Justin Driver, "The Southern Manifesto in Myth and Memory"
Justin Driver is Harry N. Wyatt Professor of Law and Herbert and Marjorie Fried Research Scholar. His principal research interests include constitutional law, constitutional theory, and the intersection of race with legal institutions. Prior to joining the University of Chicago Law School faculty, Driver was a visiting professor at Harvard, Stanford, and the University of Virginia. He began his career in legal academia at the University of Texas in 2009.
This Loop Luncheon was presented on April 29, 2016, as part of reunion weekend.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Dean Miles: So good afternoon and welcome. Welcome everybody to today's Loop Luncheon. My name is Tom Miles. For those who haven't met me, I'm the Dean of the Law School, and I'm delighted to welcome you today both to the Loop Luncheon and to the first event that kicks off our reunion. We've got a lot of reunion celebrants here today, many of whom who have traveled far distances and some of whom have traveled, almost no distance at all. And we're very pleased to welcome all of you. We've got 950 registrants for reunion, so we're very pleased with a terrific turnout from our loyal graduates. My duty here is just to introduce today's speaker, Justin Driver, and it's something that I'm just thrilled to do. Justin has been with the law school now for several years and Justin has the most enviable academic credentials. He received his undergraduate degree from Brown University and Justin holds two master's degrees, one from Duke and one from Oxford where he was a Marshall Scholar.
Justin Driver: He graduated from Harvard law school where he was an articles editor of the Harvard Law Review. He served as a law clerk to Judge Merrick Garland of the US Court of Appeals for the District of Columbia, and then served as a law clerk for not one but two Supreme Court justices, Justice Sandra Day O'connor and Justice Breyer. And I just want to note one thing about Justin. Just last week I happened to be in Washington DC and I happened to meet Judge Garland, and the very first thing he said to me when I told him that I was from the University of Chicago Law School was he said, Justin Driver, you have Justin Driver on your faculty and you are really lucky to have him on your faculty because he's outstanding. So prior to joining our faculty, Justin taught at the University of Texas. He visited at the University of Virginia and Stanford and Harvard. His research interests include constitutional law, constitutional theory, and the intersection of race and legal institutions. I'm very happy to report that just this fall, Justin became the Harry N. Wyatt Professor of Law. His talk today is entitled the "Southern Manifesto in Myth and Memory." And Justin will take questions at the end of his presentation. So please everyone, welcome Professor Justin Driver.
Justin Driver: Okay. So thanks for coming out today. I'm delighted to be here. The title of my talk is the "Southern Manifesto in Myths and Memory," and I think it's an appropriate topic for an occasion like this because the Southern Manifesto just had its 60th anniversary as a document. And obviously a lot of people here are celebrating an anniversary from when they graduated from law school so it seems appropriate at this time to think about what the Southern Manifesto means. The civil rights movement is often having, you know, anniversaries. So Brown v. Board of Education recently celebrated its 60th anniversary, the civil rights movement... pardon me, the Civil Rights Act of 1964 had its 50th anniversary not long ago. Last year, the Voting Rights Act of 1965 had its 50th anniversary. One sees stories in the media where people are writing about what that means and how far we've come as a nation.
Justin Driver: And for good reason. It seems regrettable though that some of the, some of the less happy dynamics from the civil rights era are not also remembered. And the Southern Manifesto certainly is a not happy moment. What is the Southern Manifesto? It's a document from 1956 in March that said the Court's two year-old decision in Brown v. Board of Education was wrongly decided and it condemned the decision. It was issued by the overwhelming majority of the southern senators and Congressmen who disagreed with the Brown decision. And so I want to think about the Southern Manifesto because when we do not pay attention to documents like the Southern Manifesto, which offers a defense of racial segregation, uh, it can lead to the mistaken conclusion that that document and the mentality that created it bear no relationship to our modern world.
Justin Driver: That is exactly wrong, and we often think about the southern manifesto, to the extent that it's thought about at all, as being a document that is bristling with anger and that its defense of racial segregation was overt and hostile and just blatant in its defense of racial segregation. And I just knew that this was the case. I was writing an article for New Republic and I wanted to cite it for the proposition of it being openly hostile and bitter and angry. And so I go to look at the document and I read it once and it did not say what I knew it said, and so I went back again and thought, well, it has to be here. I'm waiting to find the smoking gun of racial bigotry that is right there on the face of the document. And it basically doesn't exist.
