Speaker 1: Pushkin.
Speaker 2: We come then to the question presented, does segregation of
Speaker 2: children in public schools solely on the basis of race,
Speaker 2: even though the physical facilities and other tangible factors may
Speaker 2: be equal, deprive the children of the minority group of
Speaker 2: equal educational opportunities.
Speaker 1: I'm having flashbacks. So okay, what are we listening to?
Speaker 1: Why are we here for this very special day?
Speaker 3: So May seventeenth, seventieth, the anniversary of Brown v. Board
Speaker 3: of Education, Chief Justice Earl Warren hands down the opinion
Speaker 3: in the momentous series of consolidated school segregation cases in
Speaker 3: which the Supreme Court declared segregation on constitutional a violation
Speaker 3: of the fourteenth Amendment. The crazy thing is we are
Speaker 3: listening to not the actual opinion issued by Earl Warren,
Speaker 3: because these cases were not recorded, were just on the edge,
Speaker 3: just on the eve of the Supreme Court instituting the
Speaker 3: practice of recording oral arguments. So the OYA project, which
Speaker 3: is I love, is a project started by this guy,
Speaker 3: Jerry Goldman, a political scientist, hero of evidence and justice,
Speaker 3: who decided to make available to kind of research and
Speaker 3: pull together all of the audio of all the Supreme
Speaker 3: Court opinions and oral arguments where those existed as recordings.
Speaker 3: It's all free and online at the OYA Project. It's
Speaker 3: this amazing resource. I use it all the time. I
Speaker 3: now never just go read Spreme Court opinion. I go
Speaker 3: listen to the oral arguments because of.
Speaker 1: The day A consummates.
Speaker 3: Yeah, they're great. Like, it's an incredible thing that the
Speaker 3: OYA Project exists, and it's really hugely meaningful historical record.
Speaker 3: So Jerry Goldman got really interested in what it meant
Speaker 3: that there's an absence of a record for Brown v.
Speaker 3: Board of Education, because it's so important, and because we
Speaker 3: also have the voices of the main participants. Earl Warren
Speaker 3: had been governor of California. The we have plenty of
Speaker 3: recordings of Earl Warren's voice before he was appointed to
Speaker 3: the court by Eisenhower, after he was on the court.
Speaker 3: But what we were just listening to was not the
Speaker 3: opinion issued by Earl Warren, but a recreation of Earl
Speaker 3: Warren's voice that is driven by a kind of really
Speaker 3: interesting and surely increasingly common recreation of the transcript voice
Speaker 3: actors reading the transcript and giving it emotional inflection and
Speaker 3: pacing and tone, and then an ai recreated voice kind
Speaker 3: of overlaid onto that.
Speaker 1: Like a mask I think is the term they use,
Speaker 1: that it's the sort of performance within a mask on it.
Speaker 1: I love that. It's very Batman and so I guess
Speaker 1: there's a number of reasons why it feels so right
Speaker 1: to celebrate this anniversary on the Last Archive today. One
Speaker 1: is that we are inveterate reenactors of trials, sometimes hits,
Speaker 1: sometimes misses. And then another is that Brown verse Board
Speaker 1: of Education is really central to the inquiry of the show.
Speaker 1: So much of the sort of epistemological backlash of the
Speaker 1: twentieth century, at least the bad faith backlash is a
Speaker 1: response to Brown and all these themes of brainwashing and
Speaker 1: the kind of different cultures of knowledge emerging after the
Speaker 1: mid twentieth century. It feels like it all comes out
Speaker 1: of this this moment which a lot builds up to.
Speaker 4: Well.
Speaker 1: And then of course the third reason is just artificial
Speaker 1: intelligence and how you know what you know? So it's
Speaker 1: this very yeah, last archivy combination of things.
Speaker 3: So you will remember Ben that for the Last Archive.
Speaker 1: Second season second with the Scopes tra Yeah, yeah.
Speaker 3: So the Scopes Trial in nineteen twenty five somewhat similar
Speaker 3: to the Brown case in that it was recorded and
Speaker 3: was the first criminal trial ever broadcast on the radio.
