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tv   Discussion on the Legacy of Loving v. Virginia  CSPAN  August 11, 2017 1:34am-2:50am EDT

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in loving v. virginia made it unconstitutional to prohibit interracial marriage. up next on american history tv, a discussion on the context and legacy of loving v. virginia, the complexities of the case and how it affected similar legal challenges. the virginia historical society hosted this 70 minute discussion. jeter was not a white woman. richard loving all agreed was a white man. so virginia state law not only rendered they're 1958 marriage illegal but also had a penalty of at least a year in prison for it. but the judge chose to suspend their prison sentences if they agreed to leave the state. after a few years of exexile, loving sought legal assistance to let them return home to virginia. today our speaker will be focusing on the suit that mr.
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and mrs. loving brought, actually making it to supreme court. it made a challenge that simply because they did not share had same racial identity they could not marry and if they married, they should be imprisoned for doing so. a ruling whose echoes can be very heard clearly in the politics and jurisprudence of today. peter wallenstein is a professor of history at virginia tech where he has taught for more than 30 years. before that he taught in new york, canada, japan and korea. his teaching has brought him a number of awards. in addition to his role as a distinguished teacher, peter has long been a leading historian of virginia and the american south.
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his various books include a history of virginia entitled "cradle of america" coming out at the 400th anniversary of virginia. a history of virginia for fourth graders. and path breaking books on policy on 19th century georgia and conflights and change in 20th century virginia. it is the subject of his talk here today, his newest book. so please join me in welcoming peter wallenstein. [ applause ] >> so good afternoon. >> good afternoon. >> oh, we already did that. thank you all so much for coming out today. and special thanks to the
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virginia historical society for hosting this event and for in fact giving a good home to one of the more important sources i used in constructing a portion of this book. i heard something. i woke up, a little at first. it was this bright light in the room. a strange man next to my bed. two -- no, three men. that's not exactly the voice of love, not exactly the words she used to describe that experience. but it gives us an idea of the terror of that night, sudden intruders. and it's a prologue to what came after. the other day i ran across a brand new book, just last week on the lovings. they got the names right richard
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and mildred. got the kids names right, too. donald and peggy and sydney. just didn't present them in the right birth order. it's so hard to get the facts right on this story. and we see that time and again books published obitiaries when mildred died, films time and again. the most elemental facts wrong. i try to do it right. i try. the core story, mildred deter. you know how to spell that, j-e-t-e-r. lot of jeters running around in virginia, some white, some black. that was his name. they grew up in rural caroline
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county. so an hours drive northeast of here. it's in a part of the world i remember first going there. there's a canopy of pine trees coming up on the route and meet in the middle. the yellow line has since gone away. you see two houses and you know you've come upon a settlement. it's not really near almost anything else, but central point sports a fairly imposing building, a baptist church where mildred went all her life. and a cemetery across the church give some clue clues about the people and families over the years. and it has a triracial constituency. white, black, and indian.
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in june of '68, they got married, went off to d.c. he thought they certainly could in d.c. he also thought they ought to get married because mildred was pregnant. someone wrote dear abbey back in those days before the pill, and said didn't express concern in a family with a child -- she wrote back and said not to worry, child was on time. the wedding was late. so they went off to d.c. to do what so many young couples did in those days. they went and off and got married and came back. mildred called herself on her marriage licenses, the form she
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filled out in d.c., racial yi identit identity, indian. it didn't matter how she described herself. under virginia law, racial integrity act, it does not matter the details. and richard, nobody ever suggested he was anything other than white. but how could anybody actually know? so he could not marry somebody who wasn't white, she couldn't marry someone who was. and that led to that terror struck moment i opened up with. this teenage bride, late one night not very far from here, some 57 years ago. without which we'd have no subject of today's talk. but here we are. in january '59 the trial came.