Justin Driver: And so what does one find instead? One finds it is intensely legal document. You know, it is based on precedent and original understanding, and other modalities of constitutional interpretation. And so, uh, the, this should be no great surprise, many fine legal minds were responsible for the Southern Manifesto. Sam Ervin of North Carolina was, as you know, obviously as a United States senator and a graduate of Harvard law school. John Stennis of Mississippi was a graduate of the University of Virginia law school. Russell of Georgia, went to the University of Georgia. Strom Thurman, whose brainchild the Southern Manifesto was, was also a lawyer. And so these folks were very sophisticated at marshaling the arguments that they had a before them in order to defend the system of racial segregation. In order to be, avoid being mistaken, I am not a believer, a cheerleader for the Southern Manifesto in any way, right? I despise this document, but I think we, again, do ourselves a great disservice by not wrestling with the arguments as they actually were made because when you do so you appreciate the sophistication and the flexibility of the argumentation that they made.
Justin Driver: Um, we sometimes think of segregationists as being intransigent and stiff and unbending, but they had arguments and they had backup arguments and they were above all lawyerly. Okay. So I'm going to talk a little bit more about what the Southern Manifesto was, and in one way of viewing it is to regard it as the Anti-Brown v. Board of Education. As you will, as many of you know, Brown v. Board of Education is a unanimous decision, that is incredibly important to its mythology, and we can understand the Southern Manifesto is offering a dissenting view on the question. Again, it comes two years after Brown and the connections to Brown don't, don't, uh, you know, are, are, are also that we know that Chief Justice Warren, when he wrote the Brown opinion, wanted to focus on the tone of the opinion.
Justin Driver: He said that he wanted the opinion to be unemotional, non-rhetorical and non-accusatory in an effort to reach white southerners and feel like they were not being attacked. This other manifesto has a similar idea about tone. It is written in a sort of plain language in order to avoid alienating not white southerners but instead white northerners. And so where Earl Warren was interested in reaching out to the South and saying, listen, we're not condemning you all as people. Uh, the Southern Manifesto conversely was targeted toward the North. And the final connection is the emphasis on unanimity where Warren worked very hard in order to have a unanimous court, the people behind the Southern Manifesto thought that they would have greater success if they could get as many people on board as possible.
Justin Driver: Uh, and they achieved a great amount of success on that front. They wrote it in fewer than a thousand words and it was designed like Brown v. Board of Education itself to be reproduced in newspapers around the country because they thought that that would have a greater effect in reaching their goal in attempting to not whip up segregationist sentiment in the South, but instead at attempting to tamp down integrationist sentiment in the North. Okay. So I'm going to talk a little bit more now about what Brown, pardon me, what the Southern Manifesto actually said. As I've said, people think of it as a latter day rebel yell, that it is this angry document and that's simply not true. They make arguments sounding in text. One of the points that they make on is that the Constitution of the United States does not mention the word "education" at all and therefore it's improper that the United States Supreme Court decided the issue as it did.
Justin Driver: It made an argument about original understanding of the 14th Amendment. They talked about the way in which the framers of the 14th amendment, and the very congress which proposed the amendment subsequently provided for segregated schools in Washington DC. So given that, how can it be that this 14th amendment, they say requires racial integration. They also talked about precedence. They said there are a long standing series of precedents that are on our side. They also talked about Plessy v. Ferguson and separate but equal but from 1896, but they also spoke about Gong Lum v. Rice from 1927, a case involving a challenge to racial segregation. That case did not find any violation of the Constitution. And so they say, in effect, we have invested the resources of our region in honoring these precedents. And so when the Court has pulled the rug out from under us, it's thrown a great deal up in the air.
