In commemoration of Black History Month, this week we’re sharing the courageous stories and legendary lives of African American constitutional visionaries throughout history—including well-known figures like Frederick Douglass, Harriet Tubman, Sojourner Truth, Ida B. Wells, W.E.B. DuBois, Martin Luther King Jr., and Malcolm X, as well as some lesser-known but groundbreaking figures like Monroe Trotter and Pauli Murray. We highlight their fights to bring about constitutional change, from abolition and suffrage to the civil rights and voting rights movements and beyond. Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit, and professor Theodore M. Shaw of UNC Law, former director-counsel of the NAACP, join host Jeffrey Rosen.
FULL PODCAST
PARTICIPANTS
Theodore M. Shaw is the Julius L. Chambers Distinguished Professor of Law and the Director of the UNC Center for Civil Rights. Shaw is the author of many works including the introduction to The Ferguson Report of the United States Department of Justice Civil Rights Division. He worked for the NAACP Legal Defense Fund for over 26 years and was its fifth director-counsel.
Judge Theodore A. McKee has been a judge of the U.S. Court of Appeals for the Third Circuit since 1994 and served as chief judge from May 2010 to October 2016. His previous work includes service as a state trial judge, chair of the Pennsylvania Sentencing Commission, an Assistant U.S. Attorney, deputy city solicitor for the city of Philadelphia, and judge for the Court of Common Pleas of Philadelphia County.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Jackie McDermott, Alexandra "Mac" Taylor, Paige Britton, and Lana Ulrich.
ADDITIONAL RESOURCES
- Civil War and Reconstruction: The Battle for Freedom and Equality exhibit, the National Constitution Center
- Sojourner Truth, “Ain’t I a Woman?”
- Fugitive Slave Act
- "Letter from Frederick Douglass to Harriet Tubman”
- W.E.B. DuBois, The Souls of Black Folk
- “NAACP Legal History” on Charles Hamilton Houston and Nathan Margold
- Brown v. Board of Education of Topeka (1954)
- Martin Luther King Jr., A Testament of Hope
- Martin Luther King Jr., Stanford University, "Martin Luther King Jr. Papers Project"
- Malcolm X and Alex Haley, The Autobiography of Malcolm X
- Les Payne and Tamara Payne, The Dead Are Arising: The Life of Malcolm X
- Malcolm X, “The Ballot or the Bullet”
- Kerri K. Greenidge, Black Radical: The Life and Times of William Monroe Trotter
- Pauli Murray, States’ Laws on Race and Color
- Frederick Douglass, The Life and Times of Frederick Douglass
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Today's episode highlights African American constitutional visionaries. We will explore their lives, legacies, and constitutional values from the fight for abolition to the civil rights movement. And I am joined by two of America's leading constitutional visionaries and great friends of the National Constitution Center.
Professor Ted Shaw is Julius L. Chambers distinguished professor of law and director of the UNC center for civil rights. He is the author of many works, including the Introduction to the Ferguson Report of the United States department of justice, civil rights division. He worked for the NACP legal defense fund for over 26 years and was its fifth director counsel. Professor Shaw, it's wonderful to have you back on the show.
Ted Shaw: [00:01:09] Wonderful to be with you, Jeffrey.
Jeffrey Rosen: [00:01:11] And Judge Ted McKee has been a judge on the us court of appeals for the third circuit since 1994. He served as chief judge from 2010 to 2016. His previous service includes work as a state trial judge, chair of the Pennsylvania sentencing commission, and an assistant us attorney. And I'm thrilled that he has just joined the National Constitution Center Board of Trustees. Judge McKee, it is such an honor to have you with us.
Judge McKee: [00:01:39] Thank you. It's an honor to be here, Jeff.
Jeffrey Rosen: [00:01:41] Well, we are going to, to discuss great constitutional visionaries throughout history. And I want to begin with Frederick Douglass. Professor Shaw, what was Douglass' constitutional significance and what should we the people listeners know about his constitutional legacy?
Ted Shaw: [00:02:00] Well, Frederick Douglass of course, was one of the most famous Americans of the 19th century. And he was an escaped slave. He was an abolitionist. And during the civil war, he pressed President Lincoln, and even before the civil war, but certainly during the civil war, both with respect to allowing African-Americans to fight in the civil war, but also I think he helped to move President Lincoln from his original position, in which he thought, post-freedom, black Americans should be reestablished in Africa. He was someone who engaged with the Constitution. If you read his writings, if you read his speeches, if you read the newspaper that he established and ran for years as an abolitionist, he engaged with the Constitution itself. He believed that the Constitution belonged not only to those who were the original you know, creators of the Constitution, those who were the founding fathers, but he believed that it belonged to all Americans and that included African-Americans. Most notably, I think, Frederick Douglass made arguments about what should happen after freedom, with respect to the Constitution. He believed in enfranchisement of black Americans and he believed in equality. So, he was in a sense, in a real sense, one of the second founders of our nation. And he advocated for interpreting the Constitution in a way that bent it toward freedom.