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a plea bargain drove them out of the state, exiled, 25 years. don't ever come back together during that time. so they moved back to d.c. it wasn't that far. they could live there. the law wouldn't bother them. but they'd been banished. four years passed and more. mildred had had enough. and she wrote a letter. and looking ahead, june 19, '67, the supreme court of the united states ruled these convictions must be over turned. and they were free to move to virginia to go public, free. and richard built the house, the brick house -- it still stands there. the one he had meant to start nine years earlier, now he could. the rule changed the law of the
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land. those are the core facts. but it's not where i started writing this book. i started at the end, of course. i went to mildred's funeral. it was an extraordinary weekend. i went back to blacksberg, drove back up, and starting writing. and thought that pretty much captures mildred, the events of the weekend and how a lot of people whose lives had intersected with hers had come to know her and what they had to say. but i'd looked at that book and what i'd just written and thought it looked a lot like an epilogue. the epilogue comes at the end of the book. then you have to write the book. you have to write the book and then the epilogue it was designed to do. i'd already written a book on
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race, law, and marriage and came out a dozen or so years ago, 2002, "tell the court i love my wife." i still like the title and may still be my favorite book. that may still be my favorite book. those are the very words that the lovings attorney, barry cohen, told the justices of the supreme court that richard had told him to convey to the court, mr. cohen, just tell the court i love my life and that it's just unfair i can't live with her in virginia. the earlier book came out, good many years ago. and i told the story there briefly, more fully than any of the other stories i'd told of other couples across time and space, from maine to california, from the 17th century to the 20th, that was the story that gave the title to the book.
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it's the way i started the scene at the very beginning of the book. and it's where almost at the end i tell the story in more detail. and i thought when i finished that book as with all my books. i've done that now. i'll go away and someone else can come correct me on the details. i went on and pressed other topics that were also dear to my heart. but there was also this glimmer in my heart that i'd want to which back and tell a family history. not just bare bones, but a community, a family, a couple and a case they brought. not all that stuff that i had to do situate their story in the first book but enough. now, i quoted that book words that she conveyed to me in our very first conversation. and they made it into the first
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book, the second book. it's pretty graphic. it's pretty direct. describing the scene. and then she went up stair tuesday her mother's bedroom, sat on the bed. moms can't fix everything. mom couldn't fix that. so maybe i would write another book. mildred's funeral forced me to do it. going to her funeral gave me the stuff, got me started. i had the epilogue, needed a book. it emphasized five main characters. we've already met them a little. judge leon brazil, right next to hanover county going up to d.c., he'd served as a circuit judge since the u.s. had entered world war ii.
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i wanted to say long, but he hadn't been there that long. back during the time, he had been working in the state attorney general office, and then he served three terms in the house of delegates. this guy had been around within the realm of virginia politics. he had vast experience, and he left his imprint on public policy in any number of ways. he was a force. and he was a figure of some cultural dominance as well. she was a historian. he loved music. he did all kinds of stuff. but we don't know him for any that. we know him because of only about five words he uttered later in his life. and god all mighty created the races. well, let's read the whole thing he wrote. or the full passage, all that's white, black, yellow red and he placed them on separate continents. that was deliberate, you know. and but for the interference
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with his arrangements bazil never explained what he might mean by that, but for the interference, there could be no cause for such marriages. the fact that he separated the rays slows he did not intend for the races to mix. i suppose and we should guess that the state of virginia had a duty to enforce god's chosen design. often misplaced, that statement is frequently said to have been voiced at the original trial in january '5. normally you don't get a judge explaining the resolution to a case at that point. in fact, he actually wrote these words six years later when the lovings had brought successfully brought the case back into court and now he had -- he had the obligation, he had the opportunity to explain in tremendous detail, these are 12 pages in longhand. they type out, they're about the same where he voiced -- he
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articulates the history of the law of race and marriage. and he sees no possible basis on which that lovings could bring a successful case on constitutional grounds. the rules are clear. this is simply his pumpl line and god created god almighty created the races. for my purpose today though, the most striking thing about judge bazil is his own mixed marriage. now, the papers of judge leon bazil here at the virginia historical society include and just extraordinary collection over a period of years bazil had a problem. he had a prospective bride, she understood he loved her. she was pretty fond of him too, but she insisted month in and month out that leon we can never be more than sfrends.