Speaker 3: It was broadcast nationwide. It was a huge phenomen People
Speaker 3: sat around and listened to the Scopes trial, but none
Speaker 3: of the radio broadcast was recorded, devastating. So like it is,
Speaker 3: it is actually really interesting to think about it as
Speaker 3: a listening experience because that's how people experienced it, and
Speaker 3: yet we clen't recapture that. And so similarly, like Clarence Darrow,
Speaker 3: like we have the William Jennings Bryan, the two attorneys
Speaker 3: who argued the case. We have their voices. Their voices
Speaker 3: are recorded, we know what they sounded like. So we,
Speaker 3: without any ethical hesitation whatsoever, wide and recreated the Scopes trial.
Speaker 1: With actors via zoom because it was the early days
Speaker 1: of the pandemic. So we were one step closer to
Speaker 1: a fully artificially intelligent voice acting experience.
Speaker 3: So you know, we never I can't recall us ever
Speaker 3: having conversations reason not to do that. I mean, anyway,
Speaker 3: inherit the wind already exists and people think, so.
Speaker 1: Okay, no, but this I think is that is a
Speaker 1: crucial I think the inherit the wind thing is a
Speaker 1: crucial point because to me, there's this ipe craze in Hollywood.
Speaker 1: People are increasingly making films based on real events. There's
Speaker 1: a kind of historical acting style that emerges when people
Speaker 1: have a lot of access to audio visual material, and
Speaker 1: it's exemplified by something like Bradley Cooper and Maestro performing
Speaker 1: as Leonard Bernstein, where you know famously he spent like
Speaker 1: years studying film of his conducting style so he could
Speaker 1: like perfectly do the movements. To me, it that turns
Speaker 1: out to be something more like mimicry than real acting
Speaker 1: or sort of real dramatic interpretation, something like Inherit the Wind,
Speaker 1: we should say, the famous nineteen sixty film re enacting
Speaker 1: the Scopes Trial starring an amazing Spencer Tracy. It bears
Speaker 1: almost no resemblance.
Speaker 3: To the actual history, right, totally free rate.
Speaker 1: But it's totally transporting.
Speaker 3: Yeah, I know it's interesting, but I think too one
Speaker 3: of the things that differentiates say, Inherit the Wind from
Speaker 3: Maestro is Inherit the Wind maybe like a performance of
Speaker 3: the Crucible, right, very much an updating of the story
Speaker 3: for our own times. Right, it isn't about a kind
Speaker 3: of backward looking Oh, let's transport ourselves to nineteen twenty
Speaker 3: five and be in the Scopes trial. It's let's offer
Speaker 3: up a moral fable that can help us understand McCarthyism. Right,
Speaker 3: It's not about emulation, it's about adaptation, which has this
Speaker 3: weird analog and constitutional interpretation, right, like do we look
Speaker 3: backward at what the frame of the Constitution or the
Speaker 3: fourteenth Amendment meant and intended and what they understood by
Speaker 3: the words that they said, or do we adapt those
Speaker 3: things for our own time. So that's what's the sort
Speaker 3: of weird free selling around, like, oh, it's cool to
Speaker 3: use these technologies to look backward, but also for what purposes?
Speaker 1: Well, this also it's sort of presented as a podcast.
Speaker 1: The narrator her name is Karen Grigsby Bates. She's from
Speaker 1: NPR both independently. Had sense that she sounds like a
Speaker 1: young Nina Totenberg.
Speaker 3: Let's pause here for a quick explanation of what you're hearing.
Speaker 3: No microphones were recording Warren's words that day in nineteen
Speaker 3: fifty four. I just feel so taken care of.
Speaker 1: I would believe anything that was told me.