Jeffrey Rosen: [00:03:57] Thank you so much for those inspiring words. Frederick Douglass celebrated his birthday on February 14th, so we can offer those thoughts in honor of his birthday. And you're so right to stress that he thought all Americans were included in the Constitution and emphasized what came after. In our civil war exhibit on Reconstruction, we have a passage where when Douglass read Madison's notes saying that the Constitution was not meant to recognize property in man, he changed the way he thought of himself as a person and as a citizen and convinced them that slavery was not--that the Constitution was not a pro-slavery document.
Ted Shaw: [00:04:36] I should have said that he also believed in equality for women.
Jeffrey Rosen: [00:04:41] That's a crucial part of his legacy. And I will ask you more about that when we talk about some of the great women visionaries as well. Judge McKee, you've heard ProfessorShaw's introduction to Frederick Douglass. Why do you think Frederick Douglass is constitutionally significant?
Judge McKee: [00:04:57] He was very instrumental in the debates surrounding the, particularly the 13th amendment. He engaged with Elizabeth Candi Staton, who was a woman's rights suffragette as, you know, a prominent proponent for the women's right to vote. There was tension there in terms of how the 13th amendment would be drafted. Should it include not only the right of former enslaved people to vote, but should it also include the right of women's suffrage? Stanton, and a number of suffragettes, thought that it was absolutely necessary for the 13th amendment to include the right of women to vote in outlawing slavery. Lincoln, I'm sorry, Douglass disagreed with that. He, as a matter of strategy, he thought, look, if we include both, we apparently have no support here to get former slaves, men, former male slaves, the right to vote. If we put on top of that language which includes extending the right to vote to women, we're going to lose the whole thing.
This was a matter of a strategy. He advocated that the right to vote, which was enshrined in the civil war amendments, be limited to freed slaves, male freed slaves, obviously. But not because he believed that women should be excluded from the right to vote. But simply as a matter of strategy. He engaged with Lincoln as Proffessor Shaw has mentioned in terms of world views of black folks. He, Douglass, realized that Lincoln had believed that Lincoln did not see blacks as the social equal of whites because of Lincoln's support for the American colonization society, which is, as Professor Shaw alluded to wanting to see freed blacks be removed from the United States, but Lincoln thought that he could never, I'm sorry--I keep using the two names. Douglass, nevertheless, found it was important to work with Douglass-- with Lincoln around this issue. In fact, he made the statement when he was criticized with working not only with Lincoln, but with former slave owners, Douglass, his response was, well, look, I will work with anyone to achieve the common good and I'll work with no one in so far as it advances, the common, evil, the common bad.
So in that sense, and we may see echoes of contemporary politics here, he very much, he advocated working a common purpose to achieve a common goal, even if it meant working with, uniting with people who otherwise you have very fundamental disagreements. So just one thing to add one thing quickly to this, the Emancipation Memorial in Washington, DC. which received some notoreity lately, which depicts, it's a statute depicting a naked statue, a black slave rising from his knees. But he is kneeling at the knee before Abraham Lincoln. Douglass gave a speech in 1876, when that Memorial was dedicated. And what he said in there, was, he expressed his dissatisfaction for the statue. He said, the Negro here, though rising, is still on his knees and nude. He wrote, what I want to see before I die is a monument representing the Negro, not content on his knees, like a four-footed animal, but he erect on his feet like a man. And he was just an eloquent spokesman for the dignality of not black folks only, but women as well. And for for all people. And for fighting for that concept to be ingrained within the civil war amendments.
Jeffrey Rosen: [00:08:24] Both of you have mentioned the connection between a Douglas fight for our rights for African-American men to vote and women's suffrage. And the next pair that I want to introduce is Harriet Tubman and Ida B. Wells. Both were heroes who fought against the stain of slavery, as well as fighting for the enfranchisement of women. Professor Shaw, what can you tell our listeners about Harriet Tubman and Ida B. Wells?
