Transcripts For CSPAN3 1956 Southern Manifesto 20240713 : co

Thank you, jerry, so much. As you can tell from that introduction, before coming here, i couldnt keep a job. Jerry, thank you for everything you do for the Supreme Court Historical Society and everything that the Supreme Court Historical Society does for the Supreme Court. The Historical Society does extremely important work in reminding people of the importance of our constitution and our judicial system and its history. And were deeply appreciative. This evening marks the second of the societys 2019 leon silverman lecture series, which is devoted this year to dissents and the spupreme court. On my way over here, professor driver and also jerry libin reminded me that ive written a few of those. Tonights speaker is professor justin driver, professor of law at yale law school. He teaches and writes in the area of constitutional law, and hes the author, most recently, of a book called the schoolhouse gate public education, the Supreme Court, and the battle for the american mind. That book got rave reviews. The Washington Post called it masterful, named it one of the 50 best nonfiction books of 2018. Not to be outdone, the New York Times called the book indispensable. It was a finalist for the american bar associations silver gavel award and shortlisted for the Phi Beta Kappa Ralph Waldo Emerson award. Professor driver has a distinguished publication award in the legal lawyer reviews on all manner of subjects relating to education, race, and constitutional law. Among the other prizes excuse me. He has also written extensively for general audiences. You might have seen his pieces in slate, the atlantic, the New York Times, Washington Post, and the new republic. Hes a member of the American Law Institute and of the american constitution societys academic advisory board. Hes also an editor of the Supreme Court review. Professor driver received his ba from brown university, a masters in modern history from maudeland college oxford, where he was a marshall scholar, and his jd from Harvard Law School, where he was editor of the harvard law review. After graduating from harvard, professor driver clerked for judge Merrick Garland, Justice Stephen breyer and justice oconnor, sandra oconnor. And i dont know where this ranks in the list of professor drivers compliments, but professor driver, or as i used to know him, justin, was also a student of mine. And i can tell you from those longago years that he is super smart and super thoughtful, with a very keen eye for fascinating legal and historical subjects. So, you are in, as im in, for a real treat. Justin driver. [ applause ] okay, so, ive been introduced by a lot of people over the years, but i have to confess, it is an odd sensation to be introduced by a Supreme Court justice. Perhaps one of the few things more odd still is being in the audience when a mighty Supreme Court justice introduced a lowly law professor. It must feel a little like youre at a really fancy restaurant where the main course arrives before the appetizer. The sort of proper standard of affairs has been woefully inverted. Its Justice Elena kagan who did the introducing tonight makes this occasion all the more thrilling for me. Not only did i have her as a professor, i was also a thirdyear law student at harvard when she became the dean. And she transformed that institution. I saw it happen almost overnight. There was free coffee for students. There was an ice skating rink. Students were smiling. These were all new things at Harvard Law School. And she did this not only in a wholesale way, but also in a retail fashion. In my third year, i was trying to decide which, you know, very esteemed federal judge that i was going to clerk for after i graduated. I understand these are very much firstworld problems. But woe was me. So, with all of the themeritiy that a law student could muster, and i have it on authority thats a lot, i decided to population a phone call to the new dean and ask her about my predicament. And she might have had slightly more pressing matters in front of her, like fundraising or reconceptualizing the entire sort of landscape of Harvard Law School. Nevertheless, she called me back, and she called me back quickly. And so, i said, you know, dean kagan, you know, should i clerk for judge Merrick Garland or should i clerk for judge x . And she said pretty diplomatically, at the beginning, at least, theyre both wonderful judges. And then her voice sort of lit up, and shes like, but merricks a friend. And then she went on to say, i think you would learn a lot from him. And by the intonation, it was clear that i had a lot to learn, like you know, dont call the dean of the Harvard Law School with your nonproblems and everything, all right . But dean kagans intervention was extremely helpful to me because my year with judge garland was lifealtering. Not only because he helped me get to the Supreme Court of the United States as a law clerk he was indispensable in that effort but more importantly because of the intrinsic experience of that year, the opportunity to work up close with a person of judge garlands towering intellect, integrity, and judgments. So im very grateful to you, dean kagan. Pardon me, justice kagan. Got a promotion, didnt you . Okay. I should also say that its odd for me to be here, because i grew up in washington, d. C. A grand total of 3. 