Forgive me here, and the people that help me here in this room today. Okay, so, the truth is that orgins of this lecture at the university of texas when i was a law student. It appears in passing, looking at the fleeting invocations of the phan fmanife there is more frequently than it has been read. It is marked as being recast dominant understanding. Closely crosssuit niced opin n closely skroout scrutinized. Precious little has been paid to the opposition brown. That is mistaken in my view because a close examination of what tiply to read segregationists as being enraged unsophisticated bumpkins. Many senators in congress dm demonstrated they would be more legally sophisticated than is appreciated. Here is what i will do in my next little bit of time here. I will focus on the text because it is so misremembered as to what the document says and then im going to step back and try to place it in context. Part of the way that one needs to do that is what parts did not show up. Thinking about a context, its helpful to think about the strategies that segregationists came up with. We think of it today as being rigid and inflectixible and the were crafty and supple even if they were wrong headed. So finally i will step back and examine the legacy of the southern manifesto, and it is tempting to think there is no connection to modern realities. That would in fact be false in a sense that not only does one hear these sorts of arguments in sort of ordinary places but even at the Supreme Court of the united states. My overarching aim sheer to offer no apology. When they started to march toward racial justice, the m manifesto rushed headlong in the other direction. I believe it was an atrocity. I detest the system they sought to defend, but disagreement with underlying views should not prevent us from understanding what arguments they advanced, why they framed those arguments as they did, and how they resonated in the context of their times. It is vital for appreciates one of the most significant legal transformation in all of its complexity, but also for appreciating the continue nitic. We the of segregationists as having temporarily taken leave of their senses, and that the southern manifesto is a screed that sounded like a rebel yell. When describing the manifesto commentators say it was divin by fear, anger, and mental illness. Any emotion that reduces or eliminates rational thought. We hear that the manifesto was that it seethed with anger. That it was ugly words. And they say they were ugly sensationalists. They fight their height in simple justice, a magnificent work that i hold in great admiration. On this score he says the southern manifesto was an ejaculation of bile and an orgiastic declaration of violence. It is hard to square with what is there on the page. A close examination under mines the perception that southern politicians were blinded by rage. The graft drafters oppose legis for nuance and subtlety. They look at how in many ways it should be the mising decent. Here im going to talk about the text of it. It should not be surprising that it is filled with legal arguments. After a the people that devised it were legally trained. One of the main people was senator sam ervin. He was a justice on the North CarolinaSupreme Court. These folks were not quite as legally sophisticated as the arguments they advanceadvanced. Many people cite it with just the first seasons. The unwarranted case in the Supreme Court is bearing the fruit when men substitute naked power for established law. The phrase naked power even the most opener they use the same language about naked power with respect to brown versus board of education. So focusing on that language alone it sort of allows people to misunderstand what was at the core of the limit. They use constitutional interpretation. They spoke about originalism, they spoke about precedent, they spoke about constitutional construction and tradition. These are, today, what constitutional law professors refer to as the modality. These are the basic forms of constitutional interpretation and all of them appear. I asked students to identify the forms of argument. The first in this dominant mode is they say that the decision in brown betrayed the original understanding of the 14th amendment. They say we looked at the debates. There is no reason to believe that schools thought they should be integrated. After all the very congress that discussed the 14th amendment would have racially segregated schools in the district of education. Show can you square brown versus the board of education. They also made a textual claim saying if you search the constitution for the word education you will not find it. This is what i think is the control f theory, you just try to see if it is there, if any, it is not then there is the they said it is true that the term air force does not appear in the constitution either, but the president s authority is not consequently. And also gonlon versus price. And they said that people ordered their affairs. And in reliance on the legitimacy of racial segregation in schools. And brown versus board of education said they came along and pulled the rug out from under them. They spoke about constitutional structure. Principals of federalism. What they refer to as states rights. And they also say this wa was illegitimate, and that is the proper place to lead to racial integration of schools and they spoke about the separation of powers. Then they also spoke about tradition