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Speaker 1: Pushkin.

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Speaker 2: We come then to the question presented, does segregation of

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Speaker 2: children in public schools solely on the basis of race,

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Speaker 2: even though the physical facilities and other tangible factors may

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Speaker 2: be equal, deprive the children of the minority group of

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Speaker 2: equal educational opportunities.

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Speaker 1: I'm having flashbacks. So okay, what are we listening to?

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Speaker 1: Why are we here for this very special day?

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Speaker 3: So May seventeenth, seventieth, the anniversary of Brown v. Board

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Speaker 3: of Education, Chief Justice Earl Warren hands down the opinion

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Speaker 3: in the momentous series of consolidated school segregation cases in

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Speaker 3: which the Supreme Court declared segregation on constitutional a violation

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Speaker 3: of the fourteenth Amendment. The crazy thing is we are

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Speaker 3: listening to not the actual opinion issued by Earl Warren,

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Speaker 3: because these cases were not recorded, were just on the edge,

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Speaker 3: just on the eve of the Supreme Court instituting the

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Speaker 3: practice of recording oral arguments. So the OYA project, which

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Speaker 3: is I love, is a project started by this guy,

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Speaker 3: Jerry Goldman, a political scientist, hero of evidence and justice,

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Speaker 3: who decided to make available to kind of research and

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Speaker 3: pull together all of the audio of all the Supreme

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Speaker 3: Court opinions and oral arguments where those existed as recordings.

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Speaker 3: It's all free and online at the OYA Project. It's

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Speaker 3: this amazing resource. I use it all the time. I

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Speaker 3: now never just go read Spreme Court opinion. I go

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Speaker 3: listen to the oral arguments because of.

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Speaker 1: The day A consummates.

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Speaker 3: Yeah, they're great. Like, it's an incredible thing that the

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Speaker 3: OYA Project exists, and it's really hugely meaningful historical record.

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Speaker 3: So Jerry Goldman got really interested in what it meant

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Speaker 3: that there's an absence of a record for Brown v.

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Speaker 3: Board of Education, because it's so important, and because we

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Speaker 3: also have the voices of the main participants. Earl Warren

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Speaker 3: had been governor of California. The we have plenty of

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Speaker 3: recordings of Earl Warren's voice before he was appointed to

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Speaker 3: the court by Eisenhower, after he was on the court.

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Speaker 3: But what we were just listening to was not the

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Speaker 3: opinion issued by Earl Warren, but a recreation of Earl

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Speaker 3: Warren's voice that is driven by a kind of really

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Speaker 3: interesting and surely increasingly common recreation of the transcript voice

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Speaker 3: actors reading the transcript and giving it emotional inflection and

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Speaker 3: pacing and tone, and then an ai recreated voice kind

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Speaker 3: of overlaid onto that.

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Speaker 1: Like a mask I think is the term they use,

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Speaker 1: that it's the sort of performance within a mask on it.

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Speaker 1: I love that. It's very Batman and so I guess

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Speaker 1: there's a number of reasons why it feels so right

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Speaker 1: to celebrate this anniversary on the Last Archive today. One

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Speaker 1: is that we are inveterate reenactors of trials, sometimes hits,

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Speaker 1: sometimes misses. And then another is that Brown verse Board

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Speaker 1: of Education is really central to the inquiry of the show.

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Speaker 1: So much of the sort of epistemological backlash of the

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Speaker 1: twentieth century, at least the bad faith backlash is a

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Speaker 1: response to Brown and all these themes of brainwashing and

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Speaker 1: the kind of different cultures of knowledge emerging after the

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Speaker 1: mid twentieth century. It feels like it all comes out

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Speaker 1: of this this moment which a lot builds up to.

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Speaker 4: Well.

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Speaker 1: And then of course the third reason is just artificial

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Speaker 1: intelligence and how you know what you know? So it's

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Speaker 1: this very yeah, last archivy combination of things.

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Speaker 3: So you will remember Ben that for the Last Archive.

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Speaker 1: Second season second with the Scopes tra Yeah, yeah.

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Speaker 3: So the Scopes Trial in nineteen twenty five somewhat similar

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Speaker 3: to the Brown case in that it was recorded and

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Speaker 3: was the first criminal trial ever broadcast on the radio.

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Speaker 3: It was broadcast nationwide. It was a huge phenomen People

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Speaker 3: sat around and listened to the Scopes trial, but none

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Speaker 3: of the radio broadcast was recorded, devastating. So like it is,

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Speaker 3: it is actually really interesting to think about it as

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Speaker 3: a listening experience because that's how people experienced it, and

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Speaker 3: yet we clen't recapture that. And so similarly, like Clarence Darrow,

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Speaker 3: like we have the William Jennings Bryan, the two attorneys

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Speaker 3: who argued the case. We have their voices. Their voices

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Speaker 3: are recorded, we know what they sounded like. So we,

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Speaker 3: without any ethical hesitation whatsoever, wide and recreated the Scopes trial.

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Speaker 1: With actors via zoom because it was the early days

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Speaker 1: of the pandemic. So we were one step closer to

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Speaker 1: a fully artificially intelligent voice acting experience.

