A Word on Words; 2444; Judge A. Leon Higgenbotham, Jr.

no word on where the program building in the world of books and their authors this week judge innately oddly enough and jr talks about chasing freedom in your house for a word on words mr jon seaton dollar chairman of the freedom forum's first amendment center at vanderbilt university hello welcome once again to our own words it's a great honor and pleasure and i was alienated mother who judging mother's world war on words delighted to be here well we're talking about shades of freedom your new book just out it's a book that i find fascinating because it deals with a son the obvious you deal with the worst son the problems on our society and since it became a society while it deals aluminum very it makes the subtle obvious it seemed to me and it does so in a way that lawyers and judges would appreciate but beyond that it does in a way that ordinary people can

understand in particular talking about what it's like to be on the story is racial politics and the presumption in the american league with the mouth body what it really gets down to this our country deal with all the aspects of racism voice seems to me you're right particularly about the myth of inferiority was totaled about where that myth at its roots while hector recreated because then the united states and in the colonies only one of individuals were slaves and those were non whites and when you went over the english wall of the first justification of slavery oh was that all of these people were infidels and they did not accept your

religion and since they did not accept a religion you can treat them differently than anyone else but now they start to bring in thousands and hundreds of thousands of individuals and how do you justify mistreatment ahead to be a rational and the rationale was that they're inferior and now that they're in fear and you can treat them differently and then if you argue inferiority and off you can become heroic because you're trying to civilize that what people were not brought here to the united states to the trouble is to be civilized and they were brought because thomas jefferson james madison george washington wanted free labor but the presumption of inferiority was the beginnings of slavery and the presumption continued a long after slavery was abolished by the thirteenth fourteenth and fifteenth amendment

you know you talk about about that that that the fact that at the beginning you dealing with a pagan population and therefore was right and slept very early on that was said that we know are a problem because those slaves embrace christianity and enter other inner other inclusive and go and ways to make difficult to make that argument and i suppose i suppose a savings old men meant that this religion was conveyed to the slaves and then the slaves had been documented that they had had to be labeled as inferior because there are some christians after all would judge to be inferior and those were likely to fall apart then virginia they

passed this statute are almost sixteen was sixty at all and in that statute the issue was what want be free by reason of their becoming a christian son sixteen sixty seven was looking through their legislatures where some doubts over risen was a shoulder and the other slaves by birth and by the charge in petty of their owners may partake years of the boston suburb of baptism should by virtue of about tourism be made free and that was a challenge and what does the colonial some way do they say it is an act of the baptism does not all of the condition of the persons as jews bonded to freedom and then they go on to conclude last just freed from this bell damore pilfered public christianity by permitting slaves jupiter that's outrageous old but not the body and that's from our caller which was your book

published nine civic that our shades of freedom really sort of a deal so it seems to me that that putin in your methodology here is to deal with the myth of injury are again will a preset end and chronologically traced it through its life and and chronologically side how the law a bill or failed to deal with it in a way that brought justice how did you come to the conclusion that tracking that chronological tracking we begin with the precept of inferiority and and and then move to other better off all want to solve the problem was there have been so many of the incidental references which was not in any theme out of fashion when i wanted to do

was to look at every appellate place ever published and say what would be the common denominator years and these cases and when you lock them then it became clear that there were strange which were most important the first was a presumption of inferiority and when you do that you can treat people different the second was to make people property and the third was to make the perilous and the the sequel live up to these still existed long after slavery let me just give you one example and at ninety six we thought that the dream had come true the third day the moment of impersonating sixty five to abolish slavery the fourteenth and eighteen to sixty eight in the fifteenth and eighteen seventy and it had gotten along with those three constitutional amendment for five

fundamental civil rights act and charles sumner of the great senator from massachusetts said that here after year after the nomination there will be no such word as white or by the police of this and at ninety six united states supreme court happens a clear choice and to which direction to go in the issue was whether a person could be segregated on a train and whether that was abolished in the fourteenth amendment and counsel for plus he adds that if you allow the state to segregate on the basis of race or that they could separate i'm segregated on the basis of hair color or were the ones jew or gentile or whether one is part of our italian by majority and