or what Professor Bob refers to as the ethos of the constitution. They say the decision disregards the decisions from the 1920s. They say the child is not the mere creature of the state and they say this decision is at odds with that tradition. The final argument that they made was a consequentialist one. They say if he is implemented it will lead to chaos and confus n confusion. It could lead to the closing of the Public School system. It overwhelmingly spoke to the racial rhetoric of the time. This is an area where they slipped up. They write the following. Brow brown is destroying the relations between the white and negro races from 90 years of effort by good peek of both races. It planted hatred and suspicion. People were getting along so nicely nap is not, of course, how black people saw it. White people legitimately believe that our negros dont want integration. They would say i know black people dont want integration, i asked my cook and she told me no, right . This was supposed to be a cliche at the time. I do suggest that it is not some objectionable racial rhetoric is creeping in, but that so much is kept out. Im going to shift now to thinking about the context including the things that were kept out and commonly argued by segregationists. The mosut illuminating way to view the manifesto is through the courts opinion in brown. The manifesto sought to reinforce it. But the similarities between the two documents go deeper than that including with respect to the processes that lead to their creation. So with respect to brown, i will speak to the similarities, the southern manifesto and brown versus board of education. There is similarities with tone. Similarities or converts thinking about audience. Maybe audience have similar fee n phenomenon, and the unanimity piece of it as well. So when thinking about the tone, he said that he aimed to achieve a tone that was unemotional, nonrhetorical, and nonaccusatory in an effort to avoid alienating white southerners. While it is understood to be aggrieved and angry, that is not how it is at the time. I found comments from senator who is said this is noninflammatory. You may think they were just attempting to be the plight of their senators, but more detached observers including the new republic and the nation says this was not the sort of inflammatory rhetoric that one may have expected. And that certainly did exist. I will talk more about that in a moment. With respect to the audience questio question. And it could be reproduced and it is ordinary folks that could read the courts rational. The drafters shared the same goals. I have a copy that appeared in the New York Times on the day of them manifesto that it appeared, and they sought to please their case directly to a nationwide audience. They wrote the manifesto not order to whip up segregation in the south, but to tamp down in the south. They said this all of the time. They said they wanted people to be aware of the increasing gravity of the situation following brown, and he feared that many people did not appreciate this living this other parts of the country. Congressman howard smith of virginia that introduced the document said were hoping it may have a open sobering affect the rest of the country. They said this will alert people to what is going on, what is on their mind, and the republic had a similar type of statement. It was not only white people that thought this. The head of the brotherhood of sleeping carporters wrote a letter to the naacp secretary require will wilkins says this is going to harm our quest, and Phillip Randolph maintained this to say this is a real concern. And then with a question of unanimity, chief justice warn wrote brown. It was important to him to make sure there was no descending opinions. He went to the last hold out in brown just as stanley reed of kentucky and he says youre all on your own now and you to decide if this is in the best interest of the country. You can see the way the southernman fes toe was written. Only three senators decided not to sign the document, that is senator lye eor Lyndon Johnson , senator albert gore. And it raises an interesting question to think about how the u unanimity of brown, if there had been a decent in brown versus board of education that the decision would have been more aggressive and more effective. The idea that it would have led to resist with greater ferver, it seems to me they resisted it with plenty of voracity. It is also important to think about the way that even divided opinions, you know, are accepted over time. Think about sayle text versus johnson decision. Or the very recent 54 decision involving same sex marriage. It does not mean that it would not have been followed. Okay,ly shift my attention now to think about the defense of white supremacy. You know, as i say the, you know, the opponents of be graduation had a very familiar set of moves to go through the emotions and get people angered. They would say the mongralization saying that what was happening in the classrooms would move to the bedrooms. You could find this in a statement from a judge named tom p. Brady. He says these northern negros are determined to mongralize america. Black people dont have respect for themselves and theyre trying to get on the intermarriage turnpike. You would think this is mississippi, this is a outliar, what is the background of this person, this is judge tom brady educated at the lawrenceville school, a ledding institution of prep schools