MLK’s Constitutional Legacy

In honor of Martin Luther King Jr. Day, this episode celebrates King’s life and work, his vision for America, and his fight to pass landmark civil rights laws and realize the promises of the Constitution. Civil rights and constitutional law experts Michael Klarman of Harvard Law and Theodore M. Shaw of UNC Law join host Lana Ulrich to explore King’s constitutional legacy, shed light on the relationship between litigation and activism, and contemplate whether the Civil Rights Movement would have happened without King.

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PARTICIPANTS

Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School specializing in constitutional law and constitutional history. Klarman’s first book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality received the 2005 Bancroft Prize in History.  His other books include: Brown v. Board of Education and the Civil Rights Movement and Unfinished Business: Racial Equality in American History.

Theodore M. Shaw is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law, where he teaches civil procedure and advanced constitutional law/14th Amendment. He served as the fifth director-counsel and president of the NAACP Legal Defense and Educational Fund, where he worked for over 26 years. He was also formerly a visiting scholar at the National Constitution Center and co-wrote the Interactive Constitution explainer on the 14th Amendment’s Equal Protection Clause.

​​​​​​Lana Ulrich is the Director of Content, Constitutional Fellow, and Senior Counsel of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

• CNN Landmark Cases – Plessy v. Ferguson with Michael Klarman and Theodore M. Shaw
• Gayle v. Browder (1956)
• Brown v. Board of Education of Topeka (1954)
• The Civil Rights Act of 1964
• The Voting Rights Act of 1965
• The Fair Housing Act of 1968
• The Equal Protection Clause by Brian Fitzpatrick and Theodore M. Shaw

This episode was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Jackie McDermott.

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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.

Lana Ulrich: [00:00:00] Welcome to We the People a weekly show of constitutional debate. I'm Lana Ulrich director of content at the National Constitution Center. Jeffrey Rosen is away this week. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the Constitution among the American people. This past Monday at the NCC we celebrated Martin Luther King Jr. Day with service projects and performances including a live reading of Dr. King's famous I Have a Dream speech. In this episode of We the People we continue the celebration as I sit down with professors Ted Shaw and Michael Klarman to discuss Dr. King's constitutional Legacy. We'll discuss his life and work, his constitutional vision, and his contributions to civil rights laws and the Constitution including the legacy of the landmark civil rights laws he fought so hard to pass. I'm honored to be joined by these two leading civil rights and constitutional Scholars who both appeared in the C-SPAN landmark cases episode on Plessy versus Ferguson, which I encourage all of our listeners to check out after the show at CSPAN.org. Michael klarman is the Kirkland and Ellis professor at Harvard Law School specializing in constitutional law and constitutional history. Professor Klarman's first book From Jim Crow to civil rights: the Supreme Court and the struggle for racial equality received the 2005 Bancroft prize in history. His other books include Brown versus Board of Education in the civil rights movement and Unfinished business: Racial equality in American history Mike thank you so much for joining. 

Michael Klarman: [00:01:32] Thanks for having me Lana.

Ulrich: [00:01:34] Ted Shaw is Julius Chambers Distinguished professor of Law and director of the Centre for civil rights at the University of North Carolina school of law where he teaches civil procedure and advanced constitutional law and the 14th Amendment. He served as the fifth director Counsel and president of the NAACP legal defense and education fund where he worked for over 26 years. He was also formerly a visiting scholar at the National Constitution Center and co-wrote the interactive constitution explainer on the fourteenth amendment's equal protection Clause. Ted It's great to have you with us. 

Ted Shaw: [00:02:05] Good to be with you. 

Ulrich: [00:02:06] Ted so I'll start with you. Can you tell us a little bit about Dr. Martin Luther King? When was he born? Where was he from? And how did he get started with civil rights work? 

Shaw: [00:02:17] Martin Luther King Jr. was born in 1929 so he would have been 90 on January 15th. He was born in Atlanta, Georgia. His father was a prominent Minister and he got into civil rights because he was assigned to the Dexter Avenue Church in Montgomery, Alabama and happened to get there right around the time that the Montgomery Bus Boycott started, when now-famous Rosa Parks refused to give up the seat and so he was a young Pastor there and because he was a new pastor, he was chosen to be the head of the churches for purposes of supporting this effort. 