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Speaker 3: So you know, we never I can't recall us ever

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Speaker 3: having conversations reason not to do that. I mean, anyway,

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Speaker 3: inherit the wind already exists and people think, so.

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Speaker 1: Okay, no, but this I think is that is a

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Speaker 1: crucial I think the inherit the wind thing is a

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Speaker 1: crucial point because to me, there's this ipe craze in Hollywood.

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Speaker 1: People are increasingly making films based on real events. There's

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Speaker 1: a kind of historical acting style that emerges when people

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Speaker 1: have a lot of access to audio visual material, and

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Speaker 1: it's exemplified by something like Bradley Cooper and Maestro performing

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Speaker 1: as Leonard Bernstein, where you know famously he spent like

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Speaker 1: years studying film of his conducting style so he could

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Speaker 1: like perfectly do the movements. To me, it that turns

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Speaker 1: out to be something more like mimicry than real acting

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Speaker 1: or sort of real dramatic interpretation, something like Inherit the Wind,

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Speaker 1: we should say, the famous nineteen sixty film re enacting

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Speaker 1: the Scopes Trial starring an amazing Spencer Tracy. It bears

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Speaker 1: almost no resemblance.

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Speaker 3: To the actual history, right, totally free rate.

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Speaker 1: But it's totally transporting.

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Speaker 3: Yeah, I know it's interesting, but I think too one

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Speaker 3: of the things that differentiates say, Inherit the Wind from

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Speaker 3: Maestro is Inherit the Wind maybe like a performance of

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Speaker 3: the Crucible, right, very much an updating of the story

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Speaker 3: for our own times. Right, it isn't about a kind

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Speaker 3: of backward looking Oh, let's transport ourselves to nineteen twenty

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Speaker 3: five and be in the Scopes trial. It's let's offer

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Speaker 3: up a moral fable that can help us understand McCarthyism. Right,

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Speaker 3: It's not about emulation, it's about adaptation, which has this

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Speaker 3: weird analog and constitutional interpretation, right, like do we look

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Speaker 3: backward at what the frame of the Constitution or the

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Speaker 3: fourteenth Amendment meant and intended and what they understood by

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Speaker 3: the words that they said, or do we adapt those

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Speaker 3: things for our own time. So that's what's the sort

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Speaker 3: of weird free selling around, like, oh, it's cool to

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Speaker 3: use these technologies to look backward, but also for what purposes?

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Speaker 1: Well, this also it's sort of presented as a podcast.

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Speaker 1: The narrator her name is Karen Grigsby Bates. She's from

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Speaker 1: NPR both independently. Had sense that she sounds like a

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Speaker 1: young Nina Totenberg.

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Speaker 3: Let's pause here for a quick explanation of what you're hearing.

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Speaker 3: No microphones were recording Warren's words that day in nineteen

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Speaker 3: fifty four. I just feel so taken care of.

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Speaker 1: I would believe anything that was told me.

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Speaker 3: It's good to tell me. So this is why I

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Speaker 3: have come out of my sabbatical to record a one

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Speaker 3: off episode of the Last Art Time with you, just

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Speaker 3: to think about how interesting this is. It really does

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Speaker 3: raise all kinds of questions for historical research and history

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Speaker 3: storytelling too, that I know, we you know, won't have

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Speaker 3: time to get into. But I decided I would try

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Speaker 3: to find out whether one of the voices at least

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Speaker 3: is accurate. But I wrote to four people I know

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Speaker 3: who were martial clerks, and I asked them to listen

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Speaker 3: to the recreated martial voice, and three of them said

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Speaker 3: more or less the same thing, which was that Marshall

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Speaker 3: famously could speak in many different voices, that he had

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Speaker 3: different accents that he could put on. I mean, he

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Speaker 3: grew up in Baltimore, but he had worked as a

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Speaker 3: pullman porter, you know, when he went and argued cases

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Speaker 3: in the South, he kind of deliberately sounded a little

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Speaker 3: bit more like a Southerner. But in a court room,

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Speaker 3: and certainly in the Supreme Court, he spoke in impeccable

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Speaker 3: enunciated Queen's English. Martha Minno told me that people come

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Speaker 3: from miles around just to hear a third good Marshall

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Speaker 3: argue in court, just because of the nature of the performance.

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Speaker 3: But you know, Harry Littman, who was also a Marshall clerk,

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Speaker 3: who's the host of the amazing podcast Talking Feds that

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Speaker 3: I'm obsessed with, he heard the recreated Marshal voice as

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Speaker 3: something of like something of a mashup of Marshall's many

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Speaker 3: different speaking styles. Cas Sunstein told me, you know, that

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Speaker 3: sounds a bit like when I knew him, but I'm

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Speaker 3: not super close. And then Randy Kennedy, a law school

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Speaker 3: professor at Harvard as well and a former Marshall clerk, said,

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Speaker 3: if you had not told me that the voice was

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Speaker 3: AI generated out of sworn that it was the real

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Speaker 3: third Good Marshal.

