The US Congress votes to desegregate US schools nationwide in 1874

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WolfBear

Well-known member
This is something that almost happened in real life. According to Michael McConnell's research, the US Congress voted with almost two-thirds majorities in both houses to desegregate US schools nationwide in the summer of 1874 as a part of the Civil Rights Act of 1875, but ultimately failed to get the necessary two-thirds majority, which was required back then to overcome the filibuster, including in the US House of Representatives, which still had its own filibuster back then:


Thus, school desegregation ended up NOT being a part of the final version of the Civil Rights Act of 1875. However, what if the Republicans in the US Congress in the summer of 1874 would have gotten the necessary two-thirds Congressional support for school desegregation in both houses of the US Congress, thus allowing school desegregation to end up in the final version of the 1875 Civil Rights Act?

How would things have subsequently unfolded in this TL? Could this be enough to give Tilden the win in 1876, for instance? I mean outrage over school desegregation. Also, I would presume that school desegregation would be challenged in court, and what would help these challenges would be the fact that school desegregation was mentioned nowhere in the debates over either the 1866 Civil Rights Act or the 14th Amendment (which was said by some/many of its supporters to have a largely similar scope to the 1866 Civil Rights Act). It also didn't help that in 1883, the US Supreme Court unanimously upheld the constitutionality of anti-miscegenation laws in the Pace v. Alabama case.

So, Yeah, anyway, does school desegregation eventually get struck down by the US Supreme Court in this TL? And what happens both beforehand and afterwards?

@History Learner @Skallagrim @stevep Thoughts on this?
 
For what it's worth, if you are curious, in the late 19th century, when courts outside of the Southern US have had to rule on the compatibility of school segregation with the federal US Constitution, they generally ruled that it was compatible with it:

Original Intent--As Perceived by Michael McConnell 91 Northwestern University Law Review 1996-1997

Copyright 1996 by Northwestern University, School of Law Printed in U.S.A.Northwestern University Law Review Vol. 91, No. 1THE ORIGINAL INTENT-AS PERCEIVEDBY MICHAEL MCCONNELLRaoul Berger*[W]e must correct the judgment of posterity by that of the...
heinonline.org

This was certainly the case in late 19th century Ohio, Nevada, California, Indiana, and New York.

Of course, when the question of whether school segregation was compatible with state constitutions outside of the Southern US had to be decided by courts in the 19th century, they generally or at least often ruled that it was incompatible with this. However, the US Supreme Court will have to address this question on a federal level, not on a state level, and egalitarian sentiments were probably not as well-entrenched outside of the Southern US in the 1880s as they were in the 1950s.
 
This would have been challenged in the courts on 10th amendment grounds and should have lost. The federal legislature has used strings attached to federal education funding as a workaround, but can not dictate how the states deal with education.
 
Atarlost said:
This would have been challenged in the courts on 10th amendment grounds and should have lost. The federal legislature has used strings attached to federal education funding as a workaround, but can not dictate how the states deal with education.
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They claimed that the 14th Amendment gave them this power, and while a version of this argument was later adopted by SCOTUS in Brown v. Board of Education in 1954, Yes, it's very far from clear that this argument would have already been embraced back in the 1880s.
 
WolfBear said:
They claimed that the 14th Amendment gave them this power, and while a version of this argument was later adopted by SCOTUS in Brown v. Board of Education in 1954, Yes, it's very far from clear that this argument would have already been embraced back in the 1880s.
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They don't get to decide that. The Supreme Court does. And if the Supreme Court decides that it does (as they did in Brown vs the Board of Education OTL) they make in the same ruling legislation redundant.
 
Atarlost said:
They don't get to decide that. The Supreme Court does. And if the Supreme Court decides that it does (as they did in Brown vs the Board of Education OTL) they make in the same ruling legislation redundant.
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Sure, but will the 1880s US Supreme Court, the one that unanimously upheld anti-miscegenation laws in Pace v. Alabama in 1883, actually agree to declare school segregation unconstitutional nationwide throughout the entire US?
 
WolfBear said:
Sure, but will the 1880s US Supreme Court, the one that unanimously upheld anti-miscegenation laws in Pace v. Alabama in 1883, actually agree to declare school segregation unconstitutional nationwide throughout the entire US?
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No, but they'll rule that they're the only ones who can.
 
Ricardolindo said:
Good question. I don't know.
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Given that they unanimously embraced the symmetry logic in Pace v. Alabama the same year, I suspect that they would say that such a statute would exceed Congress's authority. Though it's possible that Harland would dissent if he views education as a civil right--in contrast to sex/marriage, which he might have viewed as a social right and thus in his opinion outside of the scope of the 14th Amendment.
 
WolfBear said:
Given that they unanimously embraced the symmetry logic in Pace v. Alabama the same year, I suspect that they would say that such a statute would exceed Congress's authority. Though it's possible that Harland would dissent if he views education as a civil right--in contrast to sex/marriage, which he might have viewed as a social right and thus in his opinion outside of the scope of the 14th Amendment.
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Pace v. Alabama was about whether state anti-miscigenation laws were unconstitutional. It had nothing to do with Congressional power.
 
Ricardolindo said:
Pace v. Alabama was about whether state anti-miscigenation laws were unconstitutional. It had nothing to do with Congressional power.
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But one could argue that if something was allowed by the 14th Amendment, then Congress had no power to prohibit it, no?
 
Here's a short response article that Michael McConnell wrote to Michael Klarman after the latter commented on his research:

Reply: The Originalist Justification for Brown: A Reply to Professor Klarman on JSTOR

Michael W. McConnell, Reply: The Originalist Justification for Brown: A Reply to Professor Klarman, Virginia Law Review, Vol. 81, No. 7 (Oct., 1995), pp. 1937-1955
www.jstor.org www.jstor.org

You could, of course, find the entire article for free on LibGen, most likely. I mean both Klarman's article and McConnell's response to this article.
 
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