Ulrich: [00:03:16] Mike is there anything you'd like to add about Dr. King's early life and anything you want to tell us about the status of the Civil Rights Movement at the time? 

Klarman: [00:03:25] So the boycott started in December of 1955 which was about a year and a half after the Supreme Court decision in Brown versus Board of Education. And as Ted was saying it was important that Martin Luther King was new to the city of Montgomery. He was 26 years old and one reason why he was chosen to head this organization that was orchestrating the boycott, the Montgomery Improvement Association, was simply that because he was young and relatively new to town, he hadn't yet had an opportunity to make enemies in the city; an older more senior pastor might have had a divisive effect on the community because there would be some people he'd had an opportunity to alienate. So it was actually just an instance of being in the right place at the right time. The fact that King was young and relatively unknown and new to the city actually enabled him to attain this position that ultimately became prominent because the boycott turned out to be a landmark event in the Civil Rights Movement. It lasted for a year, thousands of African-Americans in Montgomery participated; literally the eyes of the nation and to some extent of the world were focused on Montgomery and you had this young obviously very charismatic or rhetorically gifted Minister who was the head of the association that was orchestrating the boycott. So it really is an instance where forces of fortuity came together and enabled him to have this position that ultimately he was able to transform into something pretty important. 

Ulrich: [00:04:58] Ted there was a couple of cases that came out of the Montgomery Bus Boycott. Can you tell us about some of them including Gayle versus Browder? What was the effect of the outcome of this case and of the boycott to the civil rights movement and also the litigation strategy against some of the institutionalized laws mandating segregation?

Shaw: [00:05:18] Well, the Browder case went to the Supreme Court a year after the boycott began and by that time, the backbone of segregation and public transportation in Montgomery really had been all but broken but this is a wonderful example, I think about it often when I think about the relationship between activism and litigation because it was the decision by the Supreme Court in Browder vs. Gayle that was the coup de gras that ended the segregation of public transportation of buses in Montgomery, Alabama and Browder was in some ways a follow-up to Brown versus Board of Education, even though Brown on his own terms was about public school education, but the principle of segregation and racial discrimination and its relationship to the Constitution was no less applicable as it turned out in the context of this bus boycott and that led to another series of cases many of them decided by the Supreme Court very quickly, with just a cite to Brown and then to Browder, that desegregated libraries and schools and other public facilities even some years before the 1964 Civil Rights Act was enacted and so the litigation was an important part. You know, Fred gray was a local attorney and the NAACP legal defense fund in bringing about that result.

Ulrich: [00:07:14] Mike what else can you tell us about Browder and as Ted said the Brown decision? Did Dr. King have any reaction to that. What was his views on both of those cases? 

Klarman: [00:07:26] Brown was an incredibly important event in the African-American Community. Black newspapers treated it as the most important development since the Emancipation Proclamation. Martin Luther King often wrote about the important role that federal courts played in the liberation of African Americans from the system of Jim Crow as Ted was saying. I just reiterate Brown was written in such a way that it was very narrow, it emphasized the role of education and didn't obviously have any implications for segregation in other contexts, but the Supreme Court in a rapid series of decisions said it applied in just about every context in which the government was responsible for segregation. And in Montgomery, it wasn't simply a policy of the local bus company to segregate the races on buses. It was actually something that was mandated by local law by state law and I think by local ordinances well. So the Supreme Court pretty quickly decided that Brown applied also to public golf courses, public beaches and things like public transportation. After the Browder decision, there was some competition between the NAACP and the southern Christian leadership conference, which was the organization that King helped found with other Southern ministers as to who actually deserved the credit for desegregating the buses in Montgomery. The NAACP claimed that it was the court decision that provided the final blow to segregation and I think a lot of other people, activist ministers wanted to claim that it was more the result of the protests and the thousands of African Americans who had walked miles to work rather than riding the buses. So this was something that will become more important in the early 1960s as debates would erupt over how much should be invested in litigation and how much should be invested in other strategies of protest like sit-ins and boycotts, street protests and so forth. But Martin Luther King felt that the federal courts were very important to the movement, that this was a place where African-Americans could walk into a building and have some sense that they might be able to secure just outcomes, which was certainly not true at the time of state courts in the south.