Justin Driver: They also make arguments that sound in Constitutional structure. They talk about principles of federalism, uh, and, uh, they say that obviously segregation did exist in the North. Indeed, they delighted in saying that the doctrine seems to have originated there in its schools and, uh, that we need to allow just as the North was permitted to get rid of segregation on its own timetable, the South should be able to do that as well. They said that the proper venue, sounding constitutional structure, was not a judicial decision, but instead it should have come in the form of an Article V amendment, and that's what needed to happen in order to get rid of racial segregation. Southern Manifesto also made an argument about the way in which, a sort of a consequentialist argument, cost benefit analysis argument, and they say that, uh, well, the benefits were, were, were nonexistent, right?
Justin Driver: And that the cost would be that it threatens public education as a system within the states and they suggested that perhaps things were going to shut down altogether. They also made an interesting argument about tradition. They, they make a claim very much echoing Pierce v. Society of Sisters in saying that parents need to be able to control the education of their children and these judges have come in and taken that away from us. Pierce v. Society of Sisters is a case from 1920s where, out of Oregon, where they say there's a referendum that says we're going to get rid of private schools all together and religious schools altogether as well. It was sponsored by the Ku Klux Klan and their concern there was that Catholics, they thought, we're not going to be a fully Americanized through the public school system.
Justin Driver: And so they should, we need to get rid of those schools altogether. The Supreme Court of the United States steps in and says, that's impermissible because the child is not the mere creature of the state. And so while, uh, you know, Thurmond and Irvin and others are studying law that decision is handed down. And it seems to me that it very much appears in the text of the Southern Manifesto itself. Okay. So, uh, that is the text of the argument, uh, you know, and one of the, one of the things that's notable about it and one of the ways that you know, that the Southern Manifesto is not designed to whip up segregationist sentiment in the South is by the way in which it eschewed the open appeals to racial bigotry that existed even by sophisticated people during that day. Um, the people would say the reason to oppose segregation, um, uh, pardon me, the reason to oppose integration is they would talk about black criminality.
Justin Driver: They would speak about a supposed penchant for a venereal disease found in the black community. And they would say, we can't have integrated schools because all of these terrible things are going to happen and they would say that what's really driving the analysis here is that they want integrated classrooms because that will pave the way for integrated bedrooms, right? That these are going to have mixed schools and that terminology again, does not appear in the Southern Manifesto itself. And so the fact that they were able to eschew that says that they were sophisticated and deciding which arguments to select and which to avoid. Um, okay. So, the Southern Manifesto was regarded as being very effective at reaching its audience. There are letters that exist from a Philip Randolph, a civil rights leader from the era saying that this is a really dangerous opinion, the Southern Manifesto, because it's already reached white Northerners.
Justin Driver: And I can tell by the way that it has, uh, gotten rid of some of the desire for integration in, in the North. Um, you know, there is one, uh, truly a regrettable instance of racialized thinking that appears in the Southern Manifesto. So I don't want to be misunderstood as saying that the document is completely free of racial appeals that are, that, that reveal a, a regrettable understanding. It says, uh, that Brown had destroyed the amicable relations between the white and Negro races and planted hatred and suspicion where there has been heretofore friendship and understanding, right? So Brown was, you know, a terrible decision because we had a good thing going here in the South and uh, and it really came along and planted suspicion and hatred. Right? And so this was understood even at the time as being regrettable, but it's a testament to how widespread this idea existed that this made it made its way in.
Justin Driver: People would say, white people in the south would say at the time of black people don't want integration. Um, you know, uh, I, I asked my cook and she told me so, right? Um, and so this was the, the, the sort of dominant mindset. And so it does, it does appear there, but it is most the marble, this other manifesto is not at some of that thinking appears that, but it's so much of it was, was excised in it and it simply does not appear on the text of the document. Um, uh, okay. So, another important aspect of the Southern Manifesto and something that complicates a dominant understanding in legal circles is the way in which some people say, yeah, you can pay attention to the text of the manifesto, but really what that was designed to do was to lead to lawlessness and violence, right?