4 miles away from where i am right now. Thats what google maps tells me. And if i tell you that i grew up out pennsylvania avenue, south and east, across the anacostia river, you will understand that its far from inevitable my being before you. Its an incredibly improbable journey, and im really glad to be here. It took a lot of help to get me here, and many of the people who helped me are in this room today and i am grateful to you. Okay, so, the truth is that the origins of this lecture date back to my time at the university of texas, when i was beginning as a law professor. And i was writing a paper that touched on brown, and i wanted to cite this document, the southern manifesto, for the proposition that it was openly and virulently racist, a naked racist, a subtly unsubtle racism. So i went and got a copy of the southern manifesto, and i read it once and i read it twice, and it did not say what i thought it said. So, i thought, maybe theres really something to this project. And im going to take it up. So, im very grateful to the Supreme Court Historical Society for inviting me to talk about this document thats largely been forgotten today. Being here is a true honor for me. In 1956, United States senator Walter George read aloud a document on the senate floor that was formally called the declaration of constitutional principles. Just about no one called it that. Everyone called it instead the southern manifesto, including the people who signed it. Its a document that 19 senators and 77 congressmen signed, all from the former confederate states, and this is two years after brown versus board of education, and they say that it was wrongly decided. And they urge it to be reconsidered. So, george was tapped to introduce the document in the senate because he was the elder statesman among the southern delegation, and when he was done, his youngest colleague in the southern delegation stepped forward. This is senator Strom Thurmond of south carolina. It was his brainchild. He was the one who conceived of a unified southern statement to push back against brown. And he said, i am constrained to make a few remarks at this time because i believe a historic event has taken place today in the senate. Even those who disagreed with thurmond and the southern manifesto thought that he was correct in viewing it as a historic occasion. Senator Patrick Mcnamara of michigan said, yes, youre right, it is historic, even if its not the sort of history of which americans can be proud. So, in 1956, people were obsessed with the southern manifesto, certainly in law schools. Many of the towering figures of legal academia at the time wrestled with the southern manifesto and what it meant. These are people like alexander bicol and Charles Fairman and paul freund, all dedicated a lot of attention to thinking about the southern manifesto. As lates 1962 in the least dangerous branch, bicol dedicates several pages toward thinking about the southern manifesto. Today, it is safe to say that the southern manifesto no longer occupies a Central Place in the minds of legal scholars. Indeed, it risks only mild exaggeration to contend that the manifesto no longer occupies anyplace there at all. Instead, within the legal literature, the southern manifesto invariably appears in passing on the way to some other destination. In looking at the fleeting invocations of the manifesto, one has the nagging suspicion that the document has been cited a good deal more frequently than it has been read. The manifestos mark diminution is documentable because the document and the debate that it generated contained essential lessons for legal audiences. Examining the manifesto does nothing less than recast dominant understandings of brown versus board of education, which is, of course, the most closely scrutinized opinion from the 20th century. And so, while law professors have lavished a great deal of attention on brown, precious little has been paid to the opposition to brown, and that is mistaken, in my view, because a close examination of the manifesto adds some sorely needed complexity to the caricature treatment that typifies scholars references to the southern manifesto. Recovering the complexity that the manifestos drafters displayed in resisting brown belies the pervasive stereotype that reads segregationists as all being enraged, unsophisticated bumpkins. To the contrary, in their efforts to preserve segregation, many senators and congressmen demonstrated the ability to be considerably more calculating, selfaware, and legally sophisticated than is commonly appreciated. So, heres what im going to do over my next little bit of time here. I am going to focus on the text of the southern manifesto, precisely because it is so misremembered as to what the document actually says, and then im going to step back and try to place the document in context. And part of the way that one needs to do that is to see what sort of arguments do not appear in the southern manifesto that one may well have anticipated and that were tropes of the segregation opposition to segregation. In thinking about this concept, its helpful to think about the various strategies that southern segregationists came up with in fighting brown versus board of education. We think of the segregationists today as being rigid and inflexible, and in fact, they were crafty and supple, even if wrongheaded, of course, in the cause that they were attempting to fight. So, finally, i will step back and examine the legacy of the southern manifesto. And its tempting to think that it has no connection to modern realities, and in fact, that would be false in the sense that not only does one hear some of these sorts of arguments in sort of ordinary places, but also even at the Supreme Court of the United States. My overarching aim here is to offer neither absolution, nor than apology for the manifestos signatories. During a period when National Figures began in earnest to march toward racial justice, the manifesto backers rush headlong in the opposite direction. Their attempt to sustain the nations racial cast system was, i believe, an atrocity. I detest the cast system that they sought to