Speaker 3: It's good to tell me. So this is why I
Speaker 3: have come out of my sabbatical to record a one
Speaker 3: off episode of the Last Art Time with you, just
Speaker 3: to think about how interesting this is. It really does
Speaker 3: raise all kinds of questions for historical research and history
Speaker 3: storytelling too, that I know, we you know, won't have
Speaker 3: time to get into. But I decided I would try
Speaker 3: to find out whether one of the voices at least
Speaker 3: is accurate. But I wrote to four people I know
Speaker 3: who were martial clerks, and I asked them to listen
Speaker 3: to the recreated martial voice, and three of them said
Speaker 3: more or less the same thing, which was that Marshall
Speaker 3: famously could speak in many different voices, that he had
Speaker 3: different accents that he could put on. I mean, he
Speaker 3: grew up in Baltimore, but he had worked as a
Speaker 3: pullman porter, you know, when he went and argued cases
Speaker 3: in the South, he kind of deliberately sounded a little
Speaker 3: bit more like a Southerner. But in a court room,
Speaker 3: and certainly in the Supreme Court, he spoke in impeccable
Speaker 3: enunciated Queen's English. Martha Minno told me that people come
Speaker 3: from miles around just to hear a third good Marshall
Speaker 3: argue in court, just because of the nature of the performance.
Speaker 3: But you know, Harry Littman, who was also a Marshall clerk,
Speaker 3: who's the host of the amazing podcast Talking Feds that
Speaker 3: I'm obsessed with, he heard the recreated Marshal voice as
Speaker 3: something of like something of a mashup of Marshall's many
Speaker 3: different speaking styles. Cas Sunstein told me, you know, that
Speaker 3: sounds a bit like when I knew him, but I'm
Speaker 3: not super close. And then Randy Kennedy, a law school
Speaker 3: professor at Harvard as well and a former Marshall clerk, said,
Speaker 3: if you had not told me that the voice was
Speaker 3: AI generated out of sworn that it was the real
Speaker 3: third Good Marshal.
Speaker 1: Something that's interesting to me though about this. I love
Speaker 1: hearing the reports of people who actually knew him, but
Speaker 1: it also foregrounds for me this kind of maybe naive
Speaker 1: to say, but incredible to me, fact that Brown resportive
Speaker 1: education as a ruling well within the span of a
Speaker 1: human lifetime. I mean, this is the seventieth anniversary, but
Speaker 1: you're actually going to talk to a scholar, Kenneth Mack
Speaker 1: from Harvard Law School who studies round resportive education now
Speaker 1: about the significance of the case.
Speaker 3: Yeah, So, Ken, this amazing. He is just an incredibly
Speaker 3: astute constitutional analyst, but he's also a legal historian, and
Speaker 3: he's wrote this really amazing book on civil rights lawyering
Speaker 3: and what it means to sort of try to represent
Speaker 3: a race. So I wrote to Kenna say, like, this
Speaker 3: is this crazy brown thing is coming out? What do
Speaker 3: you make of it?
Speaker 5: Hi?
Speaker 4: Ken?
Speaker 3: Hey, how are you good?
Speaker 6: Good?
Speaker 4: Good?
Speaker 3: Thank you so much for doing this. I will confess
Speaker 3: I'm completely fascinated by this project of trying to recreate
Speaker 3: the entire audio landscape of Brown v. Board of Education.
Speaker 3: So I wanted to ask you a little bit first though,
Speaker 3: what the NAACP's legal strategy was here.
Speaker 6: Okay, all right, So the background for Brown versus the
Speaker 6: Board of Education. The NAACP is the principal of civil
Speaker 6: rights organization in the United States. Found in the early
Speaker 6: twentieth century. By the nineteen thirties, the NAACP it began
Speaker 6: to focus some of its energies on school desegregation. The
Speaker 6: attack on segregated schools was led by two lawyers, one
Speaker 6: of which was Thurgood Marshall, who had eventually become the
Speaker 6: first black Supreme Court justice, and the other of which
Speaker 6: was Charles Hamilton Houston, who was a black Harvard Law
Speaker 6: School graduate. So the two of them began filing cases
Speaker 6: in the nineteen thirties about schools, but most of them
Speaker 6: were school equalization cases. So you've got a black school
Speaker 6: in which the teachers are paid X at a white
Speaker 6: school in which the teachers are paid Y. So we
Speaker 6: followed suit to try to get the teachers paid equally.
Speaker 6: There are a number of cases they bring that are
Speaker 6: about primary secondary schools. Okay, we want equal salaries for
Speaker 6: Blackack and white teachers or equal facilities for black and
Speaker 6: white schools within the system of segregation. But there are
Speaker 6: a bunch of university cases. The NACP challenges Missouri's practice
Speaker 6: of excluding black people from its law school. You know,
Speaker 6: there is no black law school and the white law
Speaker 6: school is whites only. So the NACP brings a case saying, okay,
Speaker 6: well there's no black law school, we should bit black
Speaker 6: people to the white law school. And Supreme Court decides
Speaker 6: in favor of the NAACP in that case.