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we can never marry. why? it's really important to know about ba zeal that he's from virginia and his prospective blid was from alabama. that can't be it. maybe this is it. he's a catholic and she's a baptist. and that caused huge problems. the only way they resolved these problems on his terps in the end was when his draft notice came during world war i. and she cape suddenly to recognize that he might well soon be going off to war and he might well not be coming back from war and suddenly she recognized in a way she never had how just vital to her happiness he was. and they got married. so as a married man, he went off to france where his great grandparents had been born. so he's still a catholic, she's still a baptist, but now they're
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married. now, i did bring a script. i'm checking it every once in awhile. i want to be sure i don't leave out all the good stuff. and i can't find one of those pages so i'm going to have to ask somebody to rewrite it for me an bring it up here in a hurry. now, one fairly recent account of the lovings story, i did mention they all get it wrong, right? one fairly recent account says about the judge that he "imposed the maximum penalty on the couple." well, yeah, i guess 25 is more than one to five. but as he saw it walking into the courtroom that day, he knew his discretion ranged from a minimum of one year in the penitentiary to maximum of five and that was it. this they were guilty and it was hard to imagine that they weren't, then that was the discretion he had and yet, what he did was exile them. so he left them free but only up
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to a certain extent? right? they weren't free to stay married and in virginia. they were free to stay married and free in virginia, they just couldn't do both. but if he didn't impose the maximum, if he didn't even impose the minimum, then what was going through the judge's mind that dale? as i write in the book, and i'm going to quote here, we can imagine judge ba zeal peering out at the scene that day in the courtroom and maybe he mused on his own mixed marriage and long happy family life, once he and his bride broke through the barriers that their different religious faiths had posed. perhaps the patrician leon ba zeal even saw in the pleb byian richard loving something of a kindred spirit. not bound by other people's rules of love and marriage, not deterred by big challenges in such matters, and finally the
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lovings' two lawyers both came on scene several years in, between them, they put judge ba zeal in a fix that he found himself in when he had to justify the original sentence. and therefore, invented that language we just heard. in june, 1963, so more than four years into their exile, we could consider it a promise of a fifth wedding anniversary present mildred gave to herself, she said i got to get help. she had more than enough. she needed it fixed. mom couldn't do that back then. maybe somebody out there could. who she wrote from her exiled home in d.c. was bobby kennedy in the u.s. attorney general's office. cohelp? could the civil rights bill that was in congress at the time in '63 potentially help? and the letter came back and we can imagine her opening it looking at it, hopeful, and prehencive reading no, can't help you.
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but you should talk to the people at the american civil liberties union. maybe they can help. it's a short story, this is how she comes to know bernard cohen, a very young lawyer who has had no experience whatever in constitutional law cases, no experience whatever in federal court. no experience doing a whole lot of things but had he some experience, he had a credential and he was a narrative of mrs. loving in particular. he loved the name of the case that he saw potentially going to the u.s. supreme court. and though he couldn't see how he could possibly win, he couldn't see how he possibly couldn't, right? it had to be a winnable case. now, he describes how he had to find a key to break through the door that was locking him out. he found a key. turned out he needed another key and he's just absolutely stymied. so he's visiting with his own con law professor at his law program in d.c.