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Speaker 1: Something that's interesting to me though about this. I love

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Speaker 1: hearing the reports of people who actually knew him, but

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Speaker 1: it also foregrounds for me this kind of maybe naive

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Speaker 1: to say, but incredible to me, fact that Brown resportive

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Speaker 1: education as a ruling well within the span of a

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Speaker 1: human lifetime. I mean, this is the seventieth anniversary, but

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Speaker 1: you're actually going to talk to a scholar, Kenneth Mack

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Speaker 1: from Harvard Law School who studies round resportive education now

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Speaker 1: about the significance of the case.

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Speaker 3: Yeah, So, Ken, this amazing. He is just an incredibly

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Speaker 3: astute constitutional analyst, but he's also a legal historian, and

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Speaker 3: he's wrote this really amazing book on civil rights lawyering

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Speaker 3: and what it means to sort of try to represent

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Speaker 3: a race. So I wrote to Kenna say, like, this

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Speaker 3: is this crazy brown thing is coming out? What do

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Speaker 3: you make of it?

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Speaker 5: Hi?

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Speaker 4: Ken?

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Speaker 3: Hey, how are you good?

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Speaker 6: Good?

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Speaker 4: Good?

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Speaker 3: Thank you so much for doing this. I will confess

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Speaker 3: I'm completely fascinated by this project of trying to recreate

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Speaker 3: the entire audio landscape of Brown v. Board of Education.

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Speaker 3: So I wanted to ask you a little bit first though,

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Speaker 3: what the NAACP's legal strategy was here.

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Speaker 6: Okay, all right, So the background for Brown versus the

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Speaker 6: Board of Education. The NAACP is the principal of civil

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Speaker 6: rights organization in the United States. Found in the early

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Speaker 6: twentieth century. By the nineteen thirties, the NAACP it began

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Speaker 6: to focus some of its energies on school desegregation. The

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Speaker 6: attack on segregated schools was led by two lawyers, one

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Speaker 6: of which was Thurgood Marshall, who had eventually become the

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Speaker 6: first black Supreme Court justice, and the other of which

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Speaker 6: was Charles Hamilton Houston, who was a black Harvard Law

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Speaker 6: School graduate. So the two of them began filing cases

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Speaker 6: in the nineteen thirties about schools, but most of them

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Speaker 6: were school equalization cases. So you've got a black school

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Speaker 6: in which the teachers are paid X at a white

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Speaker 6: school in which the teachers are paid Y. So we

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Speaker 6: followed suit to try to get the teachers paid equally.

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Speaker 6: There are a number of cases they bring that are

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Speaker 6: about primary secondary schools. Okay, we want equal salaries for

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Speaker 6: Blackack and white teachers or equal facilities for black and

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Speaker 6: white schools within the system of segregation. But there are

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Speaker 6: a bunch of university cases. The NACP challenges Missouri's practice

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Speaker 6: of excluding black people from its law school. You know,

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Speaker 6: there is no black law school and the white law

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Speaker 6: school is whites only. So the NACP brings a case saying, okay,

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Speaker 6: well there's no black law school, we should bit black

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Speaker 6: people to the white law school. And Supreme Court decides

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Speaker 6: in favor of the NAACP in that case.

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Speaker 3: Which because there's no question, there's no question of equality

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Speaker 3: when there's an absence.

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Speaker 6: Yeah, yeah, So the it's still within separate but equal, right,

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Speaker 6: because theoretically, if you built a black law school in Missouri,

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Speaker 6: you know, that would be okay within separate but equal,

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Speaker 6: But there is no black law school. In fact, to

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Speaker 6: build a black law school would be fantastically defensive. So

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Speaker 6: the logic of the case is actually an attack on separate

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Speaker 6: but equal, because you know, you can't build separate everything,

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Speaker 6: right law schools, dental schools, et cetera, et cetera. And

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Speaker 6: so that begins to set the stage for the cases

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Speaker 6: that would become brown versus more of education.

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Speaker 3: So one of the things I love about these cases

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Speaker 3: is there's so much human drama. You know, Robert Jackson

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Speaker 3: has a heart attack, Fred Vinson just up and dies.

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Speaker 3: You know, the court changes, the cases argued more than once.

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Speaker 3: You know, there's like the drama of the day itself.

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Speaker 3: May seventeenth, nineteen fifty four, and the kind of you

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Speaker 3: get this real sense the country is on the edge

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Speaker 3: of its seat about the case at that point. But

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Speaker 3: then you know this from the historians point of view,

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Speaker 3: it's quite frustrating that none of this was recorded, and

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Speaker 3: it's just on the edge of when the court begins

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Speaker 3: recording its proceedings. So one of the things that I

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Speaker 3: think is really interesting about this OIA project attempts to

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Speaker 3: recreate the audio of it all, is can that sense

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Speaker 3: of human drama be captured with like artificially intelligent driven

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Speaker 3: recreation of voices. Let's listen to a little clip of

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Speaker 3: one of the recreated scenes, and then I don't kind

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Speaker 3: of want to hear your reaction to it. I think

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Speaker 3: this is from Spotswood Robinson arguing in the court.