Speaker 3: Which because there's no question, there's no question of equality
Speaker 3: when there's an absence.
Speaker 6: Yeah, yeah, So the it's still within separate but equal, right,
Speaker 6: because theoretically, if you built a black law school in Missouri,
Speaker 6: you know, that would be okay within separate but equal,
Speaker 6: But there is no black law school. In fact, to
Speaker 6: build a black law school would be fantastically defensive. So
Speaker 6: the logic of the case is actually an attack on separate
Speaker 6: but equal, because you know, you can't build separate everything,
Speaker 6: right law schools, dental schools, et cetera, et cetera. And
Speaker 6: so that begins to set the stage for the cases
Speaker 6: that would become brown versus more of education.
Speaker 3: So one of the things I love about these cases
Speaker 3: is there's so much human drama. You know, Robert Jackson
Speaker 3: has a heart attack, Fred Vinson just up and dies.
Speaker 3: You know, the court changes, the cases argued more than once.
Speaker 3: You know, there's like the drama of the day itself.
Speaker 3: May seventeenth, nineteen fifty four, and the kind of you
Speaker 3: get this real sense the country is on the edge
Speaker 3: of its seat about the case at that point. But
Speaker 3: then you know this from the historians point of view,
Speaker 3: it's quite frustrating that none of this was recorded, and
Speaker 3: it's just on the edge of when the court begins
Speaker 3: recording its proceedings. So one of the things that I
Speaker 3: think is really interesting about this OIA project attempts to
Speaker 3: recreate the audio of it all, is can that sense
Speaker 3: of human drama be captured with like artificially intelligent driven
Speaker 3: recreation of voices. Let's listen to a little clip of
Speaker 3: one of the recreated scenes, and then I don't kind
Speaker 3: of want to hear your reaction to it. I think
Speaker 3: this is from Spotswood Robinson arguing in the court.
Speaker 5: I think it is very clear that the frame was
Speaker 5: intended to destroy the black Codes. I think it is
Speaker 5: clear that they intended to deprive the states of all
Speaker 5: power to enact similar laws in the future. I think
Speaker 5: the evidence overall is clear that it was contemplated and
Speaker 5: understood that the state would not be permitted to use
Speaker 5: its power to maintain a class or caste system based
Speaker 5: upon race or color, and that the Fourteenth Amendment would
Speaker 5: operate as a prohibition against the imposition of any racial
Speaker 5: classification in respect of civil rights.
Speaker 3: So, yeah, what's your reaction to that.
Speaker 6: Well, it's a lot of fun to hear to pretend
Speaker 6: ones hearing spots with Robinson. You know, he's from Virginia.
Speaker 6: It sort of sounds like what he would sound like.
Speaker 6: Maybe although I never met him, so I don't really know.
Speaker 6: To me, it's like listening to a movie traumatization, like
Speaker 6: this is not Spotswood Robinson, but maybe you get a
Speaker 6: sense of what it might have been like to have
Speaker 6: heard him.
Speaker 7: Yeah.
Speaker 3: Yeah, there's a kind of combination of an actor underlay
Speaker 3: and then some ai overlay in these voices. But thinking
Speaker 3: about I'd love to hear more about what it meant
Speaker 3: for someone like Robinson to do the work of lawyering.
Speaker 3: Is there something about how you would imagine hearing that
Speaker 3: or the way that that would come across in an argument.
Speaker 3: I guess, like I'm not sure. It kind of gets
Speaker 3: me there, that voice, right, Like there's something about the
Speaker 3: the stakes.
Speaker 6: Yeah, it's it's it's every time these black lawyers go
Speaker 6: to court in these civil rights cases, there's a lot
Speaker 6: of drama just from the from the basic trial court
Speaker 6: to the Supreme Court because in every case, you know,
Speaker 6: in these courtrooms, there's never been a black person to
Speaker 6: do this kind of thing. There are very few black lawyers.