Justin Driver: They may be saying one thing, but what they really mean is something quite distinct. And so that's an important consideration. And I think it's unavailing. The reason that I think that it's unavailing is because I found a number of signatories of the Southern Manifesto who expressly not only tell their constituents to avoid violence, but spell out the negative consequences that will flow from violent acts. They say we will lose the, lose the white North if we commit acts of violence. Um, so there's, uh, Allen Ellender of Louisiana said, and here's a quote he says, "What the South must avoid at all costs, is violence, lawlessness, hatred and bloodshed. The outside agitators who seek the subjugation of both the white and the Negro races in the South are waiting for us to make a misstep." Eastland, James Eastland, Mississippi, made a similar claim.
Justin Driver: He says, "Violence and lawlessness will hurt this organization. These acts are turned against us by our enemies. They are effectively used to mold public sentiment against us in the North. It is imperative that we be looked upon with favor and have the best wishes of the average American," right? And so, uh, if they were willing to against spell out the negative consequences that would flow from violence and say that this is going to hurt us, something that many people think actually played itself out ultimately, and that, uh, the violence surrounding Little Rock Central in the 1950s and even more importantly, the Edmund Pettus bridge in the 1960s that, that was, those images were so startling to the North, that it got people off the cause of, or pardon me, it got people off of the fence on the question of whether racial integration was required.
Justin Driver: Um, so, uh, they were able to do that is indicative about them having the ability to think down the road and identify the consequences that are negative and that they wish to avoid. Okay. They also were incredibly strategic about their defense of racial segregation. Um, it's important to understand that when the Southern Manifesto is introduced, that the latest word is not Brown v. Board of Education from the Supreme Court, uh, but instead the far hazier remedial decree and Brown II, the document that famously required integration to unfold at, with all deliberate speed, right? That, uh, that, that incredible sort of paradoxical statement. And so what happened is that that Brown II happens in 1955, the Southern Manifesto comes out one year later and what the Southern Manifesto is in effect doing is not so much attempting to defy the law, but instead to define the law and to say that we need to be slow as we pursue racial integration.
Justin Driver: And so they had a number of hopes and desires as to how to deal with race in schools. One of them was to call for outright reversal, right? The idea here would be that the Supreme Court of the United States could reverse its decision and backup. There are people who were saying that that's in the text of the document itself and people on the outside were saying, uh, that, that was a product of propaganda. And, um, of a political court and if they were political as they agreed to strike down segregation, there's no reason they can't be political in agreeing to reverse that decision. And they said we have to take our case at the bar of public opinion in order to try to get the victory that we want. They couldn't get an outright reversal. They also entertained the possibility of a constitutional amendment themselves, allowing states to resolve this issue as they would.
Justin Driver: Um, that may sound incredibly farfetched. But in 1956, Brown had not yet attained the sacrosanct status that it would over the, over the course of the next decade, many of you know Herbert Wexler. And in, uh, in the late 1950s says he can't keep up. He cannot, he cannot identify a constitutional argument that makes it clear that Brown was correctly decided. Someone who is a defender of racial integration. But Wexler says, I can't, I can't get there. Um, so, uh, when the Southern Manifesto is issued, um, uh, there were many people who did think that this should be left up to the states. Indeed in 1959, Gallup takes a poll saying, should there be a, you know, a constitutional amendment on this question and a majority of the respondents supported amending the Constitution, that's across the nation in 1959. Uh, so that's not how we think of it today.
Justin Driver: That Brown was handed down and people certainly in the North said a amen, thank goodness, but that's not exactly how it was in the 1950s. Okay. So then they also had, uh, an argument about doctrine and they thought that we could, that they could influence the district courts to go slow as they pursued racial integration. These politicians were incredibly attuned to what was happening in the lower courts. And they took a page from Judge John Parker of the Fourth Circuit in saying that Brown v. Board of Education does not require integration, it merely forbids segregation, right? Uh, so we can be careful and lawyerly here and they say that's the correct meaning of Brown. Sam Ervin was a of, of North Carolina was very much making those arguments, uh, and uh, and Strom Thurmond was also, he would identify Judge Parker by name.