in the country and also yale university. He is a person of sophistication in a is using this very strong language. People said they would use the more coded language of mixed schools, and this was supposed to create an e vocative image of people of people having what one author referred to as mixed blood. That language does not appear itself, the other techniques at the time were to think about, you know, casting dispersions on black intelligence. They would talk about other sex yule matters like the high rates of venereal disease. They say that black boys are sexually aggressive and it will spell doom for our blond haired little girls. This is not in the manifesto and they ashoed in order to be more effective in kraeching their intended audience. They also, contrary to popular belief, but also with their respect to what they were doing, i think they were calling for outright defiance, but their arguments were different. But it subpoena a very interesting document because it elicited a debate about the authority of judges to determine constitutional means. There are some that claimed that judicial supremacy didnt come into being until after the courses decision. It is a debate about the role in Supreme Court american society. And what is striking is that the same quite strong views about the courts role in society are already very much in widespread circulation. In indeed, they speak in the register of judicial supremacy. As i say, they were crafty. They strategized, and the most recent word from the court is not brown but brown two. They were attempting not so much to defy the law, but to doe fine it. They said they wanted reversal. That was the primary thing they want, they say well try to block people and we also need to work the court of public opinion. They said we must place our case at the bar of public opinion. There was a columnist that wrot the following. One of the main reason Social Security to reform and e s resuscitate the Supreme Court. He said those political justices over there, are going to get the point of what were doing. Right . These are political figures and if we hold their feet to the fire, they will relent. He also said that we should think about a constitutional amendment. This is an incredibly high threshold. That might sound fantastical to you all today, it may sound far fetched, but when they conducted a nationwide role, nay started to defend the constitution to resolve the question on their own terms, right . It was not understood in that way by the American People some five years after it was handed down. They also said we can think about controlling the understands of blown and their efforts. A senator that said im not going to be so presumptuous be but he says if you look at brown two, there is a very care fful treading of brown two. They are trying to define brown two and to tame brown two. They also talk about racial classifications. They spoke about the Virginia State bar association, and he identified with a very recent decision where judge parker wrote a decision in the briggs versus elliott case saying the constitution does not require integration, it merely forbids segregation. This is a claim that it is not incumbent on School Districts to take affirmative steps, it just wipes off from the books the formal racial segregation. So u you will not think of senator thurman in lower courts, but this was weeks after the decision was brought down, but yes, there is a way to get ud around. Senator sam irvin, he made a claim, he used with constitutional law and ought to be reversed for that decision, it is not as drastic as many people think, right . It is deplorable, but not as drastic as people think. He says it doesnt require the immediate sintegration of the schools. Senator irvin says people attend different places of worship and we can have a similar think in relation to our schools. They say whatever is working in new york city and other parts of the north, well get that going down here as well. Whatever theyre doing in harlem we will bring down south. They were frustrated they were being asked to do something that the north had not. They talk about segregating schools by sex while having them racially integrated as well. To do this black girls and white girls at one school and black boys and white boys in one school. This had was because of the fear of black boys with white girls. We see them as jumping up and down screaming never, but really they had several different approaches. Okay, im now going to shift to the legacy of the southern manifes manifesto. Some observers have attempted to address the southern manifesto ongoing significance, and they conclude that the document has no substantial relevance to the modern world. Like the southerners who fought to defend slavery in the 1860s, the battle to preserve racial segregation should be understood as the 20th centurys lost cause. In this vein, they have argued that signs of the demise crushed the forces behind the southern manifesto. They are kroekt to con in their attempt to maintain state sponsored jim crowe schools and it would be foolish. This it should be understood as representing and portending. It would be severely mistaken to believe the manifesto and the drafters views are disconnected from current conditions. It may be more accurate to view their loss on that score in terms impartial rather than total. And there are lots of statistics that observe the state of racial integration and the nations Public Schools. You