Speaker 6: If their good marshall goes to court in Virginia or
Speaker 6: somewhere else in the South, nobody's ever seen a black lawyer.
Speaker 6: Usually and nobody's seen a black layer talk to white
Speaker 6: people the way that Thirgod Marshal gets to talk to
Speaker 6: white people in court. But at the same time, you know,
Speaker 6: there's a bunch of cases where Marshall's not sure if
Speaker 6: he's going to be lynched for coming to court, and
Speaker 6: in one case he almost is lynched and it's just
Speaker 6: saved by one of his colleagues. So there's things like
Speaker 6: that you just can't reconstruct, right, just the drama of
Speaker 6: that moment.
Speaker 3: Yeah, let's listen to Marshall for a minute. What I
Speaker 3: want to do is play this Ai Marshall, and then
Speaker 3: we can listen to actual Marshal from the same year,
Speaker 3: from fifty four, and see what you think.
Speaker 8: There is nothing in the debates that will hint in
Speaker 8: the slightest that they did not mean complete equality. They
Speaker 8: said so to raise the Negro up into the status
Speaker 8: of complete equality with the other people. That is the
Speaker 8: language they used. Substantial as a word. It was put
Speaker 8: into the fourteenth Amendment by Plessy versus Furguson, and I
Speaker 8: cannot find it, and it cannot be found in any
Speaker 8: place in the debates.
Speaker 3: Okay, can we listen to the actual Marshal from the
Speaker 3: same period.
Speaker 4: Despite the progress that's been made in twenty years, despite
Speaker 4: the fondest hopes of a lot of people, we have
Speaker 4: got before us a job for the future, and it's
Speaker 4: not the type of job that can be solved solely
Speaker 4: by government. It's a type of job that has to
Speaker 4: be solved by individuals working on individuals.
Speaker 3: I don't know, what do you think.
Speaker 6: It's so striking that the two they don't quite sound alike.
Speaker 6: They're similar, but also like, I know what Marshall sounded
Speaker 6: like later in life. I didn't meet him, but he's
Speaker 6: more gravely, like yeah, yeah, his voice is deeper later
Speaker 6: in life. He his accent changes. So that's the other
Speaker 6: thing you just can't capture. You don't know what he
Speaker 6: sounded like in court because everybody said that when he
Speaker 6: was in when he was in the South, he would
Speaker 6: get a real Southern accent. Now when he's in a
Speaker 6: Supreme court, he probably doesn't.
Speaker 3: Yeah, but we don't.
Speaker 6: Actually know that he's arguing with John W. Davis, you
Speaker 6: know who knows. Yeah, So we can't capture that yeah aspect.
Speaker 3: Yeah, like he just was like a consummate code switcher,
Speaker 3: which I guess We're not surprising when you think about
Speaker 3: the kind of roles that he was playing, as you say,
Speaker 3: and also traveling and speaking into different audiences.
Speaker 1: We'll be back with more in just a minute.
Speaker 3: I kind of want to go back to the case
Speaker 3: itself and think about how close was Brown to being
Speaker 3: decided differently.
Speaker 6: Yeah, we don't know how close Brown was to being
Speaker 6: decided differently. We know that the first time it was argued,
Speaker 6: it looks like maybe four justices were in favor of
Speaker 6: overturning school segregation, and maybe two were in favor of
Speaker 6: affirming it, and the others, including Felix Frankfurter, we don't
Speaker 6: really know. So there's a lot of accidents, you know,
Speaker 6: like this is history, right, History is you know, a
Speaker 6: bunch of things happened, and some of them are planned,
Speaker 6: and some of them are accidents, and some of them,
Speaker 6: you know, an accident happens and then somebody takes advantage
Speaker 6: of it and pushes it. So our main accident, of course,
Speaker 6: is that Chief Justice Vincent dies and Brown is re
Speaker 6: are argued, and in the second argument, the NAACP is
Speaker 6: a lot more aggressive also, and you know what they
Speaker 6: ask for and the kind of claims they make about
Speaker 6: the original understanding of the fourteenth Amendment as prohibiting school segregation.