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what drove him to see his old professor was a new letter from mrs. loving, dear mr. cohen, hope you hadn't featherweighten us. this has been a year since her first letter. so he's fairly desperate. but he's hopeful. the professor is a wizard. maybe he's got the solution. and maybe he does. maybe he doesn't, but what happens that day is very different. another even younger law student from the same professor, the same program who had been off doing battle with the forces the civil rights movement in the deep south, he was in federal court all the time. he was on the frontlines of the movement. he knew immediately what to do. you go into federal court. the two of them teamed up. cohen made the case possible to that point. hersch cough makes it possible to carry it to a successful conclusion. but we don't know that yet. all we know is, it's summer 1964
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now. and we found new possible way forward. sl now, if we fast forward to the case itself, we'll wrap back to it, they win, right? we know that. i'm not withholding any vital information. and now they get to live the permanent, the new brick building, central point is their home once again, raise the kids on a farm out in the country. all of these things mildred had dreamed about. she's back with her mom and dad, back with her cherished sister in particular garnett, she's back where she belongs. all is good and they live an ideal lick existence and it lasts for a grand total of less than they had been married before courts said they were. they're heading home, she and her husband and her sister to central point one night. and they got run into. now, when mildred described it,
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the scene struck me, i knew that richard died at the scene. and she said about the driver that he jumped a stop sign. i gather he jumped from the left side, right? but you do your homework. you go to the site and look and say no, that's not request the road is coming in at all. it's coming from the right but it's almost head-on. i don't think he jumped the stop sign. i think he never even slowed down for one. slammed in, not quite head-on. mildred is seriously hurt. richard is dead. they're free to live in central point for the rest of their lives. she now is free to live in the house that richard built. but without richard. that's the first of the two downers that the film the loving story ends on. it's designed to shock and, of course, it does. now, what do we know about the driver. >> i'll just tell you this. he is charged with dui.
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and manslaughter. he is convicted of both charges. he is fined for both convictions. there is no jail sentence involved. mildred does take him to court. bernie cohen will be her lawyer in a civil suit for yongful death. she does win. that helps but it can only help so much. now, if we think for a little while about the significance of the court's decision in the case that mildred brought, when the court handed down that ruling 15 states including virginia, 15 states plus virginia my arithmetic falters still had such laws on books. it was still a crime by some definition of interracial marriage in every one of those states to get married. and as a rule, the rules that virginia had, you couldn't get married in state but it was the same crime with the same penalty if you went out of state like
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they did to dc, got married and presumed to import that marriage against public policy in virginia. now, suddenly when the court rules, it's no longer a crime anywhere. it's not just the lovings who are free to come home, it's any other couple no matter what their racial identities no matter where they live, they can now get married. they can now live anywhere. they can now move anywhere. but it's not just the crime that goes away. it's more than that. the court went further and threw out all the related laws. now virginia had to recognize their marriage. of course, they were married. now all of the couples ho had sought marriage licenses but had been turned away could go back. so in fact, the court could have just done the first of those two things. that would tbt narrow gauge ruling and courts often try to take the narrowest to tailor the
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facts and we deal with the immediate question before us but we don't reach beyond and beyond and beyond. . and the court was far more ambitious of its decision in this case. what the court could have done is not just a hypothetical thetical. one of the members of the court it's always said about the case the ruling came down from a unanimous court. in a profound sense it did. that is the court said these convictions must be overalled. there's no question about that, but it was not unanimous in one major material way. potter stewart thought that's all the court should do, and he wrote as he had in another case 3 1/2 years earlier, it is simply not possible for a state law to be valid under your our constitution which makes the criminality of the act depend upon the race of the actor. so he's going to throw out the convictions but he does not go off and take down all the rest of it. so even if the courts' other
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eight members ended the opinion that chief justice earl warren wrote, these convictions must be reversed, the other eight in fact took the case much farther. so if we review what the court actually did and is immediate and longer term consequences why it was so much more than it might have been and so much more than has been portrayed in one leading piece of popular culture, let's look at ta. many of you may have seen the so-called documentary the loving steer, even here, right? probably a lot of you have seen that. it tells a captivating story. it relies heavily on two fabulous sets of visual images from mid-1960s. but it's command of the facts is otherwise limited throughout. ity sense of history, it's sense of historical context is by no means reliable. the film spends most of its time, and this is good, tracking the story of mildred and richard and the three kids across time.