Ulrich: [00:09:51] Ted can you tell us a little bit more about the relationship between the southern Christian leadership conference and the NAACP and LDF where you worked for many years? As Mike was saying there seemed to be a little bit of tension. Did they work together in conjunction, were their efforts coordinated or what was the relationship between the two organizations?

Shaw: [00:10:11] Well all of the above, yes, there were tensions. There were times in which activists felt like the lawyers were getting in the way, the lawyers felt sometimes that they knew best what was going to resolve these issues of segregation because they thought these were constitutional matters. But in the late fifties I'd point out there was one of the early marches to Washington DC, a pilgrimage it was called, it was in maybe 58, 59 and it was no coincidence that it was scheduled for the same day that was an anniversary of Brown versus Board of Education, May 17. That was no coincidence and it was an indication of how much Brown meant to Martin Luther King and other civil rights activists. The reality is that that tension- those tensions long existed. They never really went away between activists and litigators and when we talk about credit, I always say that institutions and individuals have egos but with respect to Brown or whether we're talking about Browder or later on, whether we're talking about the march from Selma to Montgomery it was not a matter of either activists or litigators, it was both. And even though they were in tension, some tensions are healthy tensions as it turns out. Both were necessary the litigators and the activists.

Ulrich: [00:12:00] So Mike, Dr. King gave many very famous speeches and a few in particular where he expressed his constitutional vision it seems of equality, for  instance in letter from the Birmingham Jail etc. Can you talk about what Dr. King's vision for equality was and how did it jive with let's say what the framers of the Reconstruction amendments imagined that the Amendments would achieve?

Klarman: [00:12:27] Sure, so start with the framers of the Amendments. The framers of the 13th Amendment which ended slavery, the 14th Amendment which guarantees equal protection and due process and citizen protection for privileges and immunities of citizenship, the Fifteenth Amendment protects against disfranchisement based on race. They actually had a narrower vision than I think most people today or certainly Martin Luther King's vision of racial Justice was. The Republican Party had some people who've been denigrated historically as radicals because radical is a pejorative term in the American political lexicon, but they were only radical in the sense that they actually did believe in actual racial equality - people like Charles Sumner the senator from Massachusetts, people like Thaddeus Stephens the congressman from Pennsylvania - they actually believed in full racial equality. They didn't believe that the law ought to distinguish based on race. They had no problem eliminating laws segregating schools. They had no problem enfranchising African-Americans, enabling them to sit on juries and some of them actually favored land redistribution in the South, taking property away from slave owners, redistributing it to former slaves so that they would have a measure of equality and a real chance to make progress in the future. That however was not the dominant view of the Republican party and there were not enough of those people to put their Vision into the Constitution. So the people who actually were responsible for the 14th Amendment wanted to guarantee basic civil rights without regard to race. So they wanted to protect the right to contract, the right to own property, the right to sue in court, but they actually drew a line short of what we would regard as full Racial equality. They were okay with school segregation which existed in most states at the time. They were okay with bans on interracial marriage, many of them with regard to the 14th Amendment were still okay with excluding blacks from the right to vote and the right to hold office, which is why the Fifteenth Amendment was necessary a couple of years later, but even with the Fifteenth Amendment, they didn't go as far as some of them would have liked, weren't able to forbid literacy tests for voting. They weren't able to forbid poll taxes or property requirements. So once the Supreme Court and decisions like Brown versus Board of Education starts to get going with the Civil Rights agenda, the Court's actually going further than what the people who wrote the Amendments after the Civil War intended. Now, of course King had a very broad view of racial equality. He didn't think the government ought to be in the business of any sort of race discrimination, but certainly by the mid-1960s and by the end of his life, he had a broader vision of constitutional equality than simply ending race distinctions in law. That is he was not satisfied with simply forbidding racial segregation in schools, forbidding race discrimination with regard to public accommodations. He had started to promote a broader agenda of economic equality and he thought that was necessary if society was ever going to accomplish true equality. You had to move beyond ceasing to discriminate based on race in law and you had to provide a measure of full equal employment opportunity, guarantee certain measure of equality for people at the bottom of the country's socio-economic rungs. But letter from the Birmingham Jail which you talk about is a response to ministers- ministers, rabbis, Catholic priests who had criticized King in Birmingham for going too far too fast, for not being willing to wait until the new administration had taken power; there had just been a local election; Bull Connor the notoriously racist police chief had run for mayor. He'd been defeated. Moderate- so-called white moderates were counseling King you ought to wait and negotiate with the new Administration and King's letter is a statement of frustration at these moderates who are telling him just wait a little bit longer, you know don't go and demonstrate in the streets, try to negotiate and King's response, which is I think devastatingly effective is look, we've been waiting a hundred years literally since the Emancipation Proclamation. How can you be counseling us to show greater patience when nobody in the history of the world has ever given up privilege and power without somebody pushing against them. Nobody voluntarily concedes that the status quo is unjust and we'll just give you what you want. You always have to fight and now the movement has demonstrated that it knows how to fight effectively by getting out in the streets and protesting and trying to get the white police force to use violence when it's transmitted nationally through television, which will shift national opinion, so that's what's King is saying - don't counsel patience and don't tell me that they're going to negotiate with me unless I force them to give up something because nobody ever does that.