Speaker 6: So these are all accidents. It was, you know, the
Speaker 6: cases themselves were often accidents in the sense that the
Speaker 6: cases kind of evolved. You know, the South Carolina case
Speaker 6: breaks versus delegate starts with a request for a school bus, like, Okay,
Speaker 6: if they gave the black kids a school bus, then
Speaker 6: maybe the whole thing would have been different.
Speaker 3: I've been reading about, you know, that day and people's expectations,
Speaker 3: a sort of reporter scrambling to go down to the
Speaker 3: courthouse because finally this decision was going to be issued.
Speaker 3: You know, it had been argued twice, it had been
Speaker 3: in the news for a long time. The country's really
Speaker 3: kind of on the edge of its seat about what
Speaker 3: this decision is is going to look like. I was
Speaker 3: reading the biography of Ethel Payne, who was the Washington
Speaker 3: reporter for the Chicago Defender, and she had gone down
Speaker 3: with the press and she talks about, you know, it
Speaker 3: was noontime that the court was called into session, and
Speaker 3: at the minute it became clear which way the decision
Speaker 3: was going to go. When Warren got to you know,
Speaker 3: a particular point in issuing the opinion, which he of
Speaker 3: course read out loud that everybody the room already looked
Speaker 3: the room to go report it. So let's hear when
Speaker 3: he kind of gets to that point where you kind
Speaker 3: of the reveal, where you kind of get a good
Speaker 3: sense of how how the opinion is going to go.
Speaker 2: In approaching this problem, we cannot turn the clock back
Speaker 2: to eighteen sixty eight when the amendment was adopted, or
Speaker 2: even to eighteen ninety six when plus versus Ferguson was written.
Speaker 2: We must consider public education in the light of its
Speaker 2: full development and its present place in American life throughout
Speaker 2: the nation. Only in this way can it be determined
Speaker 2: if segregation in public schools deprives these plaintiffs of the
Speaker 2: equal protection of the laws.
Speaker 3: What Ethel Payne talks about is that once the decision
Speaker 3: went out on the radio, because people, the reporters who've
Speaker 3: raced out of the room called the radio stations, you know,
Speaker 3: call their newsrooms, that all the taxis in Washington, DC
Speaker 3: started honking. All the taxi drivers were these black men,
Speaker 3: and they all heard it on the radio at the
Speaker 3: same time, and people were were like like an atomic
Speaker 3: attack or something that they were like sirens going up.
Speaker 3: The whole city kind of like exploded in this kind
Speaker 3: of powerful noise, which I really love. But I'm wondering
Speaker 3: if you just tell us, like, what is the opinion
Speaker 3: and what's striking about it to you?
Speaker 6: Still?
Speaker 1: Today?
Speaker 6: I think a few things are striking about Warren's opinion today.
Speaker 6: I mean one is it's written in very plain language.
Speaker 6: You know, Warren is a politician. He knows how to communicate.
Speaker 6: It's a big deal what Supreme Court is doing, and
Speaker 6: he doesn't want it to feel technical. He wants it
Speaker 6: to feel like something that people can understand. It also
Speaker 6: sort of avoids the issue why exactly is school segregation
Speaker 6: un constitutionally? Doesn't quite tell us, and we're still really
Speaker 6: arguing today about you know, why was it unconstitutional? So
Speaker 6: it's the way in which it's it's smart, it's plain,
Speaker 6: it's it's written by somebody who knows how to write
Speaker 6: an opinion that's going to be consumed by millions of
Speaker 6: Americans who don't agree on the fundamental thing that he's deciding.
Speaker 3: And how did the country respond to it in fifty.
Speaker 6: Four, Well, there were a number of different responses. The
Speaker 6: initial reaction was very muted, they're they're not these grand
Speaker 6: gestures of defiance. I mean there there, there would be
Speaker 6: pretty soon. I mean once you know, Martin Luther King
Speaker 6: comes along, you know, basically not very long after, so
Speaker 6: pretty soon there are these kind of grand gestures of
Speaker 6: defiance of the both of the Supreme Corps to the
Speaker 6: prospect of integration. But but in the white South, the
Speaker 6: initial reaction is, you know, maybe pretty mutic compared to
Speaker 6: what we might expect it to have been from our
Speaker 6: our vantage for many years later.