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and it can do that through these images. and then when it reaches the supreme court it, does precisely what a documentary ought to do. ever since the 1950s, the proceedings of the court have been recorded. so there are in fact recordings where you can hear the actual argument, the oral argument, both sides presenting their case, their preferred argument in the case beak argued, the questions that come from the justices and we get to hear it just as if we were there on site at that time. something ha cohen and hersch cough were, mildred and richard stayed away. they'd hear about it later. but the film does not tell well the rest of the story. what was at issue as to how the court might have ruled does not come up. loving versus virginia was such a break-through decision. it even implies that the ruling though clearly it benefits the lovings, maybe didn't do very much for anybody else. how do we know that? the very last line in the film
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projected on the screen tells us flatout that not till it the year 2000 did alabama end its ban on interracial marriage. now, i'm not saying that everybody walks out of the theater having seen that film convinced that alabama continued to enforce the laws. but i can tell you having spoken after any number of screenings that the question always comes up it's a matter of deep concern, how could alabama get away with that. and the answer is, easy. alabama didn't get away with that. so what do i mean by that? what we have here is deception byoid. shock value is a punch line that distorts what happened. true the voters of alabama took till 2000 to remove the ban that had been there for a
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great.years. the ban had been put in the state constitution precisely so no weak needed legislature could decide to get rid of that law, no state judge could say it's not in the constitution of the state of alabama. it doesn't hold, right? >> you constitutionize it, you do something real. you make it harder to change and you also, and this is not secondary, you also symbolized your commitment to that position. you make clear just how important it is to you. now, voters in south carolina could have been the punch line to the film. they took almost as long. they took till 1998. they were fairly progressive and got rid of it two years earlier. but if in fact loving actually had traction, then the constitutional ban in alabama had been a dead letter for how many years? give or take 33. so what actually happened when we look back in the immediate
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aftermath of loving versus virginia took two tracks. cases already in the courts in june, 1967 went a very different direction than they almost surely would have in the absence of loving versus virginia. one of these was a case in federal court in oklahoma. i'm sorry, a federal case in delaware where a mixed race couple had gone get a marriage license just a few months earlier. and within weeks of the loving ruling, the federal court issues its decision in light of loving how can there be any other rule, right? delaware statutory law no longer holds. it's been overridden by the supreme court of the united states of america. so the couple gets its license and i meant before i came over here, i was thinking i should have looked them up. i want to see are they still happily married but i can't tell that you part. the other case comes from oklahoma. oklahoma is a southern state. who do i know that?
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they had a law against interracial marriage as late as 1967. the other case wasn't criminal law either. there the case had to do with dying in the absence of a will, leaving property behind that gets contested because some member of the family says you had no valid marriage to begin with so how could anybody inherit under it. very soon thereafter the state supreme court of oklahoma rules the way it never had. it overrides all previous -- says race has nothing to doing with whether this was a valid marriage. the property can be inherited under it. case closed. so here we have two cases already in the courts. neither one of them criminal. had the reach of loving versus virginia ruling are only to criminal law, these cases would not have been ached but they were affected in a radically different direction and had the opposite outcome what they would have had loving versus virginia not been handed down the way it
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was, and in fact, not been handed down when it was. but there's more. you've heard in recent -- the past few weeks about local court officials upset about what it looked like they might have to do with marriage licenses going to couples they didn't approve it of. much the same kind of thing happened. the language employed as far as i can tell had everything to do with race and had to do with does local law still govern. whose rules must i abide by. people conflicted uncertain what path they should take. remember, you've just seen potter stewart had he prevailed had his position governed those cases would have not gone the way they did. but what about alabama? let's not get to alabama yet. let's see. florida. the florida case went to the state supreme court. the others all went and there
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were a lot of others went to federal court. there the florida supreme court said well, you know, loving governs the outcome. of course, this couple must get the marriage license that they otherwise qualify for. now, the vote from the florida supreme court was 5-2. so you have to think that judge ba zeal had two clones in florida. right? they were make nothing concessions to the new regime. they knew what the laws were. they saw nothing had changed. but the couple got the license in florida. the other cases all were from if erl court. so let's see now. and again, i've lost a pang. somebody is going to have to run up here and give me its repla replacement in a real hurry. i don't need that, do i. within weeks and scattered over the next several years, state after state after state went the resolution, arkansas one upper south state, the others are all