Justin Driver: So the idea that these were sort of unsophisticated and unsophisticated bumpkins who were making these arguments is just plain wrong. Okay. So they also made a claim that there could be a system of what they call voluntary segregation, right? Because black people don't supposedly want segregation in the South, then there will just be, yeah, a voluntary system and people would effectively support themselves. And the right when the Southern Manifesto was introduced, when it was introduced by Senator Sam Ervin of North Carolina made a fascinating argument in a statement to the press. He said, while the Supreme Court decision is deplorable from the standpoint of constitutional law, and ought to be reversed for that reason, it is not as drastic as people think. Right? So while it's deplorable from the standpoint of constitutional law, it's not as drastic as people think. And over time, what the Southern Manifesto signatories would do would be to deemphasize the first part of that statement about the decision being deplorable and emphasize the second part of the statement and say it's not as drastic as people think.
Justin Driver: I'll talk more about that in a moment. Okay. So they also came up with this idea about attendance zones. They again delighted in saying whatever keeps schools separate in the North is what we'll do down here in the South. They would talk about Harlem in New York City and say, well, you know, last time I checked, there weren't a lot of white students attending school in Harlem. And so whatever works up there for you all, we will import down here. Okay. They also talked about segregating schools, not by race but by sex, that this would be one possibility of avoiding the most catastrophic consequences from racial integration because the real fear was that there would be black boys in schools with white girls. And this, would it be a method of avoiding that in some districts, particularly in Louisiana, did attempt that and enact that measure.
Justin Driver: So they also talked about abolition of the public schools. Okay. So there has been a fair amount of history here and it's tempting to think of this as a completely bygone era. One that has no connection to our own world whatsoever. And I want to be clear, obviously the first order argument that the signatories of the Southern Manifesto advanced asking for Brown to be reversed or permitting schools to segregate students by law according to race. Obviously that is a losing argument and no one who's serious would make the claim that that's the world in which we live today. Nevertheless, it seems mistaken to view the Southern Manifesto and its signatories as having suffered a complete and utter defeat. You know, if one understands the more modest claim of trying to attain the meaning of Brown v. Board of Education, uh, it's difficult to view that as a completely unsuccessful movement.
Justin Driver: What makes me say that is that the move that Senator Ervin made in 1956 saying it's not as drastic as people think over time would carry the day and it is not really some sort of hypothetical, but instead it is found in the leading Supreme Court case of the day. It is part of our constitutional doctrine, arguments that Senator Ervin would shape over time. So there's a case from 2007 called the Parents Involved in Community Schools v. Seattle where I think that Sam Ervin may have ultimately been vindicated. Okay. So let me talk about Ervin's evolution and how we got where we are today and where constitutional doctrine is today. Okay. So as I said, Senator Ervin says not as drastic as people think. And so, uh, that's in 1956, but when in 1963, he has made an overt effort to pivot and to try to say Brown doesn't require school districts, even those that were formally segregated, to take account of race.
Justin Driver: So in August 1963, uh, Senator, pardon me, Attorney General Robert Kennedy comes before a committee that, uh, Irvin's on and he did and that Senator Ervin did not condemn Brown, no longer a frontal assault, but instead attempts to shape Brown and he says, uh, to, to, to Attorney General Kennedy, "Do you not agree with me that denying a school child the right to attend his neighborhood school and transferring him by bus or otherwise to another community for the purpose of racially mixing the school and that other community is a violation of the 14th amendment as interpreted by the Supreme Court in Brown v. Board of Education," right? It's a very carefully worded question, uh, and is and is designed to elicit one answer. And so, uh, Attorney General Kennedy's caught somewhat flat-footed here and according to reporters in the room, he apparently twisted in his chair and he says, awkwardly, "You could make an argument along those lines."
Justin Driver: And Ervin says in response, "I don't see how you can disagree with me." Okay? So flash forward 20 years from that moment when Ervin writes his memoir, which is called "Preserving the Constitution," he says that he gave priority of thought to the Reconstruction amendments and he came to the conclusion finally that Brown v. Board of Education was rightly decided after all, uh, and he says, uh, the Constitution is colorblind as the first Justice Harlan maintained in his dissent in Plessy v. Ferguson requires the states to ignore the race of schoolchildren in assigning them to their public schools. Okay. Uh, and so it's this vision of Brown v. Board of Education that the Supreme Court vindicated ultimately in 2007. Again, there in the case out of Seattle and its companion case out of Louisville, Kentucky, there are school districts that want to have greater amounts of racial integration.