Ted Shaw: [00:08:56] Harriet Tubman of course just was someone who fought against slavery, was one of the leading voices against slavery. Harriet Tubman, along with Sojourner Truth, were two women who played one of the most and some of the most important roles in the struggle to end slavery. Ida B. Wells in her time, a journalist. Someone who was very active against lynching and violence against African-Americans. These were great Americans. I should say, to go back to Frederick Douglass for a moment and his work on behalf of women's rights, women felt that the 14th amendment was a great betrayal. The suffragettes, as they would called, the women's rights activists, they were abolitionists. But when the 14th amendment was adopted, it had language in it. Section three of the 14th amendment, for the first time, mentions male, the words, male, gender, sex. And they thought that was a tremendous betrayal.
And the fact that the 14th amendment did not, wasn't interpreted as applying to women in the same way that it did to African-Americans and certainly the 15th amendment betrayed women's rights. So, when you think about Sojourner Truth, you think about her famous speech you know, "aren't I a woman too?" You think about Ida B Wells. She was a very powerful advocate for women's rights, as well as the rights of African Americans. When you think about these women from that era, they were before their times in many respects. And these were some of the great black Americans, but some of the great Americans period. I think when we think about them, we should also think about the second founding or another founding as the country moved toward a more perfect union.
Jeffrey Rosen: [00:11:11] You've used the phrase second founding several times. And thank you for reminding us that like Frederick Douglass, these great women, Harriet Tubman, Sojuorner Truth, and Ida B. Wells were second founders as well. Judge McKee, what can you tell us about Harriet Tubman, Ida B Wells. And Sojourner Truth?
Judge McKee: [00:11:31] One thing that jumps out at me is the--all of these people we're talking about--the incredible courage that they had, but when I think of the word courage, as courageous as people like Frederick Douglass were by coming out publicly, as he did, and revealing himself as a former slave. He obviously risked being captured back into slavery until there came a time when his savior was purchased by a group of supporters in England. And he could return to the United States after a trip to England as a freed person. But it's calling before that, he risks his liberty, really, by coming out and revealing himself as a former slave, and revealing the name of his former slave master, who then had license under the Fugitive Slave Act to come and return him to slavery.
But in terms of courage, Harriet Tubman is someone who escaped slavery for herself and rather than being content with her newfound freedo, and I put freedom in quotation marks, because the freedom that was the reality for black folks back then is not what we would call today free by any means, given the fear, the intimidation, the Jim Crow regime, the domestic terrorism, that was the law of the land in many places. She went back into the South, back below the Mason Dixon line and helped hundreds of slaves escape back into freedom by bringing them to the North with the passage of the fugitive slave act, which meant they were no longer slaves in the North. She then engaged herself in helping them go further North into canada. And she did all this obviously under a cloak of darkness, in secret. There's one story that I read recently of her stealing herself, sneaking into a slave auction in Baltimore, Maryland. And when the auctioneer took a break, she had went to where the slaves were being held and took them from the pen and got them to Canada. When the auctioneer came back to auctioon off the slaves, he realized, well, damn, the slaves were gone. But one thing I do want to read to you, and it's a letter. I am actually not sure if it's a letter or a statement that Frederick Douglass made to Harriet Tubman, recognizing her courage, you know, I'll just take a few seconds to read this.
The difference between us is very marked. Most that I have done in suffered in the service of our cause has been in public, that I have received much encouragement at every step of the way. You on the other hand have labored in a private way. I have wrought in the day, you in the nigh. They midnight sky and the silent stars have been the witnesses of your devotion to freedom and of your heroism. Accepting John Brown, a sacred memory. I know of no one who has willingly and come through more perils and hardships to serve our enslaved people than you have. And I think that says it better than I possibly could. She did meet, I know at least once, I think twice, Harriet Tubman met with John Brown, I believe she met with him a few months before he embarked upon his military mission at Harper's ferry.
And I'm not sure to what extent she was involved in the planning of that. I know she did meet with him, as did Frederick Douglass and Duoglass, actually, Brown tried to recruit Frederick Douglass into that mission at Harper's ferry. Frederick Douglass thought that Brown's ambition was a bit too ambitious. E thought that Brown was underestimating the ease with which he could raise a slave army to take up arms against the slave masters. An he basically wished John Brown well, but wanted to have nothing to do with it. And thereafter, I believe, he actually took a trip which had been pre-planned to Europe because he was afraid that he would be accused of being a co-conspirator, if it would have become known that he had met with John Brown and discussed this at Harper's Ferry.
And one quick thing in terms of Ida B. Wells. It shows us how early, how important the first amendment was. Her incredibly courageous reporting of lynchings that was not covered by the white press at all brought to bear and brought to light the kind of terrorism that infected the lives of so many people in various parts of this country, by documenting lynchings soon after they happened and making people aware of it. It could not be done in secret, anymore. And her courage also was tremendous. Her house was burned to the ground, I believe, at one point. Where she published her newspapers, at last one of her newspapers, she published several of them, was also burned to the ground. And of course her life was constantly under threat.