Ulrich: [00:17:51] Wow that's fascinating. So Ted, do you agree that the vision of racial equality as articulated or as expressed by the framers of the Reconstruction amendments was indeed narrower than that Dr. King was articulating and if so was it Dr. King who in fact, you know expressed this broader vision of racial equality, or when did that actually come about?

Shaw: [00:18:17] Well, there were always those who struggled from within the black community who had a more radical vision of how that struggle should go forward and what its aim should be, but Michael is absolutely on point when he talks about the narrow vision of the framers of the post Civil War Amendments, the reconstruction amendments. That's absolutely right - King in many respects was more radical than most Americans feel comfortable recognizing or they don't know enough about them to really recognize it. His vision of Justice in the United States in the 60s grew from just segregation to talking about, as Michael was referring to, economic justice, you know his opposition to the war in Vietnam, you know alienated him from a lot of the people who were part of the civil rights movement and his last campaign, you know, the Poor People's campaign that he never really lived to see but even the struggle that lured him to Memphis on behalf of sanitation workers for fair pay and working- better working conditions; there were elements of a more radical vision of what America ought to be. And most Americans now, do they honor Martin Luther King because he was a martyr, not necessarily because of what he really said, did, stood for and advocated, but it was a more Progressive and radical vision of social justice and certainly the application of the the Constitution. I was remembering as I was listening to Michael talking one of his great speeches when he talks about if if we're wrong, then the Supreme Court was wrong and Brown versus Board of Education, if we're wrong, and then he has a series of things that he posits to say that our struggle is a righteous struggle. It's the right one, but it was a more radical vision of what America could be. If he were alive today- forget whether he was alive today, just go back and look at what he advocated during his lifetime and think about the huge gap that exists in income and wealth in this country. He was talking against that 50 years ago and he would be talking about that today. Most Americans don't really recognize his radical vision for social and economic and racial Justice in this country.

Ulrich: [00:21:28] Michael there were three key laws that were passed and that came out of the Civil Rights Movement right after Dr. King's assassination: the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. Can you tell us a little bit about these laws and did- was Dr. King's view that because you know, the Reconstruction amendments were either so narrow or the promise of equality was not being fulfilled that it was important to enact legislation specifically to ensure equality? Was that Dr. King's position?