Justin Driver: than would be a possible, uh, if just from going from students attending schools in their neighborhoods. And so they take account of race in order to, in their own words, sort of bring the students together so that they can learn to be participants in the diverse society that we have today. So they are, are they the, the school districts in Louisville and Kentucky would view themselves as attempting to make the promise of Brown a reality. In a 5:4 decision, uh, the Supreme Court of the United States struck down these plans and says that this violates Brown v. Board of Education. According to the opinion written by Chief Justice John Roberts, the harm in Brown, uh, the, the harm that Brown combated was assigning students to schools on the basis of race and that's what these programs do as well. Roberts' opinion says before Brown school children were told where they could and could not go to school based on the color of their skin.
Justin Driver: And that's the issue here. When it comes to using race to assign children to schools, history will be heard. He says, um, and so this invalidation of these programs is an incredibly important legacy of the signatories of the Southern Manifesto, I argue. And so I think that Chief Justice Roberts was exactly right when he said that history will be heard, uh, through that argument that he was making. But it was not the sort of history that he had in mind. In 2007 when I was a law clerk on the Supreme Court for Justice Breyer, uh, you know, I can remember reading that opinion and watching them come, come around and I was unaware of this history at that time. Uh, but I do think that in 2007, that somewhere Senator Sam Ervin was smiling. Okay. With that, I will open it up to questions and objections and anything else that you all have? Don't be bashful. We are here at the University of Chicago. Yes?
Question One: [inaudible] ... I probably should have, but I asked him about the Civil Rights bill. '63 Civil Rights Act, which he also voted against. And I said sir, you know, he's, he was now gone from the Senate and I said, "Why'd you do that?" You know, he was clearly, he was a liberal as became clear when he was chairman of the Foreign Relations Committee and he became the foremost opponent of the Vietnam War in the Senate. I said, "Why'd you do that?" And he said, Oh yeah. He said, I, "I didn't believe in it. Uh, so I didn't believe in it. I did it because my constituents demanded it." I'm wondering, were there others like that? I mean, because the group of them, I guess Lyndon Johnson did not sign it, but almost every other Southern senator and Congressman did. And were there others who in later life said, admitted that really they had done it for political reasons that they didn't really believe it or at least didn't believe it anymore?
Justin Driver: Wonderful question. Thank you for asking. So yes, Senator Fulbright did sign the Southern Manifesto. Of the 22 senators in the Old South, 19 of them signed, signed it. Johnson did not sign it exactly as you say. He was majority leader at the time and he made the claim that he didn't, he wasn't really aware of it and they wouldn't have wanted him to sign it. Lyndon Johnson a shrewd tactician, right? And then the two senators from, from Tennessee, Gore, the Vice President's father, and Kefauver also did not sign it. So yeah, Fulbright is a fascinating figure. He was regarded as, um, you know, a very cosmopolitan figure. He was, he was a Rhodes scholar and many people at the time said he doesn't really believe that, right? You know, he has to do so for his constituents.
Justin Driver: I'm exactly as you suggest. And, but they did. They did seem to think, people at the time, that one could not be both sophisticated and bright and a segregationist at the same time. And there's no reason to believe that Fulbright was not a segregationist. One legacy of the Southern Manifesto is that many ways Fulbright is a casualty. He's going to be Secretary of State in the Kennedy administration, just about everyone believes. And his signing the Southern Manifesto was seen as a very hurtful thing to have done at that time. So a lot of people did try to, in effect, waffle on this and you know, Fulbright signed only after circulating a statement where he suggested that he had, you know, defanged it in effect, and he made it more palatable than it actually was when the original draft by Strom Thurmond didn't move all that much.