Jeffrey Rosen: [00:16:05] Thank you so much for that. And for reading that incredibly moving passage. Professor Shaw, any final thoughts on Frederick Douglass and those great women in the Reconstruction period. And then I want to move forward to the period known as Redemption, the backlash against Reconstruction, which led to the evisceration of the promise of the Reconstruction amendments and the rise of great figures as W.E.B. Du Bois, a founder of the NAACP and great scholar and author, as well as some less known, but equally heroic figures like Monroe Trotter, who thought that Du Boios and others didn't go far enough in advocating for equal rights. Tell us about them.
Ted Shaw: [00:16:50] I wanted to just quickly underscore that Harriet Tubman a woman actually fought in the civil war and had a commission. But I also wanted to share that powerful quote attributed to her, "if you are tired, keep going. If you are scared, keep going. If you are hungry, keep going. If you want to taste freedom, keep going." This is what he, what she said rather, to those she bought out of slavery when they were flagging and doubted whether they could successfully escape. So I wanted to mention that. W.E.B. Du Bois, one of the great Americans. It's really a shame that all Americans don't know who he was. He was born in the year that the 14th amendment was actually ratifie, if I remember correctly in 1868 and he died literally on the eve of the great March on Washington. He died as a an expatriot in Ghana. And over the span of his life, his ideologies grew and developed and changed.
He was a great historian, a great sociologis, an integrationist, as you mentioned, a founder of the NAACP. But he also at various points was somebody who adopted communist ideology when communism, wasn't what it became later on. And he was a Pan-Africanist. So this was one of the great intellectual thinkers in American history and one of the great writers. He wrote BlackReconstruction in America, as well as the Souls of Black Folks. And I could go on and mention Dark Water and many of his great works and he was also famously known for his intellectual battles with the Booker T. Washington, who in his time was if not the most famous, one of the most famous African-Americans. And so we could say a great deal about W.E.B. Du Bois. And he didn't grow up in the South. He grew up in Massachusetts in Great Barrington, Massachusetts. Didn't come from that slavery tradition. But was one of the great leaders of African-Americans in this country.
Jeffrey Rosen: [00:19:18] Judge McKee, you told me that you were setting out to reread the Souls of Black Folks and inspired me to do the same. And you also wanted to talk in addition to Du Bois about Monro Trotter, who was a less well known, but also very important hero of the time. Tell us about the Du Bois and Trotter.
Judge McKee: [00:19:38] You know, in many ways, the relationship between, and the tension between Du Bois and Trotter reflects a relationship intention that is more familiar to most folks and that is between Malcolm X and Martin Luther King. Trotter was someone from the little that I've read, apparently, he was not only someone who was very, very, I used the term progressive, militant adversarial, whatever adjective you want to put, but it appears as though he wasn' the most tactful person in the world. He was known to engender conflict, not only amongst his antagonists, but also with people who were allied with him. Interesting, in 1912, he actually supported against the feelings at W.E.B. Du Bois, he supported Woodrow Wilson for president, which is ironic because Wilson became one of the great segregationist presidents. He segregated the workforce in Washington, DC after he became the president. But Wilson met with Trotter before the election and made what was then described as some vague gestures toward equality for black folks. And Trotter believed that. He felt that that was better than what he was getting from the other side. When Wilson then, I guess you could use the term with no pun intended, went South, and was convinced by Democrats in the South that he, Wilson, had to become much more ardent in racial matters. And he ended up segregating the federal work service. Trotter met with Wilson twice, actually in the white house to try to dissuade him from the course he had taken. The second time he met with Wilson, apparently he erupted into a shouting match.
Wilson ordered him to leave. Trotter left, and the were on not very good terms after that. Trotter was involved with the Du Bois in the formation of the Niagra movemen, and after that, the NAACP, which the Niagara movement kind of evolved into. As was, I think Ida B. Wells was also involved in that movement. I'm not as certain as that, and Professor Shaw might be able to help me with that. But the relationship between Du Bois and Trotter became so stressed that Trotter eventually left NAACP and formed a parallel organization. And there was never after that, the same working relationship or collegiality between Du Bois and Trotter and the reason Trotter left was, he thought the Du Bois was not militant enough.