therefore if you permit this intrusiveness they're just no limits to the state and justice brown writes an opinion of plessy v ferguson and he says the test is reasonable it's about a reasonable as a matter of course you can't separate one's from reddit by result mostly meant you can't separate battalions from irish protestants from catholics country but you could separate points and they all right rationale which would get reasonable this is all a presumption of inferiority that you can treat them differently than you treat everyone else you call laugh in shades of freedom one of the two worst opinions every move by the supreme court that scott being the other you also a great tribute floor author of the book of the stinging compelling to since

john marshall on our fast rate to see you deal with up with some of his critics who take some of his words in other cases and so to turn them against him as if as if he were on as if there were a trace of a segregationist in him but you say he must be looked at in the light of his contemporaries and in his views and that might really summer a shining beacon for what a lot of them you know i guess it would be like today comparing a stagecoach driver with an astronaut now i'm certain that someone will look at the trajectory of astronauts fifty years ago there will be some critiques he was so far ahead of the start and compared to

his other justices but it is not clear that he was the head of the stop he was right now that are typically it involves i recognize in one of these hundreds of flight that visible right when i'm african american writes a book on the american racial situation are there might be some presumptions that he proceeds from bases of blogs i don't think any more than others but what's acceptable how do i say that hollande was ready for years ago and casey versus planned parenthood which was a place which involves abortion rights and whether roe v wade should be continue to reverse the three moderate justices on the court justice souter and justice kennedy and justice o'connor when talking about the whole

issue of president they looked at closely at these other words in a city plessy was raul the day it was decided and law school professors well friends like they're well as target of all of those we've been saying that for years but these are three supreme court justices not say that round it wasn't necessary modifications of course to pursue his role the day was solemn and it is so i can't explain to you why the justices are accepting presumptive inferiority and says i'm in the great state of tennessee tennessee's kentucky so i think that there are a couple of very very significant aspect which i touch or will that just as holland road the only dissent and there were seven other justices in the case among those in the

majority were justices brown we're going to both harvard and yale law school the chief justice who had gone to harvard law school to sheriffs trujillo was a great political risk so that four of the votes in the majority came from ivy league schools and the fascinating point is that if the four justices from the ivy league schools he had then as winds that as sound as harlan a what this pennsylvania law school we would never have closely we would not have had the nightmare oh which triggered which is taken just millions of hours of billions of dollars to try to correct a situation which never sicker you reduce your you write about seems to me that that that that there are segments of the hook that that that sort of

harkens us back to learn realization the law is so closely tied to politics and legal decisions sometimes although justices are supposed to be isolated and insulated politics politics still comes the buyer and in that second when a segment in which a deal the politics of inferiority that really comes through all spinning thinking it's it's virtually impossible it seems to me to take the politics of the time and remove it from the administration of justice in practice the wall and from jurisprudence on less there are people

like our own who have the courage to make the decisions in the face of political winds and low farce the firm and politics are important on and made some poor kids have never have to not stop in at ninety six let me talk about nineteen eighty to nineteen ninety two when we get the same constitution the same thirty the moment fourteen fifteen to call for a nineteen eighty to nineteen ninety two president reagan and bush appointed more than fifty federal judges and this the sixth circuit kentucky tennessee michigan or one of the fifty two not one was an african american to the contrary carter had appointed to damon please support of appeals major obstacle of appeals others disagree generation of

politics have found them now if one wants to look at the united states court of appeals appointment struck a nation that same time period reagan and bush appointed one hundred and fifteen judges to the court of appeals for the hundred and fifteen only two are african american of the two one with clarence thomas and the other was like good for years by a judge but my disability and age and everyone knew he was going to retire four years the federal court structure has been profoundly shaped by the twelve year period went practically no african a market report it was a relatively few to just record i don't watch but on ohio or the circuit with

a lot of new york a new york constance baker motley get a great moriarty but meredith case and we have are pictures you do all shitty it was an active judge robert carter would there were a record of the brown case was an active judge of the southern district of new york or it appears and mary johnson well and when they went on senior judge status not one was in place now the only way you can justify this is a concept of racial politics and it's a racial politics which either says we will intentionally next clue which i think it was hard to give them the benefit of the doubt they will set a pluralism is not important so long as white males and the predominant positions and it's not significant about what you do in terms of african americans latinos and others when you sound to