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Speaker 5: I think it is very clear that the frame was

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Speaker 5: intended to destroy the black Codes. I think it is

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Speaker 5: clear that they intended to deprive the states of all

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Speaker 5: power to enact similar laws in the future. I think

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Speaker 5: the evidence overall is clear that it was contemplated and

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Speaker 5: understood that the state would not be permitted to use

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Speaker 5: its power to maintain a class or caste system based

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Speaker 5: upon race or color, and that the Fourteenth Amendment would

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Speaker 5: operate as a prohibition against the imposition of any racial

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Speaker 5: classification in respect of civil rights.

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Speaker 3: So, yeah, what's your reaction to that.

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Speaker 6: Well, it's a lot of fun to hear to pretend

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Speaker 6: ones hearing spots with Robinson. You know, he's from Virginia.

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Speaker 6: It sort of sounds like what he would sound like.

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Speaker 6: Maybe although I never met him, so I don't really know.

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Speaker 6: To me, it's like listening to a movie traumatization, like

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Speaker 6: this is not Spotswood Robinson, but maybe you get a

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Speaker 6: sense of what it might have been like to have

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Speaker 6: heard him.

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Speaker 7: Yeah.

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Speaker 3: Yeah, there's a kind of combination of an actor underlay

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Speaker 3: and then some ai overlay in these voices. But thinking

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Speaker 3: about I'd love to hear more about what it meant

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Speaker 3: for someone like Robinson to do the work of lawyering.

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Speaker 3: Is there something about how you would imagine hearing that

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Speaker 3: or the way that that would come across in an argument.

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Speaker 3: I guess, like I'm not sure. It kind of gets

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Speaker 3: me there, that voice, right, Like there's something about the

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Speaker 3: the stakes.

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Speaker 6: Yeah, it's it's it's every time these black lawyers go

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Speaker 6: to court in these civil rights cases, there's a lot

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Speaker 6: of drama just from the from the basic trial court

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Speaker 6: to the Supreme Court because in every case, you know,

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Speaker 6: in these courtrooms, there's never been a black person to

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Speaker 6: do this kind of thing. There are very few black lawyers.

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Speaker 6: If their good marshall goes to court in Virginia or

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Speaker 6: somewhere else in the South, nobody's ever seen a black lawyer.

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Speaker 6: Usually and nobody's seen a black layer talk to white

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Speaker 6: people the way that Thirgod Marshal gets to talk to

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Speaker 6: white people in court. But at the same time, you know,

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Speaker 6: there's a bunch of cases where Marshall's not sure if

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Speaker 6: he's going to be lynched for coming to court, and

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Speaker 6: in one case he almost is lynched and it's just

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Speaker 6: saved by one of his colleagues. So there's things like

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Speaker 6: that you just can't reconstruct, right, just the drama of

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Speaker 6: that moment.

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Speaker 3: Yeah, let's listen to Marshall for a minute. What I

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Speaker 3: want to do is play this Ai Marshall, and then

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Speaker 3: we can listen to actual Marshal from the same year,

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Speaker 3: from fifty four, and see what you think.

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Speaker 8: There is nothing in the debates that will hint in

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Speaker 8: the slightest that they did not mean complete equality. They

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Speaker 8: said so to raise the Negro up into the status

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Speaker 8: of complete equality with the other people. That is the

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Speaker 8: language they used. Substantial as a word. It was put

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Speaker 8: into the fourteenth Amendment by Plessy versus Furguson, and I

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Speaker 8: cannot find it, and it cannot be found in any

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Speaker 8: place in the debates.

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Speaker 3: Okay, can we listen to the actual Marshal from the

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Speaker 3: same period.

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Speaker 4: Despite the progress that's been made in twenty years, despite

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Speaker 4: the fondest hopes of a lot of people, we have

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Speaker 4: got before us a job for the future, and it's

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Speaker 4: not the type of job that can be solved solely

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Speaker 4: by government. It's a type of job that has to

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Speaker 4: be solved by individuals working on individuals.

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Speaker 3: I don't know, what do you think.

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Speaker 6: It's so striking that the two they don't quite sound alike.

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Speaker 6: They're similar, but also like, I know what Marshall sounded

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Speaker 6: like later in life. I didn't meet him, but he's

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Speaker 6: more gravely, like yeah, yeah, his voice is deeper later

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Speaker 6: in life. He his accent changes. So that's the other

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Speaker 6: thing you just can't capture. You don't know what he

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Speaker 6: sounded like in court because everybody said that when he

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Speaker 6: was in when he was in the South, he would

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Speaker 6: get a real Southern accent. Now when he's in a

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Speaker 6: Supreme court, he probably doesn't.

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Speaker 3: Yeah, but we don't.

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Speaker 6: Actually know that he's arguing with John W. Davis, you

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Speaker 6: know who knows. Yeah, So we can't capture that yeah aspect.

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Speaker 3: Yeah, like he just was like a consummate code switcher,

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Speaker 3: which I guess We're not surprising when you think about

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Speaker 3: the kind of roles that he was playing, as you say,

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Speaker 3: and also traveling and speaking into different audiences.