Klarman: [00:22:03] So there's a lot to talk about there. The statutes are necessary, mostly not entirely because the Constitution is limited to constraints on state action. So the Fourteenth Amendment says no State shall deny equal protection, the Fifteenth Amendment says no State and Congress- neither a state nor Congress can disenfranchise somebody based on race, but a lot of the Discrimination that has an effect on the world comes from private policy not from government policy. So the 1964 Civil Rights Act says private employers can't discriminate based on race; privately owned places of public accommodation, like restaurants and theaters, can't discriminate based on race. The Fair Housing Act says private real estate companies, private landlords, homeowners can't discriminate on the basis of race in the sale or rental of property. The Constitution, based on its clear language does not cover those things. So you need statutes passed by Congress if you want to forbid race discrimination in the private sphere, so that's the first point. The '64 Civil Rights Act covers race discrimination in places of public accommodation, it covers race discrimination and employment, it authorizes the Attorney General of the United States to bring lawsuits challenging School segregation which is a way of lifting the burden from private litigants and the NAACP. It also says any entity that receives Federal money is barred from violating the ban on Race discrimination in the Federal Constitution so Southern school districts that go on segregating are going to lose their Federal money based on title six of the '64 Civil Rights Act. The '65 Voting Rights Act mostly guarantees that's already protected by the Constitution: the right to vote. But because southern states have gone to such extraordinary and creative lengths to obstruct black suffrage it adopts a series of extraordinary procedures to try to make the right really effective. So it says for example to Southern states, you know, we don't trust you anymore because you've gone to such extraordinary lengths to disenfranchise black people. We're going to make you run any change you want to make in your voting laws by the justice department or a federal district court in Washington, DC rather than the burden being on some black plaintiff to challenge a change in voting rights law. We're going to put the burden on you to show that any changes you make do not have the effect of disadvantaging African-American voters. So the laws are necessary because they're going to do things that the Constitution doesn't do. The other point I wanted to make is simply each of these laws in some sense is responsive to what king and his allies in the Civil Rights Movement are doing. So the Kennedy administration was not going to pass any civil rights legislation until after the Birmingham demonstrations in the spring of 1963. It's clearly Bull Connor and the police dogs and the fire hoses that gets John F. Kennedy to go on national television and declare the issue of civil rights is as old as the scriptures and as clear as the Constitution and finally produce a Civil Rights bill which then becomes the Civil Rights Act of 1964. It's the demonstrations in Selma and the awful violence at the Edmund Pettus bridge on March 7, 1965 that leads President Johnson to go on national television and address a joint session of Congress the next week calling for voting rights legislation, which he quite clearly was not going to do before Selma. And then finally with The Fair Housing Act, something like this had been proposed in 1966 and it was actually incredibly politically controversial. It probably costs Democrats a bunch of House seats in the fall of 1966 and it was abandoned then, it was reintroduced early in 1968, but it's probably the assassination of King on April 4th 1968 that ensured the passage of the fair housing act. So it's really pretty extraordinary that on each of these Landmark pieces of civil rights legislation, it's the violence that was used in response to civil rights demonstrators culminating in the assassination of Martin Luther King that makes these three particular pieces of legislation possible.

Shaw: [00:26:44] If I may, the great irony is that Martin Luther King of course was an advocate for nonviolent resistance to racial and social injustice. And as Michael just indicated it was the violence, it was those occurrences that made the passage of those laws, the enactment of those laws possible. Every piece of major civil rights legislation in the 1960s, it was bought and paid for in blood, and it was certainly Martin Luther King's assassination that broke the logjam that had existed in Congress that made it possible to enact the Fair Housing Act and the violence after his assassination that really racked American cities across the country. And so that's a great irony in some ways. Martin Luther King knew that the country's exposure to the ugly violence that undergirded racism or the enforcement of segregation would trip the conscience of the nation. He relied upon that and it was certainly true even up to the time of his death. 

Ulrich: [00:28:10] So Ted after they were enacted were these laws effective at addressing some of those issues and challenges that Michael outlined?

Shaw: [00:28:18] Well, they you know, they changed the country in many ways. It's not to say that those pieces of legislation resolve all these issues forever. Here we are in 2019, the 400th anniversary of the arrival of Africans at Jamestown and we're still struggling with that that great demon that has plagued our country even before the nation was born. Even after the election twice of the first African-American president, we're still dealing with issues of segregation in schools and housing, still dealing with police violence with black people at the receiving end. We're still dealing with the with the Demons of- in spite of the fact that because of Martin Luther King and those who were part of the Civil Rights Movement, the country is better than it was before. All those victories were won, but it's a reminder of how important it is both for activists and also for those of us who believe in and enforce the Constitution to never rest. These battles don't end, all these- they haven't ended yet. And so this- as I say the struggle continues.  

Ulrich: [00:29:53] Michael what are some of the lessons that you take away from the story of King's life and death and the Civil Rights Movement particularly about how social and political movements can affect constitutional change. What is your view on that? 

