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Supremacies and the Southern Manifesto University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2014 Supremacies and the Southern Manifesto Justin Driver Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Justin Driver, "Supremacies and the Southern Manifesto," 92 Texas Law Review 1053 (2014). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Articles Supremacies and the Southern Manifesto Justin Driver* In March 1956, the overwhelming majority of senators and congressmen from the former Confederate states joined forces to issue the Southern Manifesto. That document marshaled a series of constitutional arguments contending that the Supreme Court incorrectly decided Brown v. Board of Education. Legal scholars initially lavished considerable attention on the Manifesto. Today, however, the Manifesto no longer occupies a centralplace in the American legal imagination. No law review article, or any other work written by a law professor, has appearedin more thanfifty years that examines the Manifesto in a sustainedfashion. This Article contends that the Manifesto should be restored to a prominent position in legal scholarship because the document serves to recast two prominent debates that have occupied constitutionallaw scholarsfor decades. First,analyzing the Manifesto reveals that many southern politicians werefar more legally sophisticated,calculating, and shrewd in defending white supremacy than legal scholarship generally suggests. Second, examining the remarkable public debates generated by the Manifesto demonstrates that, contrary to popular constitutionalism's account, widespread support for judicial supremacy predated the Supreme Court's articulationof the concept in Cooper v. Aaron. Although it may be tempting to view the Manifesto as promoting ideas that have no connection to current conditions, the document continues to have resonance within the modern constitutionalorder. * Professor, The University of Texas School of Law. I received particularly insightful feedback on this project from David Barron, Tomiko Brown-Nagin, Margaret Burnham, Josh Chafetz, Richard Fallon, Laura Ferry, James Forman, Jacob Gersen, Risa Goluboff, Ariela Gross, Lani Guinier, Daniel Ho, Aziz Huq, John Jeffries, Laura Kalman, Randall Kennedy, Michael Klarman, Alison LaCroix, Sanford Levinson, Kenneth Mack, John Manning, Jonathan Masur, Melissa Murray, Martha Nussbaum, James T. Patterson, Richard Pildes, Scot Powe, David Pozen, Saikrishna Prakash, Richard Primus, George Rutherglen, Benjamin Sachs, Jane Schacter, Frederick Schauer, Jordan Steiker, Matthew Stephenson, Geoffrey Stone, Lior Strahilevitz, David Strauss, Karen Tani, Gerald Torres, Mark Tushnet, Laura Weinrib, and Ted White. Jane O'Connell of The University of Texas School of Law Library went well above and beyond the call of duty in helping me to obtain the materials I needed to undertake this project. I also benefited from indispensable research assistance provided by Parth Gejji, Kyle Kreshover, Liam McElhiney, Javier Perez-Afanador, Jim Powers, and Julia Wilson. I am also grateful for the questions and comments I received from faculty workshop participants at the following law schools: Harvard, Northeastern, Stanford, the University of Chicago, the University of Michigan, the University of Texas, and the University of Virginia. 1054 Texas Law Review [Vol. 92:1053 Introduction On March 12, 1956, United States Senator Walter George read aloud a document on the Senate floor formally labeled the "Declaration of Constitutional Principles."' Despite that imposing official title, just about everyone-including the document's drafters-called it the "Southern Manifesto."2 The room must not have contained much suspense about the content of George's statement, as that morning's edition of many newspapers had already printed the document's full text, alongside the names of the nineteen senators and seventy-seven congressmen who had endorsed it.3 These politicians, all from the former Confederate states, had joined together to denounce the Supreme Court's two-year-old decision invalidating racially segregated public schools in Brown v. Board of Education. George, with more than three decades of senate experience representing Georgia, had been tapped to deliver the address on account of his senior status among the southern delegation.' When George concluded, his most junior colleague-Strom Thurmond of South Carolina-stepped forward to grasp the glory he felt was rightfully his as the person who conceived of the joint statement.6 But before Thurmond explained his aims for the Manifesto, he paused to honor the moment's significance. "I am constrained to make a few remarks at this time because I believe a historic event has taken place today in the Senate," Thurmond said.7 Thurmond was far from alone in deeming the occasion momentous. Even several senators who applauded Brown acknowledged that the Manifesto's recitation was no ordinary event. Senator Patrick McNamara of Michigan--one of the many elected officials who would feel compelled to discuss the Manifesto in the coming weeks-allowed that the moment was "historic."8 Nevertheless, he insisted "it was not the kind of history of which Americans can be proud."9 1. 