He was just not pushing enough. Trotter was much more outspoken in the critique of Booker T. Washington, who I guess was known as the white person's Negro back then. Du Bois was also very critical of Washington, but he wasn't as acerbic in that criticism, as Trotter was. From what I can tell Trotter was just generally acerbic in his criticism of anybody whose philosophy he disagreed wit. He had several conflicts with Washington. One of them actually broke out into what was called the thing, that Boston Riot. When people who had assembled the year Booker T. Washington gave a speech and supporters of Monroe Trotter in the crowd began shouting at one another. There was a pushing and shoving match. Trotter was there, apparently was not involved in provoking that match.
But he is someone who is very important because I think he kept folks high on the ultimate prize and he never let people become too easy with the idea of just getting comfortable with the little bit of progress that was afforded us. The organization that he formed after he left the NAACP was the NERL. And I think it was the national equality of recognition league--I'm not sure about that, I'd have to look that up. And it was met as a conaway to the NAACP to try to push the NAACP further and to move our agenda further. And we'll talk about this shortly, I guess, with Malcolm, and with Dr. King, but the parallels are very, very real there. And I think that in large part, folks like a middleweight fighter and certainly people like Malcolm X, don't get the credit they could because it was their activism and their pushing, which I really think advanced the ball, even though they may have come into great deal of criticism, both inside and outside of the black community.
They held folks' feet to the fire and they were not willing to compromise, perhaps at times when they should have compromised, but they're being not willing to compromise, really did force folks to kind of keep their eye on the moral and equality ball, if you will, and keep trying to advance the ball.
Jeffrey Rosen: [00:24:11] Thank you for reminding us of the importance of that tension between Du Bois and Trotter in, as you say, advancing the ball. Well, so much of our discussion is now interlinked with the history of the NAACP. And we now turn to the foundation, the NAACP legal defense and education fund, which you led with such distinction, Professor Shaw. I want to ask you about Thurgood Marshall, your predecessor there and his contribution, how was the LDF founded and what was Marshall's role? And then if you like in this round, maybe introduce also the important role of Pauli Murray, who Thurgood Marshall called the Bible of the civil rights movement, referring to her book States law, race, and color. And she was the co-founder of the national organization for women and Ruth Bader Ginsburg named her as a co-author of one of her important briefs. So tell us about Thurgood Marshall and Pauli Murray.
Ted Shaw: [00:25:07] As best I can, because that's a mouthful to tell, I think one of the starting places, and there are a number of them, should be a memorandum that was done. It had a very innocuous title. But it was called for short, the Margo memorandum, Nathan Marg, the white Jewish lawyer who was connected to the NAACP and he had a a plan that he wanted to put into play that eventually was one of the blueprints for the NAACP legal defense fund. Although the lawyer who we really should think about as the the father, so to speak, of the NAACP legal defense fund is someone that most Americans don't know about and, and should. One of the greatest lawyers in American history, as far as I'm concerned. And that was Charles Hamilton Houston. In the 1920s, a Harvard Law graduate and a lawyer who went into private practice. And at the same time began to teach at a night law school in Washington, DC, where he would eventually become Dean and turn it into a full-time law school. And he mentored law students there and turned Howard Law school into a factory for civil rights lawyers. His most famous mentee was, of course, Thurgood Marshall. Number one in this class, in I think 1933, second in his class was a lawyer from Virginia, Oliver Hill, who would go on t o litigate and argue the Virginia Brown case.
And many other lawyers. This lawyer, Charles Houston, was brilliant. And he conceived of the strategy to attack the separate but equal doctrine that the Supreme Court enunciated in Plessy versus Ferguson. Somewhere in that same time period came along, Pauli Murray. Pauli Murray, who has hasn't gotten a fraction of the credit she deserves for being one of the intellectual powers behind the Brown strategy. And that's why Thurgood Marshall referred to her, as you reference, as one of the great thinkers and strategists for the NAACP to whom he had to give credit and to the NAACP legal defense fund. Pauli Murray was an enormously complex individual. She applied to the law school where I teach now, UNC law school. She was denied admission because she was a woman. She lived in New York for some time there and studied in New York at Barnard. And she was absolutely brilliant. She was also one of the first openly LGBT advocates in many ways. And later in her life, she would become the first woman to be a priest in the Episcopalian church.
Pauli Murray was one of the great strategists, one of the great legal thinkers, great legal minds, and it would be wonderful if more Americans would read about her work and understand who and what she was. There are a number of good biographies that have been written in recent years and over in Durham, right next door to where I am at Chapel Hill, they've taken one of the houses that she lived in for a while and turned that into a Pauli Murray center that once we get past this pandemic, I hope many people go and visit.