Klarman: [00:30:06] It's a big question. I think you know, there are optimistic and pessimistic lessons. I agree with everything Ted said about how the changes have not been as great as one would have wished and one might have expected. I think if King were alive 50 years later, he would be disappointed. He would be disappointed but he wouldn't be hopeless. I think anybody fighting for Progressive racial change in the middle Decades of the 20th century understood that it was going to be a very long and difficult and frustrating process. King would be thrilled that the United States elected a black man as president. I'm not sure he would have predicted that that would happen within 50 years actually, 40 years, 41 years after his death, but the United States followed a black president with an openly racist president. And I think that shows you what a complicated, what a complicated country it is. One lesson to draw, a kind of pessimistic lesson is that the country only has a limited attention span and a limited ... To Progressive Racial change, I think that's the lesson of the first reconstruction and of the second reconstruction, which is a label that historians often give to the Civil Rights demonstrations and landmark legislation of the 1960s. This was true in the decade after the Civil War. There was a limited period of time in which Northerners who were mostly White and the national government was willing to use the federal military and the force of the federal troops to guarantee protection for the rights, civil rights and political rights, of the recently freed slaves in the South. They were  using- willing to use the military to register black voters. They were willing to use the justice department with the support of the military to prosecute Ku Klux Klan violence against black voters and for a limited period of time they were able to elect governments with large numbers of black office holders and ninety percent turnout rates among African-American males and they affected some genuine change. But within a decade Northerners kind of lost their commitment, they lost their enthusiasm. They lost their patience and reconstruction ended with the presidential election of 1876 and everything that had been accomplished was pretty much nullified. Segregation was introduced, African Americans lost the right to vote, they lost the right to serve on juries by the 1880s 1890s, a hundred blacks a year or being lynched in the south. Pretty much complete nullification of the Civil War amendments. We kind of repeated that in the 1960s. We have this extraordinary burst of enthusiasm for civil rights. We get this Landmark civil rights legislation. We have President Johnson making these extraordinary speeches in support of affirmative action, in support of the Voting Rights Act. But then through a series of events, the Vietnam War was a big part of it, the rise of black power which frightened many Americans, the urban riots, violence for a variety of reasons, the Civil Rights Coalition broke apart. There was a conservative backlash, Richard Nixon was elected president, being tough on crime, which was kind of a code word for racism, a way of making racism polite, began to attract a lot of political support and you didn't get a lot of- a lot of movement in the decades after that. School desegregation - a lot of progress under title six of the 1964 Civil Rights Act, but after about 1980 you start to resegregation of the schools. The Supreme Court strikes down the key provision in the Voting Rights Act in 2013, Southern States immediately enact new laws to try to restrict African-American access to the ballot. In 2018 Stacey Abrams essentially has a gubernatorial election stolen from her by race-conscious measures that make it difficult for African-Americans to vote, voter purges, voter ID laws, stringent registration laws, essentially she had an election taken away from her because African-Americans in the state of Georgia were not permitted free and fair access to the polls. So that's extraordinary right that the country could have an African American president and then his successor in office is a racist president. That's a extraordinary thing for the United States to have experienced. 

Ulrich: [00:34:40] Ted same question to you. What lessons do you draw from the legacy of Dr. King, the civil rights movement and about how social and political movements can affect constitutional change?