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Speaker 1: We'll be back with more in just a minute.

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Speaker 3: I kind of want to go back to the case

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Speaker 3: itself and think about how close was Brown to being

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Speaker 3: decided differently.

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Speaker 6: Yeah, we don't know how close Brown was to being

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Speaker 6: decided differently. We know that the first time it was argued,

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Speaker 6: it looks like maybe four justices were in favor of

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Speaker 6: overturning school segregation, and maybe two were in favor of

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Speaker 6: affirming it, and the others, including Felix Frankfurter, we don't

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Speaker 6: really know. So there's a lot of accidents, you know,

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Speaker 6: like this is history, right, History is you know, a

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Speaker 6: bunch of things happened, and some of them are planned,

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Speaker 6: and some of them are accidents, and some of them,

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Speaker 6: you know, an accident happens and then somebody takes advantage

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Speaker 6: of it and pushes it. So our main accident, of course,

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Speaker 6: is that Chief Justice Vincent dies and Brown is re

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Speaker 6: are argued, and in the second argument, the NAACP is

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Speaker 6: a lot more aggressive also, and you know what they

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Speaker 6: ask for and the kind of claims they make about

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Speaker 6: the original understanding of the fourteenth Amendment as prohibiting school segregation.

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Speaker 6: So these are all accidents. It was, you know, the

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Speaker 6: cases themselves were often accidents in the sense that the

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Speaker 6: cases kind of evolved. You know, the South Carolina case

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Speaker 6: breaks versus delegate starts with a request for a school bus, like, Okay,

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Speaker 6: if they gave the black kids a school bus, then

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Speaker 6: maybe the whole thing would have been different.

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Speaker 3: I've been reading about, you know, that day and people's expectations,

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Speaker 3: a sort of reporter scrambling to go down to the

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Speaker 3: courthouse because finally this decision was going to be issued.

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Speaker 3: You know, it had been argued twice, it had been

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Speaker 3: in the news for a long time. The country's really

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Speaker 3: kind of on the edge of its seat about what

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Speaker 3: this decision is is going to look like. I was

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Speaker 3: reading the biography of Ethel Payne, who was the Washington

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Speaker 3: reporter for the Chicago Defender, and she had gone down

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Speaker 3: with the press and she talks about, you know, it

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Speaker 3: was noontime that the court was called into session, and

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Speaker 3: at the minute it became clear which way the decision

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Speaker 3: was going to go. When Warren got to you know,

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Speaker 3: a particular point in issuing the opinion, which he of

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Speaker 3: course read out loud that everybody the room already looked

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Speaker 3: the room to go report it. So let's hear when

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Speaker 3: he kind of gets to that point where you kind

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Speaker 3: of the reveal, where you kind of get a good

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Speaker 3: sense of how how the opinion is going to go.

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Speaker 2: In approaching this problem, we cannot turn the clock back

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Speaker 2: to eighteen sixty eight when the amendment was adopted, or

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Speaker 2: even to eighteen ninety six when plus versus Ferguson was written.

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Speaker 2: We must consider public education in the light of its

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Speaker 2: full development and its present place in American life throughout

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Speaker 2: the nation. Only in this way can it be determined

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Speaker 2: if segregation in public schools deprives these plaintiffs of the

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Speaker 2: equal protection of the laws.

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Speaker 3: What Ethel Payne talks about is that once the decision

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Speaker 3: went out on the radio, because people, the reporters who've

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Speaker 3: raced out of the room called the radio stations, you know,

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Speaker 3: call their newsrooms, that all the taxis in Washington, DC

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Speaker 3: started honking. All the taxi drivers were these black men,

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Speaker 3: and they all heard it on the radio at the

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Speaker 3: same time, and people were were like like an atomic

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Speaker 3: attack or something that they were like sirens going up.

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Speaker 3: The whole city kind of like exploded in this kind

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Speaker 3: of powerful noise, which I really love. But I'm wondering

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Speaker 3: if you just tell us, like, what is the opinion

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Speaker 3: and what's striking about it to you?

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Speaker 6: Still?

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Speaker 1: Today?

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Speaker 6: I think a few things are striking about Warren's opinion today.

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Speaker 6: I mean one is it's written in very plain language.

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Speaker 6: You know, Warren is a politician. He knows how to communicate.

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Speaker 6: It's a big deal what Supreme Court is doing, and

395
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Speaker 6: he doesn't want it to feel technical. He wants it

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Speaker 6: to feel like something that people can understand. It also

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Speaker 6: sort of avoids the issue why exactly is school segregation

398
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Speaker 6: un constitutionally? Doesn't quite tell us, and we're still really

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Speaker 6: arguing today about you know, why was it unconstitutional? So

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Speaker 6: it's the way in which it's it's smart, it's plain,

401
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Speaker 6: it's it's written by somebody who knows how to write

402
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Speaker 6: an opinion that's going to be consumed by millions of

403
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Speaker 6: Americans who don't agree on the fundamental thing that he's deciding.