Jeffrey Rosen: [00:29:10] Thank you very much for that. Thank you for inspiring all of us to learn more about the great legacy of Pauli Murray, and also teaching us about the close relationship between her and Thurgood Marshall, as both worked on the strategy that would transform the Constitution and fulfill the promise of the reconstruction amendments in Brown v board. Judge McKee, tell us more please, about Marshall's strategy. As a judge, how does that strategy of incrementalism appear to you? His decision to begin with less controversial cases and move up to public schools and also tell us about the contribution of Pauli Murray.
Judge McKee: [00:29:51] I think the strategy is brilliant. I think that at the time, it's probably the only path that would've gotten us anywhere. One thing that I think Pauli Murray, and the professor alluded to, does not get enough credit for, early on, she focused not just upon racial bias, but on gender bias. She began to advocate that the 14th amendment, its equal proetection clause, include not just race, but also gender. And it was her advocacy of trying to take it head on and not go indirectly that got the Brown course and litigation strategy to where it was. What was argued in Brown versus Board of education by Thurgood Marshall was that the historic constitutional concept of separate but equal, which had been used to try to say that the equal protection clause did not guarantee equality, legal equality, with the races, was to simply say it doesn't require integration.
As long as you have seven facilities that are equal, that's as much equality as you get under the equal protection clause. And the theory had to look at the contrasting facilities that were black only, or where black folks were relegated to and the white offices, white facilities and to argue well, look, they're not equal. I suppose the attack would not be to say you can't have a separate black law school and a separate white law school under the 14th amendment of your state institution. It would be to say, look at what this black school looks like. And then the cases, there were pictures of the libraries and the box rules and the libraries and the white schools and it was a joke by comparison. And the Supreme Court did become increasingly over time more stringent and looking at the difference between facilities and saying, look, if you're going to have separate facilies, they do have to be equal. This is not equal. And to move them toward a greater physical equality.
It was Pauli Murray who began to say, well, we have got to do is say, look, the 14th amendment requires equality in the sense of no segregation. That's what it means. It doesn't mean we can be separate but equal. It simply means that we must have the same facility, not the same equality of separate facilities. And it was her work in terms of gender in arguing that the equal prootection clause included gender and prohibited gender bias that Ruth Bader Ginsburg, and you alluded to this earlier, Jeff, when you're saying that Ginsburg credited her for this in the case called Reed versus Reed, which Ginsburg litigated, which was the Supreme Court case which held that yes, the 14th amendment equal protection clause does include proottection against gender discrimination, as well as racial discrimination.
She actually cited Pauli Murray on the brief, although she didn't write the brief, but Ginsburg was so impressed by Murray's work in the area that she credited her for it on the brief. One thing is in looking into this for our presentations, right, this is so what I've come to know and appreciate her for. So priceless and so typical. She graduated first in her class from Howard University law school. And it had been the tradition of Harvard University to accept the first graduate from Howard university into those--actually she graduated undergraduate from Howard university. Harvard had a policy of accepting the person who graduated first in her class and giving them a Rosenwall fellowship for graduate work at Harvard. However, they did not extend that privilege to Pauli Murray because she was a woman, and they told her yes, you're first in your class at Howard. And we have this policy of extending our graduate fellowships at Harvard to the person who was first in the class at Howard, but we don't accept women.
She wrote back. And she said her response, "I would gladly change my sex to meet your requirements. But since the way to such change has not yet been revealed to me, I have no recourse, but to appeal to you to change your minds. Are you to tell me that one is as difficult as the other?" I think it's just one of those priceless bits of barb sarcasm and wit that is, it's so precious. And I can't imagine what the the intellectual bluebloods at Harvard University would have thought with that when received this letter from this insolent kid, a black kid at Howard university.
Jeffrey Rosen: [00:34:18] Thank you so much for that. And thank you for finding Pauli Murray's inspiring retort. We turn now to our final pairing, Martin Luther King and Malcolm X. It is difficult to do justice to these two great giants, but I'm going to ask you each to distill the essence of their constitutional legacy. Professor Shaw, what can you tell We the People listeners about Martin Luther King and Malcolm X.
Ted Shaw: [00:34:42] Well they were two very different men who, in some ways embody the two major pieces of the struggle for freedom and equality for black Americans. Martin Luther King, a southerner. Not only a southerner, but a Southern Baptist preacher. Martin Luther King, who at the age of 26, was chosen to lead the Montgomery bus boycott and believed in the principles of nonviolence. And became the person who in hindsight and I stress, I underscore in hindsight, many Americans came to think about as the leader of the civil rights movement. I say in hindsight, because there was a lot of tension between a number of people who were in leadership roles in the civil rights movement. Not everybody believed in Martin Luther King's philosophy of nonviolence and also institutions and individuals have egos. That was true of the NAACP as led by Roy Wilkins and before that, Walter White.