Justin Driver: There were some slight, slight tweaks and modifications that were done as a result of the committee. But yeah, this did cause people pain going forward and some, some of the people in the House that did not sign it, um, and the House of Representatives, would say they didn't sign it, but, uh, they would say we didn't sign it because they didn't think that was the most effective way of defending segregation. Right. There was a Congressman from Texas called Polk. He says, uh, you know, and the way to do this is not to go on a hill and to howl at the moon, like a bunch of coyotes here, right? Drawing attention to yourselves, we can just sort of slow walk this and this is the better way to do this. So this was something that really did cause people a great, a great amount of pain having, having signed it over over the course of time. And people would say, yeah, that wasn't really me, those weren't my, those weren't my, uh, my true, my true views. So thanks. Other questions please?
Question Two: I actually looked up the Southern Manifesto and read it on my smart phone while you were speaking and I, I'm particularly struck by the 11th paragraph to which you adverted and paraphrased, if not entirely quoted. It is a short paragraph consisting in three sentences that I would like to quote. It says, "This unwarranted exercise of power by the court, contrary to the Constitution, is creating chaos and confusion in the states principally affected. It is destroying the amicable relations between the white and Negro races that had been created through 90 years of patient effort by the good people of both races. It is planted hatred and suspicion where there has been heretofore friendship and understanding." And when you adverted to that paragraph and paraphrased the language, perhaps quoted in second sentence, there was a certain knowing, tittering of laughter here in the room. Let me say that I have lived in the South, the deep south, the mid-south as well as the north and northeast, the east coast and the Midwest, and you mentioned Louisville, Kentucky in particular.
Question Two: I can tell you from having spent a great deal of time in Louisville where my mother who recently passed was from that there is a great deal more of racial integration in and around Louisville, Kentucky than you see in and around Chicago, Illinois, which despite its vast diversity, remains famously one of the more segregated cities in the United States of America, if not the world. My second point is that I was struck by how similar the language of this paragraph and in particular the last sentence is to Chief Justice Roberts' dissent in Obergefell last term, which of course constitutionalized the right to marriage in which paraphrasing the Chief, he said something like, in much more erudite terms, "It's a shame that the Court has taken this decision out of the hands of the people, especially when the wind seemed to be so much at the backs of the people in favor of same sex marriage." So my, my question with yet another very controversial, at the time, Supreme Court precedent in mind is this, can we not view Brown v. Board of Education, Roe v. Wade, and now Obergefell is three extremely powerful and important Supreme Court precedents that no matter how laudable we agree the results may be, are really very troubling from a standpoint of trying to square them with the language and the intent of the Constitution.
Justin Driver: Okay. So there's, there's a lot there. Um, okay. So, uh, you know, uh, I'll try to begin where you began by trying to pay attention to the racial dynamics that existed in the North. I mean, I think it's an important point that and it's something that the framers of the Southern Manifesto often tried to point to the North and say, the people who are going to feel this issue most acutely are those in the South. And in some of my other work, I paid attention to where black people were in the nation in the 1950s, in the overwhelming majority of the black people in the nation in the 1950s were in the South, not in the North. And so, in that work, I tried to suggest that the opinion polls that were taken in the immediate aftermath of Brown v. Board of Education were needed to be taken with a grain of salt as to whether people agreed with the decision or disagreed with the decision because in many states where there are very few black people, this is a hypothetical and an abstraction, right?
Justin Driver: And I am sympathetic, even, dare I say, to the claim by white southerners at the time, look at what's happening in the North with respect to race. Obviously anybody who is paying attention to the composition of our schools in today's society is aware that there are very few schools that really sort of looked like the racial composition of the nation as a whole. Right? So that's, uh, you know, a real cause for distress. Okay. I'm okay on the, on the, on the, on the other question about whether Brown and Roe and Obergefell, you know, I don't, I don't know that we could be here for a long time if I were to talk about each of those, but I mean, I'll say this: with Brown v. Board of Education, I think that if I understood the thrust of the question, I think that's a relatively unusual take that Brown is difficult to square with constitutional principles.
Justin Driver: And it's true that, uh, you know, it's, that the intent of the framers may not have been that, but that's not the only way that we interpret the Constitution and many people obviously understand the Equal Protection Clause to have articulated a principle and that it arose from the Civil War and that principle one of racial equality and that the Brown decision was very much designed to, uh, to, uh, to, uh, to give voice to that, to that commitment. Uh, so I think it is an unusual position to say that maybe Brown was constitutionally regrettable. As to the other decision, and it's worth saying how quickly Brown was accepted. One of the reasons of horse that it fostered or that it generated such widespread agreement was because people could pledge allegiance to Brown while turning to salute in very different directions.