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Speaker 3: And how did the country respond to it in fifty.

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Speaker 6: Four, Well, there were a number of different responses. The

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Speaker 6: initial reaction was very muted, they're they're not these grand

407
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Speaker 6: gestures of defiance. I mean there there, there would be

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Speaker 6: pretty soon. I mean once you know, Martin Luther King

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Speaker 6: comes along, you know, basically not very long after, so

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Speaker 6: pretty soon there are these kind of grand gestures of

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Speaker 6: defiance of the both of the Supreme Corps to the

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Speaker 6: prospect of integration. But but in the white South, the

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Speaker 6: initial reaction is, you know, maybe pretty mutic compared to

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Speaker 6: what we might expect it to have been from our

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Speaker 6: our vantage for many years later.

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Speaker 3: So one of the things I think about with Brown,

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Speaker 3: and this was really striking to me. Somehow listening to

418
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Speaker 3: the arguments made this more clear to me than reading them,

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Speaker 3: which was how intricately the NAACP lawyers are both insisting

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Speaker 3: on in an original intention argument about the Fourteenth Amendment,

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Speaker 3: that it had these anti slavery origins, that it was

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Speaker 3: an abolitionist idea, that it had this kind of open

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Speaker 3: ended meaning that could be construed to declare segregation unconstitutional,

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Speaker 3: in spite of the fact that all the members of

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Speaker 3: Congress who were involved in drafting the Fourteenth Amendment had

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Speaker 3: children who were going to segregated schools. Like the original

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Speaker 3: intention argument can go the other way. But they have this,

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Speaker 3: they're committed to that, but at the same time they

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Speaker 3: want to argue that original intention kind of doesn't matter,

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Speaker 3: and that really it's the social science that they're presenting.

431
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Speaker 3: This amazing, you know, this incredible. Uh so we will

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Speaker 3: call social psychology evidence about the consequences of segregation for

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Speaker 3: black children. Like they're throwing everything by way of evidence

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Speaker 3: and argument at defeating in this kind of grand sweeping way,

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Speaker 3: the very idea of separate but equal. By the time,

436
00:26:33,315 --> 00:26:36,875
Speaker 3: you know, they get to the actual second round of arguments,

437
00:26:38,435 --> 00:26:41,675
Speaker 3: and you know, looking from my point of view seventy

438
00:26:41,755 --> 00:26:46,555
Speaker 3: years on the legal arguments, that that argues not John

439
00:26:46,635 --> 00:26:49,715
Speaker 3: Davis's arguments in court in fifty three or something, but

440
00:26:49,795 --> 00:26:52,195
Speaker 3: the later legal arguments, you know, the sort of origins

441
00:26:52,195 --> 00:26:57,995
Speaker 3: of originalism case that the reaction to Brown leads a

442
00:26:58,035 --> 00:27:00,715
Speaker 3: group of scholars who would come to call themselves conservative

443
00:27:00,755 --> 00:27:05,755
Speaker 3: constitutionalists to emphasize that the original intention of the fourteenth

444
00:27:05,755 --> 00:27:08,715
Speaker 3: Amendment was never to end segregation and that therefore Brown

445
00:27:08,795 --> 00:27:11,795
Speaker 3: was wrongly decided. And you see this kind of whole

446
00:27:12,875 --> 00:27:18,075
Speaker 3: origin of some of our contemporary legal clashes around what

447
00:27:18,155 --> 00:27:20,675
Speaker 3: the Supreme Court does and how it makes its decisions.

448
00:27:22,395 --> 00:27:27,955
Speaker 3: So I'm struck listening to it at how like alive

449
00:27:28,075 --> 00:27:30,955
Speaker 3: those disputes still are.

450
00:27:31,715 --> 00:27:36,675
Speaker 6: Yeah, I think we have always argued as Americans about

451
00:27:37,315 --> 00:27:41,275
Speaker 6: are founding principles and race. Right in the nineteenth century

452
00:27:41,315 --> 00:27:44,995
Speaker 6: it was was the Constitution pro slavery or anti slavery?

453
00:27:45,075 --> 00:27:51,955
Speaker 6: You know, pitched battles over that. And since Brown, it's

454
00:27:52,075 --> 00:27:57,355
Speaker 6: you know, how to understand the Fourteenth Amendment? Do we

455
00:27:57,395 --> 00:28:02,915
Speaker 6: look at its original understanding, intention, meaning, et cetera, et cetera.

456
00:28:03,035 --> 00:28:06,715
Speaker 6: Does that matter even when we look back to eighteen

457
00:28:06,795 --> 00:28:09,675
Speaker 6: sixty eight we get different answers there? Actually is it

458
00:28:09,955 --> 00:28:14,875
Speaker 6: one answer? I mean, Supreme Court is deciding cases at

459
00:28:14,915 --> 00:28:21,475
Speaker 6: this moment that are about how to understand both the

460
00:28:22,635 --> 00:28:26,395
Speaker 6: meaning around when it was decided and the meaning of

461
00:28:26,435 --> 00:28:33,915
Speaker 6: the Fourteenth Amendment when it was framed and ratified. And

462
00:28:34,275 --> 00:28:36,715
Speaker 6: you know, we've just been arguing about that for the

463
00:28:36,835 --> 00:28:39,595
Speaker 6: last seventy years, and we could continue to argue about that.