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deep south. in mississippi, in georgia, state after state, louisiana, i want a marriage license. i've been told i can't have one. you go into federal district court, those folks have heard the news from washington, d.c. they issue the ruling, the license gets issued. it took awhile. the last of these cases i've just outlined georgia, 1972, mississippi was 1970. arkansas was 196. so they're scattered over several years. it doesn't end all at once. first of all you have somebody go get a license, then you've got to have them turned back. all we're seeing is the cases where there was somebody turned back. we don't know about cases where that never happened. then it's got to make its way through the court and sometimes that's fast and sometimes not so fast. but what about alabama? now, a couple wants a license. what we have here is, well, a
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short version is this. i tell it in detail in both books. i'm going to cut it low. the short version is it's 1970, the very end of 1970 and federal court says yeah, you got this thing. the local official had declined. ity state attorney general's office had weighed in on his part, going to hold on to this thing as long as possible. turned out that wasn't very long. but think about the the arithmetic here, how long since loving to the end of 1970? it's something under 31/2 years. theaters appreciably less than something under three naf decades. so 2000, deception by fact. >> eddie:. it's true and interesting but not very interesting and not very true that it took it till 2000 for the alabama ban to go away. so by 1970, you could get a license. you did get a license.
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loving rocks. now, some of you i know are interested in so what since then? we've got what, how many decades now since the mid-1970s? hmm. about four. so if in fact loving reverberates down through the u.s. supreme court of june, no, not 19, 2015, how do we get, how do we connect interracial with same sex? it took very short order for the first same-sex couples to go into court seeking to take the logic and language of loving about the freedom to marry, how important it was, what a crucial piece of american freedom that was, to argue that it should apply to same-sex couples, as well. the first was in minnesota. this is 1970. he loses. minnesota says that was race. well, that's minnesota saying that was merely race we're
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talking about. they actually take that case to the u.s. supreme court, not a wise move all things considered. there's no way you're going to get the court to even listen to your case there. but there were a number of others from pennsylvania, from new york, from kentucky, from washington state, a number of early efforts all got turned back. they went nowhere. i detail the story in various ways. we rapid forward down to just the past few years. along the way, loving continues to come o come back in. and pieces of it get incorporated as central components of judicial rulings that begin to move one jurisdiction or another at least toward what becomes then same-sex marriage. it's absolutely vital the roles that loving played. now i didn't tell much about this story in my first book. that came out in 2002, right in massachusetts's highest court hadn't ruled yet. civil unions had come on stream but hadn't gone beyond that. there wasn't much to tell. the new book i had to tell a
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lot. when i was beginning to finish up that long thing that was going to be the prologue to the epilog, two chapters i gave to the subject and then a couple books came out that i said okay, i don't need to carry the full narrative burden. somebody's covered it so i can focus on loving on a way that is far more streamlined and i did. now, a few weeks ago, in fact, the day of the ruling back in june, i got a communication from the editor-in-chief "the daily beast." i hadn't published for the daily beast before. i'm not sure how many of you have. but this was on a friday. by monday morning, my 2000 word piece was posted. it wasn't perfect. we still had to tinker with it a little bit. but i hadn't gotten one piece right because they misrepresented. they hadn't said who i was and i kind of wanted that there, too.
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so we fixed all that. and i wrote up some stuff that i liked a lot and this next few paragraphs i borrow from that. so this is my thinking well after the book that we're talking about that they went to press. but all of this is in the first two books, chief justice wrote the freedom to marry has long been recognized at one of the vital personal rights essential to the orderly pursuit of happiness by free men. that's sexist. i mean free women too, okay. vital to, essential to. not negotiable, not marginal. the court used very strong language in that case but it also when is you read it carefully, very clearly tied it to race that that was all they were talking about, the bundle of power that states have traditionally exercised over the institution of marriage age of consent, first cozens, this is
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virginia, right? all all kinds of things, those got left in place as subsequent courtses would often observe that only race had been taken out of this bundle. so erl warren's court took away race out of the bundle and now the court has gone on to remove gender identity as any kind of impediment to a marriage. if we compare the two and that was the burden of the question i was asked in this context. in some respects, the loving litigation came at a substantially more advanced more mature stage of development. and that is simply looking at how many states had signed on to a regime that did no longer restrict marriage on the basis of race. in 1948, so shortly after world war ii, the number of states out of 48 that still had such laws were, was, was, states were. 30. you can't do that with 17 southern states.