Shaw: [00:34:52] Well, I like many I have long loved Dr. King's statement that the moral Arc of the universe is long but it bends toward Justice. That's such a an articulation of a wonderful optimism about change. The idea that over time we are invariably getting- well as much as I love that statement, I think the events of the last few years and I think much of it, I think this is what Michael is also saying, much of it was a reaction to the election twice of an African-American president, but I think we've learned that history doesn't go in Only One Direction, you know, it's- we can have reversals and we can go sideways. And there's a great threat to not only racial Justice in this country, but to the fundamental precepts of democracy, to democratic Norms that has been posed and it's being posed over the last two years. And so yes, I think Martin Luther King's life was one of the great stories of progress in this country, although he himself struggled. Toward the end of his life, he was often depressed towards the end of his life. He tried to go north and address housing segregation in Chicago and said that he never saw the kind of racism and hatred in the South that he saw in the north. Now maybe, maybe he was exaggerating a little bit then but the point was that he was very discouraged about what he saw and what he saw with respect to the Vietnam War but also the loss of support even among those who began to embrace more radical visions of change in the country and to turn away from non-violence. He was certainly depressed toward the end of his life and yet there's a reason that we as a nation I think have come to idolize him whether we should or not. I think that it's because he spoke to the highest aspirations as individuals and as a country, you know the idea of non-violence, the idea of racial Justice, the dream he articulated which in some ways has become all that people know about and they don't know about the rest of that speech, even that he talked about a bounced check. He talked about nightmarish America and, my words not his there, and it had been more than two weeks after that speech, the March on Washington, four little girls killed in Birmingham Alabama at the 16th Street Baptist Church when it was bombed and how that discouraged not only Dr. King but so many others in the civil rights movement. And so yes, we've come to embrace him as articulating a dream, but he also struggled against, as I said earlier, the worst demons in our country and we still have not proved yourself completely of those demons. They're still here. So the lesson is I think one of the need to in many ways articulate our highest vision of Civility and as he loved to call it the Beloved Community, but at the same time we have to be vigilant. We know that that hasn't been accomplished, the idea that his four little children would live in a country in which they would be judged by the color of their skin not by the color skin rather by the content of their character. That's been cited by people against affirmative action and race conscious attempts to achieve equality. I don't know if anybody now would they open their mouth though and say that we've accomplished that as a reality, you know, we're still very much and not only a color conscious but a deeply racist America, even though we Aspire for a lot more and a lot better than that.

Ulrich: [00:39:49] One final question before I move to closing arguments. Ted you've spoken before about your relationship with some members of The King Family. Do you want to share some of your personal experiences about knowing Dr. King's Daughter? 

Shaw: [00:40:02] You know Yolanda King, Yoki, was one of my dear friends. I knew her since we were in our first year of college, her at Smith, I at Wesleyan and we became very close and I came to know all of the family, you know from her grandfather daddy king and certainly through Coretta Scott King and the other siblings. I think about the privilege that it has been to know her and sadly she passed away some years ago. I remember when she died she died of heart failure, I really thought about her father and how when he was autopsied the doctor said that his heart was twice the size of normal heart of a man his age and I thought there's no way - I thought about it this week - there's no way that Dr. King would have lived to 90. He wouldn't have lived to old age, you know, and it was just stress and the pressure of the work that he did that took him away from us so long ago as much as it was the assassination. But I often well, I rarely I should say, I really raised her father to her. Anytime we talked about her father it was because she raised him when she did periodically, you know, and she talked about him. He was one of the great Americans, he was one of the great citizens of the world and it has been an honor to know his family, but I also know that we've got to move beyond our our idolizing of Dr. King. He certainly earned a great place in history, but we can't think about the kind of one great man, one great woman version of History, who's going to save us because in fact King was one of many people who engaged in the Civil Rights struggle. We all have to take responsibility about where we are right now which is in a good place and struggle to make our country and our world better. Corny as that sounds I believe it and continue to believe it and can't let it go. 

Ulrich: [00:42:40] Great. That was wonderful. Thanks for sharing. Well, it's time for closing thoughts in this important and moving conversation and Michael I'll start with you. What is Dr. Martin Luther King's constitutional Legacy and why should Americans learn about it? 