Speaker 3: So one of the things I think about with Brown,
Speaker 3: and this was really striking to me. Somehow listening to
Speaker 3: the arguments made this more clear to me than reading them,
Speaker 3: which was how intricately the NAACP lawyers are both insisting
Speaker 3: on in an original intention argument about the Fourteenth Amendment,
Speaker 3: that it had these anti slavery origins, that it was
Speaker 3: an abolitionist idea, that it had this kind of open
Speaker 3: ended meaning that could be construed to declare segregation unconstitutional,
Speaker 3: in spite of the fact that all the members of
Speaker 3: Congress who were involved in drafting the Fourteenth Amendment had
Speaker 3: children who were going to segregated schools. Like the original
Speaker 3: intention argument can go the other way. But they have this,
Speaker 3: they're committed to that, but at the same time they
Speaker 3: want to argue that original intention kind of doesn't matter,
Speaker 3: and that really it's the social science that they're presenting.
Speaker 3: This amazing, you know, this incredible. Uh so we will
Speaker 3: call social psychology evidence about the consequences of segregation for
Speaker 3: black children. Like they're throwing everything by way of evidence
Speaker 3: and argument at defeating in this kind of grand sweeping way,
Speaker 3: the very idea of separate but equal. By the time,
Speaker 3: you know, they get to the actual second round of arguments,
Speaker 3: and you know, looking from my point of view seventy
Speaker 3: years on the legal arguments, that that argues not John
Speaker 3: Davis's arguments in court in fifty three or something, but
Speaker 3: the later legal arguments, you know, the sort of origins
Speaker 3: of originalism case that the reaction to Brown leads a
Speaker 3: group of scholars who would come to call themselves conservative
Speaker 3: constitutionalists to emphasize that the original intention of the fourteenth
Speaker 3: Amendment was never to end segregation and that therefore Brown
Speaker 3: was wrongly decided. And you see this kind of whole
Speaker 3: origin of some of our contemporary legal clashes around what
Speaker 3: the Supreme Court does and how it makes its decisions.
Speaker 3: So I'm struck listening to it at how like alive
Speaker 3: those disputes still are.
Speaker 6: Yeah, I think we have always argued as Americans about
Speaker 6: are founding principles and race. Right in the nineteenth century
Speaker 6: it was was the Constitution pro slavery or anti slavery?
Speaker 6: You know, pitched battles over that. And since Brown, it's
Speaker 6: you know, how to understand the Fourteenth Amendment? Do we
Speaker 6: look at its original understanding, intention, meaning, et cetera, et cetera.
Speaker 6: Does that matter even when we look back to eighteen
Speaker 6: sixty eight we get different answers there? Actually is it
Speaker 6: one answer? I mean, Supreme Court is deciding cases at
Speaker 6: this moment that are about how to understand both the
Speaker 6: meaning around when it was decided and the meaning of
Speaker 6: the Fourteenth Amendment when it was framed and ratified. And
Speaker 6: you know, we've just been arguing about that for the
Speaker 6: last seventy years, and we could continue to argue about that.
Speaker 3: I am really interested in the tech piece of this,
Speaker 3: where this kind of AI voice recreation can give us
Speaker 3: some proximate version that's maybe different than hiring actors, could
Speaker 3: be cheaper for ordinary people to do. And since so
Speaker 3: much of our constitutional discourse is about original intention, meaning
Speaker 3: and understanding. So let's say someone wants to recreate the
Speaker 3: debates of the congressional debates about the fourteenth Amendment as audio,
Speaker 3: where the question of what did people mean when they
Speaker 3: said these things is given a different weightiness if we're
Speaker 3: listening to it and you're you know, the way the
Speaker 3: AI might emphasize certain terms or recreate certain voices. Since
Speaker 3: we care about what the framers of constitutional texts meant
Speaker 3: when they said things, what would it mean if we
Speaker 3: were listening to them? Would it have an effect on
Speaker 3: how we interpret the constitution? Is there a conceivable future
Speaker 3: in which this technology has implications for jurisprudence?