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you can't do that. california was the first. it was a big tower to fall. that was a big tree down. the supreme court 4-3 ruling, 1948, said doesn't pass muster the way we read the 14th amendment, the way we read the law of the land. we can't do that anymore. it's gone. state after state, even such deep south states as south dakota, got rid of their venerable laws. leaving behind the solitary proprietorship 17 states, that's all there were. now it was 24-24 when the lonnings got married. that's down from 30 to 24. it was down to 17 when the case was argued before the court. it was 16 by the time the court ruled in loving. maryland, think about this. maryland actually repealed its law. this is a law that dated back to the 17th century. maryland had initiated what i
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call the regime. maryland had put out there if a white woman marys a black man been a definition that the point, the black man was going to be a slave at that point in that place. smeal immediately become a slave and her children will be slaves. that law was enforced for a very long time. maryland that had led the charge even before virginia in 1691, decades before, maryland repealed it. what had happened to maryland? well, there is a city of baltimore. there was the voting rights act of 1965. there was legislative reapportionment because the court had ruled on another issue of great import in the early 1960s. this combination made it possible for a black female member of the state ladies and gentlemen literature to propose a bill that got maryland out of the mix. it went into effect june 1 so it's 11 days before the supreme
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court ruled. at that point we're at 16, virginia plus 15. swlug in that sense, i think that loving came along at a much more mature point. it was a lot easier to say time to get rid of the outlier states and mop up and make the nationalize this right. but the recent ruling in the same sex cases in ober shell versus hodges in a sense came at a much more mature time its own self because the lovings you remember were subject to imprisonment. there's been no such penalty hanging over same-sex couples whether they could marry or not since 2003 when the supreme court spoke in an jerl case. so from that perspective, much less was at issue. not in way to diminish how much still was. we just finished talking in some detail about can you get a license, can you hand property on, all the kinds of things that
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come with the rights of marriage. less was at issue in that profound sense of actually losing your freedom to be up and about and free to run around. now, i want to think about -- i want to do two more things. i'm going to run out of time. since i can't see a clock, i think i have three more hours. two things i want to do. i want you to think with me about some of the things we can come away from the loving story with. i keep wanting to rephrase that, the story evident loving so it doesn't get confused with the film and i want to come back to the epilogue to where i began. so the south, where is the south? i have students at tech for years now have known they don't come from the south because they come from northern virginia. but one of the hazards of being a historian is you beam into the past and get frozen there and you're not sure there's any
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other place or time. for me the south is precisely those states that still had those laws on the books as of the beginning of 1967. it's precisely the same states, the same 17 states that still had top to bottom segregated systems of public schooling on the day before brown versus board. precisely the same. it's not like you have to mix and match and figure there's a fuzzy margin here. it's the same 17 states. but people always want to talk about the south and never tell us what they mean. so we don't know what they're talking about. okay. the former slave states, don't you love that one? that's when historians get caught in a time warp. it's 1860 and they're thinking whether maryland went one way in the civil war and virginia went another or virginia split. when i think about the former slave states, i think of massachusetts and new york, all the or 13 states. so it's easy to get confused what we're talking about. but let's leave that behind and do some real stuff.