464
00:28:42,435 --> 00:28:47,235
Speaker 3: I am really interested in the tech piece of this,

465
00:28:47,395 --> 00:28:51,915
Speaker 3: where this kind of AI voice recreation can give us

466
00:28:51,915 --> 00:28:58,915
Speaker 3: some proximate version that's maybe different than hiring actors, could

467
00:28:58,915 --> 00:29:02,195
Speaker 3: be cheaper for ordinary people to do. And since so

468
00:29:02,275 --> 00:29:07,955
Speaker 3: much of our constitutional discourse is about original intention, meaning

469
00:29:07,955 --> 00:29:13,915
Speaker 3: and understanding. So let's say someone wants to recreate the

470
00:29:13,995 --> 00:29:18,835
Speaker 3: debates of the congressional debates about the fourteenth Amendment as audio,

471
00:29:19,795 --> 00:29:23,275
Speaker 3: where the question of what did people mean when they

472
00:29:23,515 --> 00:29:28,035
Speaker 3: said these things is given a different weightiness if we're

473
00:29:28,195 --> 00:29:30,355
Speaker 3: listening to it and you're you know, the way the

474
00:29:30,435 --> 00:29:35,035
Speaker 3: AI might emphasize certain terms or recreate certain voices. Since

475
00:29:35,075 --> 00:29:40,875
Speaker 3: we care about what the framers of constitutional texts meant

476
00:29:40,875 --> 00:29:43,795
Speaker 3: when they said things, what would it mean if we

477
00:29:43,795 --> 00:29:48,635
Speaker 3: were listening to them? Would it have an effect on

478
00:29:48,715 --> 00:29:52,435
Speaker 3: how we interpret the constitution? Is there a conceivable future

479
00:29:52,475 --> 00:29:58,715
Speaker 3: in which this technology has implications for jurisprudence?

480
00:30:03,515 --> 00:30:06,635
Speaker 6: You know, it's interesting when we kind of think about

481
00:30:06,635 --> 00:30:11,835
Speaker 6: what did Brown mean when it was decided, and if

482
00:30:11,915 --> 00:30:15,595
Speaker 6: we had some form of a access AI generated to

483
00:30:16,635 --> 00:30:21,075
Speaker 6: how people spoke about it, would it help us understand

484
00:30:21,075 --> 00:30:25,035
Speaker 6: what it meant? And I guess the answer was sort

485
00:30:25,035 --> 00:30:28,595
Speaker 6: of yes and no. You know, I'm a historian, so

486
00:30:28,995 --> 00:30:32,595
Speaker 6: I always think I'm committed to figuring out how people

487
00:30:32,835 --> 00:30:35,875
Speaker 6: thought about things in the past and trying to do

488
00:30:35,955 --> 00:30:39,515
Speaker 6: that as accurately as possible. And there's a way in

489
00:30:39,515 --> 00:30:43,275
Speaker 6: which AI is both facilitates and underminds that, right, because

490
00:30:43,515 --> 00:30:48,115
Speaker 6: you know, you can't you can't reconstruct how it sounded

491
00:30:48,155 --> 00:30:51,235
Speaker 6: in the past because you weren't there. We don't have

492
00:30:51,275 --> 00:30:53,635
Speaker 6: a recording. Even if we even if we had a recording,

493
00:30:53,675 --> 00:30:55,275
Speaker 6: we don't know what it feels like to be in

494
00:30:55,315 --> 00:30:57,515
Speaker 6: the room. So there's a way in which it's it's

495
00:30:57,675 --> 00:31:01,435
Speaker 6: it's great, and there's a win which it's a pipe dream.

496
00:31:01,715 --> 00:31:03,715
Speaker 6: I mean, you're just never going to be able to

497
00:31:03,955 --> 00:31:08,155
Speaker 6: get to the past. Yeah, and we almost have to

498
00:31:08,435 --> 00:31:09,435
Speaker 6: sort of leave it there.

499
00:31:10,235 --> 00:31:14,475
Speaker 3: Yeah, no, we do, but that I think I have

500
00:31:14,555 --> 00:31:17,955
Speaker 3: this kind of completeness fantasy as a historian, and something

501
00:31:17,955 --> 00:31:20,955
Speaker 3: about this AI kind of speaks to that, like, oh

502
00:31:21,035 --> 00:31:24,395
Speaker 3: you could really you know, why did Warren write it

503
00:31:24,475 --> 00:31:26,315
Speaker 3: just that way? You can when you hear it, it would

504
00:31:26,355 --> 00:31:29,435
Speaker 3: be different, dirt, that's somehow we could get all the answers.