102 CONG. REc. 445941 (1956) (statement of Sen. Walter George); William S. White, Manifesto Splits DemocratsAgain, N.Y. TIMES, Mar. 13, 1956, at 1. 2. See 102 CONG. REC. 5445 (1956) (statement of Sen. Strom Thurmond) (discussing the "manifesto of the southern Senators"). For insightful biographical treatments of Thurmond, see JACK BASS & MARILYN W. THOMPSON, STROM: THE COMPLICATED PERSONAL AND POLITICAL LIFE OF STROM THURMOND (2005); NADINE COHODAS, STROM THURMOND AND THE POLITICS OF SOUTHERN CHANGE (1993); JOSEPH CRESPINO, STROM THURMOND'S AMERICA (2012). 3. See, e.g., Text of 96 Congressmen's Declaration on Integration, N.Y. TIMES, Mar. 12, 1956, at 19 (indicating that the document had been issued one day earlier). 4. 347 U.S. 483 (1954). 5. See ALBERTA LACHICOTTE, REBEL SENATOR: STROM THURMOND OF SOUTH CAROLINA 128 (1966) (noting that George was the South's senior senator). 6. See The Southern Manifesto, TIME, Mar. 26, 1956, at 25 (acknowledging Thurmond conceived the Manifesto). 7. 102 CONG. REC. 4461 (1956) (statement of Sen. Strom Thurmond). 8. Id. at 4687 (statement of Sen. Patrick McNamara). 9. Id. 2014]1 Supremacies and the Southern Manifesto 1055 Constitutional law professors initially agreed that the Manifesto's denunciation of Brown marked an important development on the legal landscape. Many figures who were considered among the most distinguished legal scholars of their era-including Alexander Bickel, Charles Fairman, and Paul Freund-wrote articles in a range of publications responding to the Manifesto's core contentions.10 As late as 1962, the Manifesto and its meaning still so preoccupied Bickel that he dedicated several passages in The Least Dangerous Branch to grappling with its significance." 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 any place there at all. Following the initial flurry of activity, no law review article has appeared in more than five decades that either primarily examines the Manifesto or even subjects the document to extended analysis. Instead, within the legal literature, the Southern Manifesto invariably appears in passing, on the way to some other destination. Surveying these fleeting invocations of the Manifesto, moreover, yields the nagging suspicion that the document has been cited a good deal more frequently than it has been read. The Manifesto's marked diminution is lamentable because that document and the debate that it generated contain essential lessons for legal audiences. Examining the Manifesto does nothing less than recast dominant scholarly understandings of Brown v. Board of Education and Cooper v. Aaron,12 two Supreme Court decisions that stand among the most closely scrutinized in the nation's history. Intriguingly, the Manifesto reveals how each decision involved a different type of supremacy: the attempt to maintain white supremacy after Brown and the articulation of judicial supremacy before Cooper. The Manifesto occupies an unusually strong position for exploring these two supremacies, not in isolation, but in concert-an approach that aims to provide a less fragmented assessment of the modern American constitutional order. This Article makes two principal contributions to ongoing debates among legal scholars. First, bringing the Manifesto to center stage illuminates the sophistication of efforts taken by southern senators and congressmen to preserve white supremacy in the form of racially segregated schools during the immediate post-Brown era. Law professors have 10. See, e.g., Alexander M. Bickel, Ninety-Six Congressmen Versus the Nine Justices, NEW REPUBLIC, Apr. 23, 1956, at 11; Charles Fairman, The Supreme Court, 1955 Term-Foreword: The Attack on the Segregation Cases, 70 HARV. L. REV. 83 (1956); Paul A. Freund, Editorial, Understandingthe School Decision, CHRISTIAN SC. MONITOR, Mar. 26, 1956, at 18. 11. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME
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