Justin Driver: Right? I mean, yeah, everybody agrees that Brown was rightly decided, but deep disagreement about what Brown actually means. And that emerged very quickly, that emerged very quickly during Potter Stewart's confirmation hearings, he said he thought Brown was rightly decided. Um, and those happened in relatively short order after Brown. Uh, it's, it's obviously the other two opinions. Roe was decided a long time ago now. You know, it is, it is a, it was decided more than four decades ago, right? Something like 43 years ago. Um, it is, uh, you know, worth thinking about the difference in reception from Brown to Roe and in Obergefell. That's not to say, of course, that simply because a decision is unpopular, therefore, it is unconstitutional or it should be rethought. There are many decisions that are, uh, that are, uh, remained controversial, but the, that, that many people think are completely compatible with the Constitution. I'm writing a book right now about, uh, the Constitution and the Supreme Court's constitutional interpretations as they have played a role in public schools and a few decisions have been more controversial and generate a more durable controversy than the Court's decisions involving religion in public schools.
Justin Driver: There's decisions are still widely unpopular, but many people think that that is compatible with the Constitution. With that, we have time for more questions as well. One more question and then we should call it a day.
Question Three: I'm not sure this is going to come out as a question, but I'm going to give it a try. I came to the University of Chicago Law School and I found it very lawyerly, which is excellent. That's something that is appreciated, but I found that also lacking. So I left in the middle of Law School and went down to McComb, Mississippi and became a civil rights worker. And after law school, I went down and tried the cases your talking about. I tried school desegregation cases. I tried cases where they separated by sex, and I too founded it a strange culture, so I became a scholar of the culture and have read a tremendous amount and I applaud you for touching the one of the third rails in American history, which is race. But I'm afraid that if you leave it a little short when you simply approach it in a more lawyerly way, and that was my problem in law school and that's the reason I left. But it's the reason I use the craft that I got in law school to fight for all of the things that you're talking about and why I still fight and will continue fighting. First of all, when you send your national representatives to Washington and they come back and they blast segregation, which I have seen up front and personal, living in the African American communities in the South and representing the people there. When they come back and issue manifestos like this, I know that it is not the scope of your paper, but you need to appreciate the message that sends to the citizens' councils, which are the uptown business people across the South, and the message that sends to the Klan.
Question Three: And it bleeds over, and then you have to fight all these things and it bleeds into a decision that I've talked about in speeches called United States v. Wood where Judge Cameron says exactly what that 11th paragraph says about how good things were when they were the antithesis of good. It was evil. So you can dress up evil in a pleasant Manifesto using legal skills, but it's evil.
Justin Driver: So thanks. Thanks for that comment. I do appreciate it. I have written a law review article, uh, that, uh, I hope, I, I hope that I can send to you and I would be very grateful for whatever feedback you have. In that law review article that I actually have a copy of it here, you know, I call, I called the Southern Manifesto an atrocity. I think that that's what it was. When the nation was preparing to move headlong toward racial integration, these folks were dedicated to stopping that proposition. So you and I, I think, are in complete agreement. What I think is mistaken is not wrestling with the arguments that they actually made and not subjecting them to scrutiny, and my problem with the Southern Manifesto is that it is, one of my many problems with the Southern Manifesto I should say, is that it is more often cited than it is read. And if you think that the words themselves don't matter, that seems to me to be deeply mistaken.
Justin Driver: I am in complete agreement with you that lawyers' skills can be used for ill and for good, but if you think that it does not matter that these were lawyerly, I think that, that, that is, I think that's wrong. And the reason that I think that it's wrong is that they were marvelously effective at limiting Brown v. Board of Education, which is obviously, the risk of stating the obvious, I think of Brown v. Board of Education as being incredibly important achievement and one whose full scope has yet to be felt. Thank you very much. I really appreciate it!
Announcer: This audio file is in production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.