Shaw: [00:42:56] So let me make a couple of different points quickly. First King was an extraordinary individual and there are moments in history when it makes a big difference that that particular individual be present on the scene. If Abraham Lincoln had not been president of the United States during the Civil War there is a very good chance that the war would have had a different result, and if Martin Luther King had not been the leader of the Civil Rights Movement from 1955 to 68 it's very possible that that movement would have had a different resolution. Just think for example of the extraordinary nature of a man who has white racists blow up his home with his family inside and then goes out on his front porch and says to a swelling crowd of very justifiably angry black people, I want you to go home. I want you not to resort to retaliatory violence. That's an extraordinary thing to accomplish and I think it mattered tremendously that a charismatic leader who was so committed to the principle of non-violence was at the head of a movement when he was. Second point is, and I think this is incredibly important and this is consistent with what Ted's been saying: one has to be optimistic and hopeful about the ability of extraordinary social reform movements to accomplish change. Many of these movements the abolition movement against slavery, the women's suffrage movement in the late 19th early 20th century, the gay rights movement, these movements have taken decades to accomplish many of their goals. For participants in the movement it must have been an incredibly exasperate and frustrating experience early in their history. It would have looked like they were never going to accomplish what they ended up accomplishing and one just has to keep in mind especially at a time that there's so much to be depressed about, so much to be alarmed and pessimistic about that it is possible for these movements to accomplish dramatic social change. Third point is you can never relent once you've accomplished your goals. The moral Arc of the universe may bend toward justice, but it has to be pushed in that direction and it can bend back when people stop pushing. So it's easy for things to go in the opposite direction. You should never rest on your laurels. You should never be confident that you- because you've accomplished the Voting Rights Act that black political power has been reliably. It's always possible a generation later for the Supreme Court to strike that down, for a political party for whom African-Americans rarely vote to decide that suppressing their votes is in their interest in maintaining power. You always have to continue to fight for what you've accomplished. And then the last point is simply yes, the strategy of non-violence was the strategy that King used and strategically it is undoubtedly the right strategy, but often It is by provoking Violence by your opponents that you end up winning the day. It is Bull Connor and Sheriff Jim Clark of Dallas County who were in a sense the heroes of the civil rights movement because by using attack dogs and fire hoses, they put that violence on television and they demonstrated that violence lay at the core of white supremacy, and that made it repulsive to Northerners. And you see that today with the black lives matter movement, whether it's a very effective strategy to mobilize around violence and around police killings of innocent black people and that's an opportunity. There's a lesson in there about how extremism on the other side when provoked can end up producing useful consequences for the movement for reform that you're trying to further.

Ulrich: [00:47:00] Ted last word and same question to you. What is Dr. King's? constitutional Legacy and why should Americans learn about it?  

Shaw: [00:47:08] Well I would say that his constitutional Legacy is that he believed in the Constitution, he believed in the words in the Preamble of the Constitution "we the people" but he believed that we had to insert black and brown people into we the people as the lawyers who litigated the cases on the road to Brown and many of those other civil rights cases, but he believed in America in spite of America's failure to honor very often African-Americans. He believed in the Constitution. He talked about the constitution in his speeches. And if you look at his speeches, his speech at the March on Washington, he was citing some of the Great- the great songs that were Americana, you know my country tis of thee, you know, the ... Mountains Etc. You know, he talks about Let Freedom Ring. He believed in this country. I think that was his belief in the country and in the constitutionalism that undergirded this country. I perhaps might take some issue with something that michael said but I need to think about it, about whether I really take issue or whether it's just a different slant on it and I talked about how we have to look beyond the great man and great woman theory of history. And I agree with Michael about Abraham Lincoln and Martin Luther King, but at the same time I believe very deeply that the existence of Oppression Invariably breeds people who have extraordinary virtue and character and they show extraordinary characteristics that otherwise wouldn't be evident. I saw it when I was visiting South Africa over the years of transition from apartheid to a majority rule government. And I also saw how after that transition some of the people whom I know to be so extraordinary in some ways returned to living ordinary lives. And I think that was true in the Civil Rights Movement, but I think about, it wasn't just Martin Luther King who had that reaction to violence on the porch of his home. I think about Julius Chambers the great civil rights lawyer. I hold the chair here at UNC endowed in his name and Julius had his house fire bombed, his home fire bombed, his office, his car. Julius was so low-key. And his way of getting back at those who engage in that kind of hatred and violence was to use the law the Constitution, civil rights law. There was so many people who believed in reacting to hatred and violence in ways that were not violent. I don't know that- I don't think Michael and I really have a disagreement about this but I think there are so many other people who did believe in you know, I think about the Edna Bakers of the Civil Rights Movement. Some Heroes, you know, I think about many of those nobody knows, many of them women, and as much as Martin Luther King, but not as famously, they're responsible for the changes in our country. I honor Martin Luther King, I love his legacy and would have loved the man if I had come to know him. I love him as someone I didn't know, as one of my heroes but I love many other people who were engaged in that good fight that good struggle also, so they're all about America and loving our country.

Ulrich: [00:51:45] Thank you so much professors, Michael Klarman and Ted Shaw for joining me to discuss. Dr. King's life and constitutional. And for helping to educate all Americans about it. Michael, Ted, thank you so much for joining. 

Klarman: [00:51:57] Thank you. 

Shaw: [00:51:59] Good to be with you.  

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