Speaker 6: You know, it's interesting when we kind of think about
Speaker 6: what did Brown mean when it was decided, and if
Speaker 6: we had some form of a access AI generated to
Speaker 6: how people spoke about it, would it help us understand
Speaker 6: what it meant? And I guess the answer was sort
Speaker 6: of yes and no. You know, I'm a historian, so
Speaker 6: I always think I'm committed to figuring out how people
Speaker 6: thought about things in the past and trying to do
Speaker 6: that as accurately as possible. And there's a way in
Speaker 6: which AI is both facilitates and underminds that, right, because
Speaker 6: you know, you can't you can't reconstruct how it sounded
Speaker 6: in the past because you weren't there. We don't have
Speaker 6: a recording. Even if we even if we had a recording,
Speaker 6: we don't know what it feels like to be in
Speaker 6: the room. So there's a way in which it's it's
Speaker 6: it's great, and there's a win which it's a pipe dream.
Speaker 6: I mean, you're just never going to be able to
Speaker 6: get to the past. Yeah, and we almost have to
Speaker 6: sort of leave it there.
Speaker 3: Yeah, no, we do, but that I think I have
Speaker 3: this kind of completeness fantasy as a historian, and something
Speaker 3: about this AI kind of speaks to that, like, oh
Speaker 3: you could really you know, why did Warren write it
Speaker 3: just that way? You can when you hear it, it would
Speaker 3: be different, dirt, that's somehow we could get all the answers.
Speaker 3: And but you're rational and wise and you know that's
Speaker 3: not that that's not true. But also it shouldn't decide
Speaker 3: for us how we live today, right, like at some level,
Speaker 3: like that's kind of the turning point that Brown represents, Right,
Speaker 3: even if we knew what the what the framers what
Speaker 3: John Bingham meant when he drafted the fourteenth Amendment. Even
Speaker 3: if we knew, we still know we should end segregation,
Speaker 3: do you know what I mean? Like even like that,
Speaker 3: that's the that's for me, the the kind of real
Speaker 3: majesty of Brown is the naac's claim like, all right,
Speaker 3: we're gonna make this argument about original intention, but it
Speaker 3: actually what we're really going to say is this is
Speaker 3: just wrong. And that's why I love this case. Like
Speaker 3: that's why I love listening to Marshall and spots with'ms
Speaker 3: and make these claims because you can hear like enough already, do.
Speaker 1: You know what I mean?
Speaker 6: Yeah, I mean I agree. I think that Brown was
Speaker 6: as much about the moment it was decided as it
Speaker 6: was about eighteen sixty eight. Like I mean, you know,
Speaker 6: if you read about the justices, they.
Speaker 7: Kind of understood, you know, it's the nineteen fifties. Could
Speaker 7: we really have school segregation? This thing is kind of wrong,
Speaker 7: But then what are we supposed to do? How were
Speaker 7: we supposed to write an opinion? But they kind of
Speaker 7: know intuitively, at least most of.
Speaker 6: Them, that it seems incommensurate with nineteen fifties America to
Speaker 6: have this and to not have any legal remedy. And
Speaker 6: that's really what the case is about. And as you say,
Speaker 6: the Thurgood Marshall and the NAACP lawyers they kind of
Speaker 6: know that too. And we argue about all this technical stuff,
Speaker 6: but really the case is about now, as in the
Speaker 6: nineteen fifties for Brown. Yeah, but we argue about it.
Speaker 6: It's always about now. We pretend like we're arguing about
Speaker 6: nineteen fifty four or eighteen sixty eight, but we're really
Speaker 6: always arguing about now.
Speaker 1: The special episode of the Last Archive was hosted by
Speaker 1: Jill Lapour. It was produced by Ben Nattahaffrey and Amy
Speaker 1: Gaines mcuaid. Editing on this episode by Lydia Jane Coott.
Speaker 1: Today's episode was engineered and mastered by Sarah Briguere. Original
Speaker 1: music by John Evans and Matthias Bossi of Stellwagen Symfinet.
Speaker 1: Thank you to the Oya Project. We've included a link
Speaker 1: to their amazing Brown Versus Board of Education website in
Speaker 1: our show notes. We should check it out. Special thanks
Speaker 1: to the Last Archives editor Sophie Crane, to Sarah Nix,
Speaker 1: and to Gretecone