was Willard Hurst, as I learned some years ago while researching the legal historian in the Frances and Willard Hurst Papers at the State Historical Society of Wisconsin. (I have never worked in the NAACP files Professor Schmidt cites.) Hurst summarized his research into official sources on Wisconsin’s ratification of the Amendments in the twenty-one-page “Memorandum Regarding the 13th and 14th Amendments, in Wisconsin, and Related Subjects.” As he explained to Coleman, “Mr. Herbert Gutman, a graduate student in our history department”--and subsequently a great American labor historian--took on “local newspaper files.” Hurst’s memorandum and Gutman’s nine-page statement also survives in the Frances and Willard Hurst Papers. Hurst noted the relatively small number of African Americans resident in Wisconsin in the 1860s–only 1,171 in the 1860 census. “It seems plain that there would have been no thought of segregated schools in this situation.” Gutman similarly concluded, “Nowhere was the question of segregation raised or discussed by the opponents” of the 13th and 14th amendments.
Hurst sent the memoranda to Coleman with a letter of transmittal dated July 28, 1953. “Realistically, I suppose about everything which I send you is at best only tangential to the key issue in the pending cases,” Hurst explained. “All of this Wisconsin material convincingly adds up to a clearly preponderant contemporary opinion in support of equality of treatment before the law. But this, in itself, is logically compatible with segregation; and nothing in the Wisconsin materials seems to me to bear directly on the separate-but-equal position.”
A section of the NAACP brief that fall argued that “There is convincing evidence that the State Legislature and conventions which ratified the Fourteenth Amendment contemplated and understood that it prohibited State legislation which would require racial segregation in public schools,” although it acknowledged that the evidence was of “somewhat less uniform character” for Northern than Southern states. The two pages devoted to Wisconsin (176-177) echoed a point Hurst’s memorandum: “during the crucial years [Wisconsin’s] Negro population was insignificant–less than two tenths of one-percent. Thus it seems obvious why segregation in schools or elsewhere never merited the attention of the legislature at the time of its ratification of the Amendment or thereafter.” The brief continued with quotations of the governor, who seemed to think the Fourteenth Amendment would apply only to the South, and to the minority member a legislative committee that recommended adoption because it would “give to the federal government the supervision of all the social and domestic relations of the citizen of the state and to subordinate state governments to federal power.”
I’m afraid my notes do not verify that the Wisconsin governor’s and committeeman’s statements appear in Hurst’s memorandum. If they do appear there and it in fact was the source for the passage in the NAACP brief, Hurst may be said to have contributed to the “bold (if often tendentious) revisionist history of the Fourteenth Amendment” Professor Schmidt describes, even though Hurst himself concluded that the Wisconsin history was as inconclusive as Alexander Bickel, Felix Frankfurter, and Earl Warren found the congressional history to be.
--Dan Ernst
