On March 12, 1956, the majority of Southern senators and congressmen joined forces in Washington, D.C., to publicize the “Declaration of Constitutional Principles.” Now known by its more evocative label, the “Southern Manifesto,” this statement denounced the Supreme Court's unanimous decision in Brown vs. Board of Education, which two years earlier had invalidated racial segregation in public schools.
The nation will not celebrate Saturday's 60th anniversary of the Southern Manifesto as it does civil rights victories — and for good reason. But we should not permit this crucial date to pass unacknowledged, because doing so invites the comforting delusion that the mind-set supporting the manifesto has been banished from polite society. Although the Southern Manifesto may seem utterly disconnected from current racial realities, arguments marshaled by its drafters presaged recent developments in the Supreme Court's constitutional doctrine.
To the extent that the manifesto is considered at all today, it is viewed as a furious tirade that peddled the crudest sort of racism in an effort to galvanize segregationist sentiment among white Southerners. The reality of the manifesto, however, complicates this disfiguringly broad portrayal, revealing that the South's congressional delegation was capable of advancing subtle, carefully calibrated legal arguments that were designed to rally national support to its cause.
Rather than invoke incendiary racial rhetoric typically used by even the most refined proponents of segregation, the document consists mainly of measured legal arguments contending that the Supreme Court erred in Brown. That opinion, the manifesto insisted, contravened the Constitution's text (which does not mention education), principles of federalism, the original understanding of the 14th Amendment's Equal Protection Clause, and a series of long-standing judicial precedents permitting segregated schools. The manifesto's strong legal emphasis should hardly be surprising, as it was drafted primarily by well-educated lawyers — including Sen. Sam Ervin of North Carolina, a graduate of Harvard Law School, and Sen. John Stennis of Mississippi, who received his law degree from the University of Virginia.
Ervin, Stennis and the other manifesto drafters avoided naked appeals to racial bigotry not least because that would alienate the document's intended audience: white Northerners. As numerous manifesto backers explained, the document was designed to transmit Southern opposition to Brown directly to citizens outside the old Confederacy. Accordingly, the manifesto was excerpted and reprinted in newspapers around the country, including this one.
Black leaders — including A. Philip Randolph of the Brotherhood of Sleeping Car Porters — subsequently observed with deep regret that the manifesto appeared to have proven effective in diminishing the North's appetite for integration.
Although the manifesto's drafters certainly failed to achieve their primary objective of motivating the Supreme Court to reverse Brown, they largely succeeded in realizing their secondary aim: minimizing the reach of the court's historic decision.
Ervin's comments to the press upon the manifesto's publication vividly display this latter consideration. “While the Supreme Court decision is deplorable from the standpoint of constitutional law and ought to be reversed for that reason,” Ervin stated, “it is not as drastic as many people think.”
What was the “drastic” reading of Brown that he sought to avert? Ervin and his like-minded colleagues insisted that, even though Brown prohibited state-sanctioned school segregation, the opinion should not be viewed as requiring public school districts to take affirmative steps to achieve integration.
This interpretation aimed to fill the void created by the court's notoriously vague remedial opinion from 1955 that ordered desegregation to unfold “with all deliberate speed.”
In the 1960s, when it became clear that the Supreme Court would not reverse Brown, Southern Manifesto signatories shifted strategies from condemning the opinion to embracing their neutered version of it. They contended that Brown, properly understood, actually mandated “colorblind” policies. Under this theory, Brown forbade districts from even voluntarily striving for meaningful integration if they considered the race of individual students in pursuing that goal.
Today, this anemic reading of Brown is the law of the land. In 2007, the Supreme Court in a 5-4 decision invalidated school integration programs in Louisville, Ky., and Seattle. Although both programs enjoyed broad local support, the court reasoned that taking students' race into account to promote school integration nevertheless violated the Equal Protection Clause.
In striking down those programs, Chief Justice John G. Roberts Jr. reached for Brown's mantle, writing: “Before Brown, school children were told where they could and could not go to school based on the color of their skin.” For Roberts, the same principle that once required the invalidation of intentionally segregated schools now required the invalidation of intentionally integrated schools.
Rather than view the Southern Manifesto as the last gasp of a dying regime, it may be more accurate to understand it as the first breath of the prevailing order.
Justin Driver, a professor of law at the University of Chicago, is the author of "Supremacies and the Southern Manifesto," which appeared in the Texas Law Review.