defend. But vehement disagreement with the underlying views of the manifesto backers should not prevent us from understanding what arguments they advanced, why they framed those arguments as they did, and how those arguments resonated within the context of their times. This work is vital not only for appreciating one of the nations most significant legal transformation in all its complexity, but also for appreciating the counterintuitive neutz that stem from that earlier era. So, what was the southern manifesto . You know, when people think about it today, it is very much enshrouded in the mist of mythology. And to the extent that they think about it at all. We think of segregationists as having temporarily sort of taken leave of their senses, and that the southern manifesto is a screed that sounds like nothing so much as a latter day rebel yell. You know, when describing the manifesto in its signatories, commentators say that it was driven by fear, anger, and mental illness. Just about any emotion or condition that reduces or eliminates rational thought. We hear that the manifesto was that it seethed with anger, that it bristled with angry words and that it had an ugly vehamence. People say about the signers that they were fanatic segregationis segregationists. This thinking finds its height in richard klugers simple justice, a magnificent work i hold in truly great admiration. Nevertheless, on this score, he says that the southern manifesto was an ejaculation of bile and an origiastic declaration of defiance. Its incredibly evocative language, and if one reads it, its hard to square with whats actually there on the page. A close examination of the manifesto undermines the perception of southern politicians were universally blinded by rage. To the contrary, the drafters often advanced legal arguments opposing integration to contain considerably more nuance, subtlety, and sophistication than their detractors have allowed. Recovering those arguments in detail enables one to understand how the manifesto in significant ways should be viewed as the missing dissent to brown versus board of education. Okay, so, here im going to talk about the text of it. And when thinking about the text, it should not be surprising that its filled with legal arguments. After all, the people who sort of devised the southern manifesto were legally trained. One of the main people, in addition to senator thurmond, was senator sam irvin of North Carolina, a graduate of Harvard Law School and a justice on the North Carolina Supreme Court. Along with irvin, there was senator john citizenis of mississippi, a graduate of the law school. So these people were quite legally sophisticated in the arguments that they advanced. When the southern manifesto is cited, it tends to be just the first sentence. The first sentence reads, the unwarranted decision of the Supreme Court in the Public School cases is now bearing the fruit always produced when men substitute naked power for established law. You know, the phrase naked power may strike some people as sort of heated language, but i went back and looked to see where this language appeared. And even the most sober and buttoneddown academics used that very language at the time. Herbert wexler, the columbia law professor, in his famous article toward neutral principles of constitutional law uses the same language about naked power with respect to brown versus board of education. So, focusing on that language alone sort of, you know, allows people to misunderstand what was at the core of the argument. They used overwhelmingly sort of traditional methods of constitutional interpretation. They spoke about originalism. They spoke about constitutional text. They spoke about precedent. They spoke about constitutional structure. They spoke about prudential considerations. And they also spoke about tradition. These are today what constitutional law professors refer to as the modalities of constitutional interpretation, with a tip of the hat to professor philip bobit. These are the basic forms of constitutional interpretation, and all of them appear in the southern manifesto. When i teach the modalities of constitutional interpretation, i use the southern manifesto and ask students to identify the forms of argument. The first in the sort of dominant mode is, they say that the decision in brown betrayed the original understanding of the 14th amendment. They say, weve looked at the debates in congress, and theres no reason to believe that they thought that schools should be integrated. After all, they say, the very congress that discussed the 14th amendment and that crafted the language would subsequently have racially segregated schools in the district of columbia. So, how can you square brown versus board of education with the original understanding . They also made a textual claim. They say that if you search the constitution for the word education, you will not find it. This is what i sometimes think of as the controlf theory of constitutional interpretation, where you just try to see if its there, and if its not, then theres nothing to be done about it. People did push back on this idea at the time. Alex bickel said, you know, its true that the term air force doesnt appear in the constitution either, but the president s authority as commander in chief is not consequently the less. They also spoke about precedent. Were thinking here about plessy versus ferguson from 1986 and also gonlong versus rice in 1957, a case that didnt involve schools. And they made the traditional move that one would expect. That is to say that people have ordered their affairs, so in reliance on the legitimacy of racial segregation in schools. And brown versus board of education, they claimed, has come along and pulled the rug out from under t