And then along comes a southern thousand Christian leadership conference with Martin Luther King at its helm. There were tensions. And certainly with respect to Malcolm X, el-Hajj Malik el-Shabazz, who came out of a different historical context. His father had been a Garveyite. His father was killed, and that was allegedly by white supremacist. Malcolm X came out of the nation of Islam, which he entered while he was incarcerated. At one point he was running drugs, selling drugs. He was a pimp, a hustler, as his autobiography said, but the nation of Islam caught him while he was imprisoned and turned his life around. He began to read and think. But he did not believe in non-violence and he was very critical of Martin Luther King's nonviolent movement. There's a wonderful photograph that I'm sure all of us here have seen and many of the listeners, I hope. Malcolm and Martin, they met at one time, only one time.
And it's a wonderful photograph. They're laughing and clasping, hands smiling. And Malcolm is reported to have said that he wanted white Americans to understand who he was and see him as the alternative to Martin Luther King, if they did not support Martin Luther King's approach. But he was also critical of that approach. One can only guess what would have happened if both of them had lived, whether they would have converged. Some people think they would have, but they were powerful leaders. Malcolm X was about pride in African Americans for being black. So it was Martin Luther King, but Martin Luther King was also about a nonviolent movement to change to win the souls, really, of white Americans. Malcolm, I think, had a question about, whether those souls were either winnable or whether they were there at all. But two great leaders. Both of them tragically cut down. Both at the age of 39. Two of the great heroes of African-Americans.
Jeffrey Rosen: [00:38:20] Thank you for those inspiring thoughts. Judge McKee, you introduced the pairing of Martin Luther King and Malcolm X. You said it was prefigured by the tensions between Du Bois and Trotter. Tell us about the pairing of Martin Luther King and Malcolm X.
Judge McKee: [00:38:39] Well, as the professor mentioned, Malcolm was someone who went through a very substantial, personal introspective evolution. They went from a position from which he was actually best known and became famous, of being an ardent segregationist, of advocating that black folks have their own black communities, that integration was wrong, that we were wrong to try to integrate. He went from that position to a position that arose in large part, if not totally because of his Muslim faith, and a pilgrimage that he took to Mecca, where he saw all different shades and hues and races of people blending together harmoniously. And he began to reassess the teachings he had gotten from the nation of Islam that all white people are devils and evils, and you can't attempt to live with these people, you need to get away from them an he said as much in one of his speeches. And when he came back from that pilgrimage, he was a very, very different person.
He broke or broke openly from the nation of Islam and Elijah Muhammad. That tension had been brewin up to then because Malcolm found out some things about Elijah Muhammad, which made him question the sincerity of Elijah Muhammad and whether or not this religion that he'd been taught was really as pure and serious as he'd been led to believe. But seeing people with all different hues coming together, really crystallized it. And he took on a position which actually began, I think to parallel where Malcolm was going, of economic independence. So it wasn't so much having separate facilities and growing our own communities, but that we had to conserve and control our own dollars in our own economies. And in that sense, there was a separatism, although I didn't think about it much until just now, that continued in his evolution. And in that sense, he wasn't that much different from where Malcolm was when he began talking about the war on poverty and the poor people's campaign that he was leading when he was so tragically gunned down.
And they both thought that the way to obtain true equality in the sense of equal rights was to control our own communities, but in a kind of a different way. That economic independence was necessary. Malcolm would have put it in terms of probably, I hope this is not unfair, freedom from hunger, freedom from poverty. Malcoolm may have put it more in terms of economic independence. It may or may not come down to the same thing. And that I think is similar to, if I can go back one second to to Monroe Trotter, one of the tensions with Trotter and some of the other folks in the NAACP is the role that white folks would have within the NAACP. Trotter was very upset about white people being in positions of leadership within the NAACP. Malcolm was upset about the extent to which he saw white folks being in the position of leadership in civil rights organizations. And I was in college in the sixties, and this played out on college campuses with student groups. And there was an awful lot of debate about what role, if any, whites should have within civil rights movement, to a lesser extent, the roles that women should have.