505
00:31:29,515 --> 00:31:35,835
Speaker 3: And but you're rational and wise and you know that's

506
00:31:35,955 --> 00:31:39,955
Speaker 3: not that that's not true. But also it shouldn't decide

507
00:31:39,955 --> 00:31:43,475
Speaker 3: for us how we live today, right, like at some level,

508
00:31:43,475 --> 00:31:46,755
Speaker 3: like that's kind of the turning point that Brown represents, Right,

509
00:31:47,395 --> 00:31:49,675
Speaker 3: even if we knew what the what the framers what

510
00:31:49,755 --> 00:31:53,315
Speaker 3: John Bingham meant when he drafted the fourteenth Amendment. Even

511
00:31:53,315 --> 00:31:56,315
Speaker 3: if we knew, we still know we should end segregation,

512
00:31:56,395 --> 00:31:58,115
Speaker 3: do you know what I mean? Like even like that,

513
00:31:58,115 --> 00:32:00,795
Speaker 3: that's the that's for me, the the kind of real

514
00:32:00,875 --> 00:32:03,555
Speaker 3: majesty of Brown is the naac's claim like, all right,

515
00:32:03,555 --> 00:32:05,875
Speaker 3: we're gonna make this argument about original intention, but it

516
00:32:05,915 --> 00:32:07,755
Speaker 3: actually what we're really going to say is this is

517
00:32:07,795 --> 00:32:12,195
Speaker 3: just wrong. And that's why I love this case. Like

518
00:32:12,235 --> 00:32:16,235
Speaker 3: that's why I love listening to Marshall and spots with'ms

519
00:32:16,275 --> 00:32:21,835
Speaker 3: and make these claims because you can hear like enough already, do.

520
00:32:21,795 --> 00:32:22,355
Speaker 1: You know what I mean?

521
00:32:23,475 --> 00:32:27,395
Speaker 6: Yeah, I mean I agree. I think that Brown was

522
00:32:27,435 --> 00:32:31,075
Speaker 6: as much about the moment it was decided as it

523
00:32:31,235 --> 00:32:34,355
Speaker 6: was about eighteen sixty eight. Like I mean, you know,

524
00:32:34,675 --> 00:32:36,555
Speaker 6: if you read about the justices, they.

525
00:32:37,075 --> 00:32:40,675
Speaker 7: Kind of understood, you know, it's the nineteen fifties. Could

526
00:32:40,755 --> 00:32:43,915
Speaker 7: we really have school segregation? This thing is kind of wrong,

527
00:32:44,515 --> 00:32:46,235
Speaker 7: But then what are we supposed to do? How were

528
00:32:46,235 --> 00:32:48,515
Speaker 7: we supposed to write an opinion? But they kind of

529
00:32:48,555 --> 00:32:50,355
Speaker 7: know intuitively, at least most of.

530
00:32:50,315 --> 00:32:57,315
Speaker 6: Them, that it seems incommensurate with nineteen fifties America to

531
00:32:57,435 --> 00:33:01,715
Speaker 6: have this and to not have any legal remedy. And

532
00:33:01,755 --> 00:33:04,235
Speaker 6: that's really what the case is about. And as you say,

533
00:33:04,315 --> 00:33:08,635
Speaker 6: the Thurgood Marshall and the NAACP lawyers they kind of

534
00:33:08,675 --> 00:33:12,595
Speaker 6: know that too. And we argue about all this technical stuff,

535
00:33:12,755 --> 00:33:16,275
Speaker 6: but really the case is about now, as in the

536
00:33:16,355 --> 00:33:19,875
Speaker 6: nineteen fifties for Brown. Yeah, but we argue about it.

537
00:33:19,875 --> 00:33:24,955
Speaker 6: It's always about now. We pretend like we're arguing about

538
00:33:25,075 --> 00:33:28,475
Speaker 6: nineteen fifty four or eighteen sixty eight, but we're really

539
00:33:28,515 --> 00:33:31,235
Speaker 6: always arguing about now.

540
00:33:33,515 --> 00:33:36,195
Speaker 1: The special episode of the Last Archive was hosted by

541
00:33:36,275 --> 00:33:39,515
Speaker 1: Jill Lapour. It was produced by Ben Nattahaffrey and Amy

542
00:33:39,555 --> 00:33:43,075
Speaker 1: Gaines mcuaid. Editing on this episode by Lydia Jane Coott.

543
00:33:43,995 --> 00:33:48,235
Speaker 1: Today's episode was engineered and mastered by Sarah Briguere. Original

544
00:33:48,315 --> 00:33:52,075
Speaker 1: music by John Evans and Matthias Bossi of Stellwagen Symfinet.

545
00:33:52,675 --> 00:33:55,795
Speaker 1: Thank you to the Oya Project. We've included a link

546
00:33:55,835 --> 00:33:58,755
Speaker 1: to their amazing Brown Versus Board of Education website in

547
00:33:58,835 --> 00:34:01,755
Speaker 1: our show notes. We should check it out. Special thanks

548
00:34:01,795 --> 00:34:04,955
Speaker 1: to the Last Archives editor Sophie Crane, to Sarah Nix,

549
00:34:05,115 --> 00:34:05,915
Speaker 1: and to Gretecone