know, there are a rise in recent years of something called apartheid schools. This is a term that folks have come up with though sdridescrib when they make up 1 or less. They are on the rise. There are 7,000 such schools that makes up more than 7 of the Public Schools in the entire nation. Relatedly there are some School Districts, mind you not, School Districts that contain astonishing low numbers of white pupils. That same figure for los angeles was 9 , and here in my hometown, that figure was 11 . Southern politicians and other contexts started to argue in the alternative. Even though they were warranted, it should not be construed as requiring racial integration. But overtime it assumed a starring role. Far from comprising losers history, the intellectual view had the integration cause. The attitudes can be sprased by examining the evolving attitude of senator sam irvin of south karz South Carolina time line. If you Flash Forward to august, 1963, he made a concerted effort, and he has attorney general Robert Kennedy before him in some hearings for the Senate Commerce committee. He does not say he is attempting to drain the meaning from brown. It is a score on educators who wants racially balanced schools. And he asks the following loaded question. Do you not agree with me that denying a school child the right to to the bus or otherwise the school, in that other community, is a violation of the 14th amendment as determined by the amendment on bround versus board of education. Kennedy is knocked off, you know, his sort of groove he twisted in his chair, and he is trying to be noncommittal. And he poses this slightly worded question again, brown versus board of education prevents bussing. And you know he says i guess you could make an argument on those lines, and in response, senator irvin replies with a grin and says i dont see how you could disagree with me. Senator ir vip is still a senator, he writes his auto biography, and he says exactly three decades after brown versus the board of education, the civil war amendment. And the board of education was correctly decided in the first instance. He says the constitution is color blind as they maintained in his decent. And requires he forbusinessed the consideration of race when youre assigning people to Public Schools. This is a back up effort to tame and drain the meaning of brown. In the 1980s, he is advocating freedom of choice brands. And alas while i accept brown, the modern Supreme Court has betrayed brown. There are decisions dealing with race. So senator irvin identified the green versus County School board, a case out of virginia from the 1960s, and another one, swan versus charlotte meclenberg. Although the Supreme Court lock avoided this misunderstanding of brown, senator irvins vision found voice in the courts decision 12 years ago in parents involved in Community Schools versus Seattle School district number one. This is a case decided in june of 2007. I had the great good fortune to be a law clerk, and i was shutting right over there when the decision was handed down. The issue in controversy is whether or not School Boards could adopt racial integration programs. They say we want this to reflect in these cities. There is rank order preferencing, and the Supreme Court invalidated these plans. There is a very long and completely convincing decenting opinion. It sounds somewhat similar to what irvin said years earlier. In invalidating these plans, chief Justice Roberts wrote before brown, School Children were told where they could and could not go to school based on the color of their skin. These programs tell them where they can or cannot go to school based on the color of their skin. It matters not that in the bad old days people took account of the color of their skin, and the modern plans they were trying to bring people together. That did not matter as a constitutional proposition. He goes on to say the old evil of race finds echos in these plans. He says history will be heard. That line, history will be heard, drew criticism. They said the opinion offered a severely decontextualized version for brown. Viewed tlhrough this prisonisims hits the mark. In an important sense, chief Justice Roberts was correct in contending that it articulated the views of the brown era, but in my opinion, that is to say the southern manifesto, where senator sam irvin was smiling, thank you very much. Thank you very much, that was a wonderful lecture. Thank you for being here, for being our host, support of the justices is very important to us, and we try to support the courts. So we very much appreciate you being here tonight. We have a reception downstairs in the lower great hall following the meeting. You will also find our gift shop that will be open at that time and there are interesting books available including the schoolhouse gate which Justice Kagan referenced in her opening markets. Thank you all for coming tonight. We are adjourned. Youre watching a special edition of American History tv. Tonight at 8 00 eastern, the Virginia Museum of history and the university of okay center for study cohosted a similympos and the cases involving the forced relocation of the cherokee nation. American history tv now and over the weekend on cspan 3. Cspan has round the clock coverage of the coronavirus pandemic. Watch briefings and individuals, and interactive maps. Watch on demand any time, unfiltered, at cspan. Org coronavirus. The Supreme Court found that louisiana could