And that went back to the discussions with Frederick Douglass and Ida B. Wells, where they saw a common vision there in terms of the role of women in suffrage organizations and the civil rights movement. I don't think you can underestimate the importance of Malcolm, especially in the North and urban areas and amongst younger folks, adolescents, young folks, Kings' real authority, and this is an overstatement, and in that sense it's inaccurate, but his real popularity and authority, arose always from the work that he did and the affinity he felt with the more rural Southern folks who's liberation he was working to obtain, but ironically, he did make a statement. And when he led an open housing march into Skokie, Illinois, that the hostility in the Bisbee, that greeted him marching in Illinois to open up the housing was more violent than more vicious than anything he encountered in Birmingham or Montgomery or the deep South.
So, he certainly in that sense, he had a force in the North too, but Malcolm was able to reach a group of folks. And basically I think, don't say militarize them, but get them to deal with their own blackness and their own powerlessness in a way that Malcolm was simply not able to, because the messages were so very different. And Malcolm's background that the professor mentioned was a background and that allowed him to be able to reach a group of folks that did not have the same common thread with Malcolm. He was an amazing speaker. I heard him speak in a church. It was a church out of Moscow a week before he was assassinated. And I cannot remember that much of what he said, but I walked away from that being just absolutely awestruck by the message and the way he conveyed it. He was an amazing orator, as was King, but in very, very different ways.
Jeffrey Rosen: [00:43:46] Wow. What a remarkable privilege to have had that experience. Well, it is time for closing thoughts in this wonderful discussion, which I know will inspire We the People listeners to read and learn more about all the great figures we've talked about. I'll just close by asking each of you, if you had to recommend a single work of the figures we've talked about, an autobiography or a collection of speeches, what would it be? Professor Shaw.
Ted Shaw: [00:44:14] Well, I'm going to take an easy out with resect to Martin Luther King in answering that question as a single volume of his writings and speeches called a Testament of Hope. If you can only read one volume. But there's also, so far, seven volumes of the Martin Luther King papers that are being published out of Stanford. And I think there's so much in there. It's a rich treasure trove. Because King isn't the, you know, he isn't as simple as most Americans have been taught to think that he was. His legacy is very varied and complex. There are two works, more recent works, we've of course always known about the autobiography of Malcolm X, co-written with Alex Haley. Marin Maribel of Columbia University did another biography of Malcolm X. He passed several years ago. But just recently Lester Paine, a juornalist in New York has also published a new biography of Malcolm X that's truly worth reading.
Jeffrey Rosen: [00:45:22] Great. Thank you so much for both of those recommendations. Judge McKee, last, word to you. What autobiography or collection of speeches or writings would you recommend to We the People listeners?
Judge McKee: [00:45:34] Well, assuming it's to Malcolm Payne's work, I'd strongly recommend also his speeches which, I'm pretty sure are available probably online, maybe even via YouTube. I'm not sure. His balance or the bullet speech is remarkable. Especially now, when we're in an age of disenfranchisement and some of the tension or fervor that's rising around that. He gave that speech before he went to Mecca and while he was with the nation of Islam, so it doesn't capture the entirety of Malcolm, but, I don't think any one book would with the possible exception of the books that the professor has mentioned. There's a new book out and I can't remember the name of the book or the author;I haven't read it yet. But I just heard from a friend of mine who is a scholar and historian, that this book was out, this new biography of Monroe Trotter.
That should be pretty easy to track down. And as soon as I get some time, I'm going to make it my business to track it down. Pauli Murray has several books. The one that was mentioned earlier by the professor in terms of the the history of states' laws and racism is out in paperback. I tried to find that not too long ago. It's not available on Kindle or in hardcover, but it is available. Frederick Douglass, certainly the life and times of Frederick Douglass, his own autobiography, and some of the things that came out after that, I think two or three books were published after after he died.
Jeffrey Rosen: [00:46:54] Wonderful. Thank you so much Professor Ted, Shaw and Judge Ted McKee for an inspiring discussion of these great African-American constitutional visionaries. Thank you for the reading recommendations, for inspiring all of us to learn more and to grow in wisdom and understanding by familiarizing ourselves with heroic struggles of these great Americans. Professor Shaw, Judge McKee. Thank you so much for joining.
Judge McKee: [00:47:24] Thank you.
Ted Shaw: [00:47:25] Thank you.
Jeffrey Rosen: [00:47:29] Today's show was engineered by David Stotz and it was produced by Jackie McDermott. Research was provided by Lana Ulrich. Please rate, review and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for a weekly and timely dose of constitutional debate.
And always remember, friends, that the National Constitution Center is a private nonprofit. We rely on the generosity, passion and engagement of people from across the country who are inspired to learn by our non-partisan mission of constitutional education and debate, you can support the mission by becoming a member at constitutioncenter.org slash membership, or give a donation of any amount to support our work, including this podcast at constitutioncenter.org forward/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