write a book on a subject which clearly deals was what has been throughout our history the core problem obviously you bring to a current day a sense of history but also it requires i would think of research far beyond your own experience or knowledge how many uses of the program that deals among other things with how writers write with fourteen how do you overcome the obstacle of research and you have you have written volumes on a judge still found time to do the research and thought the writing was important enough to take what obviously was an enormous amount of time gathering information and data

would you have to make it yours eliminate some things which lots of people do i did most of my writing on weekends and i would say that in the course of fifty two weekends forty eight maybe forty nine i wrote and i wrote between eight to sixteen hours all anyone who wants to really understand the landscape cannot do it the way novelist what it seems to me there's a social scientist you have to be able to cite statutes place is a tough problem and the reason why i think in the matter fellow one of several national awards and won the mark and bar associations of delaware is that there is no easy mechanism if you wanted to find out what was happening in the colonial period so though people talk about my great methodology like

methodology was going to the library of congress are having the problem of what was there and taking phone records of georgia and flipping the page by page and it was only by doing that that i found out a whole host of things an example and georgia that was a statute which said that if you captive slave south over certain river and killed the slave you would get a reward if you brought back both ears in the scale you know you would not be able to pick that up by re zone case change now you have to recognize a start on his thirty three years ago and they're now on the technology i think that it will be possible for the next few years to take all the cold records get them on this and to skip them and then they get

sick then disease and fascinating and fascinatingly in shades of green to read that anecdote about about the scalpel years and realized there was another at another section level all that dealt with if you bring the body if you bring a live body there also with the war if you bring the body but i was yeah garbage a reporter for about twenty years at this point rationale course was the bring back aline no going back your hand if you're bringing back the tears in the scout says there's a profound intimidation or war as you go through a lot of tears you'll see that what they would do is that they would that's all the slaves to come around and see the hedge which had been decapitated get

our empire but that was not to increase your willingness to run away with it that this system was was very very sophisticated and the euros little well during this period i think in a pretty effective fashion you're dedicated we need to do research good to work to this whole idea of finding was at one point was called the ten commandments of slavery which went through to look through trends formations of ours called the ten precepts what talk a little bit about and that's so generic your woke up after i had read literally thousands of cases and i've taught in this field and twenty four years about at the stage where i'm trying to get the formulation

by force formulation which was published all what it was like to the heart i called it the ten commandments of slavery and it would be val show presume what are inferior and thou show presumed that whites or superior and thou show probably that idea and so it went through with our show make slaves powers thou shall do all of these more gross rhetorical flair you could almost see the eyeballs know that right but the problem of the original formulation was that walt whitman was eighteen i thought that it could cause a song unnecessarily critiques <unk> well some people say we are talking as if the ten commandments as if god hadn't doubt that god would not for a

whole variety of reasons so therefore going through a whole series of foreign relations and once one time i called it ten principles of non rights and countries of the declaration of independence but i use the word preset because hopefully i won't get involved on a whole series of theological debates is that biden was using biblical doctrine and i hope that when you see that the children could be sold and taken away from your wife when you see that people had no right of marriage when you see that it was a crime to teach someone oh how to read and write that that has a compelling our courts which goes beyond the rhetorical phrase using the commitments you have in america well and you have in shades of freedom given a big winners i think unique

glimpses beyond that and brought this is of the past you're someone who has been part of what has made the lozenges the president is different knowing as many of our viewers will of your letter of challenge to justice thomas to become the natural successor to florida thurgood marshall mccourt and knowing because my wife an hour one night so replay on c span of your analysis of his son of justice thomas's performance what if you'd talk a little bit about what i hope will be a future vocally and higginbotham and that is a projection of where the law and it will take years mr pollack which would have to deal in the future with the us continuing compelling

memories while bob hope that my next book the detection total freedom of the ice that a lot of time in in the book titled the first book was called in the matter of coal and the better color would you read it is really midnight it's the darkness with no moon and no hope and that is not this world without the thirteen fourteen fifteen the moment when we have told paul we have michael jordan why do you have all of these heroic figures and then you have all all forty to eighty percent of the teenagers american cities don't have a job can't get a job jobs are available so this book is for shades of freedom and shades of freedom we the vault as if it's gone but what's troubling

leon higginbotham jr author of shades of freedom has been our guest on a word on words your host has been john sigala chairman of the freedom forum's first amendment center at vanderbilt university this program was produced in the studios of wbez in nashville