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how unique a place was central point? it was said at the time the case was in the courts and soon thereafter, it's this unique place on the planet, nowhere else in the world could richard have looked at mildred and seen marrying material, right? and yet, how many dozens of couples whose stories i told appear and tell the court and a whole lot of others, as well in the latest book. these people clearly didn't see rice as a march impediment to their falling in love and forming a family and staying together long enough maybe to become great grandparents but who is counting. central point to me is every place. potentially every place. and while it's an extremely special place to richard or mildred whether she was jeter or loving, that was their special place. there were lots of special places. central point was not unique. but it gets to my next point
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about state's rights. states' rights is the always carted out as a deflector shield projecting against federal intrusion of authority, right? but i don't see it primarily in those terms. judge ba zeal would have seen it in those terms and i don't. what i see is state power imposed upon the residents, the citizens of a state without any counter veiling authority to intervene to get in the way. we depend on our state governments to protect us in our life and our liberty and our property and where was the state government of virginia when the lovingses needed a friends or just to be left alone. >> so state's rights has a very different face on it when we look at it on these terms projected 0 downward rather than outward. what else do i have? interracial marriage is not a thing. it's a construct. it's a definition. virginia kept changing its definition. virginia's definition never was the same as georgia's or mississippi's. they all had different ones.
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so the laws against interracial marriage and the laws that were thrown out by the supreme court ruling in loving versus virginia were not all of a piece. nor did these states ever stay true to the faith that they got it right and they're going to stick it that way. virginia it was one-eighth black to be black in the colonial period. then across the long 19th century, one-quart would do. if you're anything less than that, you're not black. the one drop rule of black racial identity is a 20th century invention. virginia inaugurated it in 1924 racial integrity act. very shortly thereafter, the great authorities in both alabama and georgia but nowhere else said that's a great idea. we'll do that, too. actually, oklahoma had come earlier. oklahoma had done this weird thing where indians are white unless they have black ancestry. everybody's white unless they have african ancestry. everybody is. everybody is. so virginia kept changing the
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rules. any place could, state power. let's see now. so tara key shi, one of my favorite people was a japanese born kid in texas played football in the 1920s for texas a & m college, a white school as i remember it, he could marry anybody in texas except an african-american. in virginia, could he have married anybody who wasn't caucasian. where do you draw the line? who draws it? and what are the penalties for picking it wrong? and then there's that matter of racial purity. a lot of people out there have studied this far better than i can tell us if we track our family free back very far, eventually we show up in africa, all of us. so what's african ancestry mean? some years ago, the great historian of science, jeempb gould came to campus at tech and
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in the biggest auditorium we had, he told his story. he said in the aftermath, one young man in the audience stood up and had a question he wanted to interrogate steven j. gould. couldn't he realign his fantastics in such a way his great, great greats didn't come from africa? and gould assured he was doing the best he could by the evidence he had but he couldn't draw account family tree in any other fashion. so of african ancestry is this problematic construct. we're all crazy. i mean, trying to think of these things and get your head around these things one after another, these constructions drives you mad. as most people who know me will tell you, it happened a long time ago in my case. here i am trying to bring you along by introducing you to some of these complexities. mildred when she died was a black woman. now we know she was black. because the state of virginia said she was black. and she never denied it.
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she was black. so colored becomes negro becomes black becomes african-american. what you have there is the one rule of racial identity embraced every historian and journalist. mildred declared herself an indian. she said i'm of negro and indian ancestry. what are we to think about this? here is the iconic woman in the supreme irony of her post life, she gets to be the one person on this planet who more than any other took race out of the equation as a way to identify somebody with a kind of life-changing prison-imposing power to contort people's lives on basis of their race, she more than any other took away from state governments the power to do that kind of thing and she can't even identify herself nouz? so here's my thought on this matter.
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waller pleker, don't mention his name in the presence of native americans in virginia. right? walter pleker one of the key proponents of the racial integrity act and the chief enforcer of it in the long public life that followed in his public capacity. he would be aghast at what the supreme court of the united states did in 1967 and yet he might take comfort in the fact they're his rhetoric rules. he lost the battle of the courts but he wins the war of the rhetoric. his language lives on. it's been changed over. it's still a binary word and somebody else gets to decide how are. great. civil rights, political rights, social rights. historians of reconstruction know that was an absolutely central way to distinguish activist descendants of that generation in the 160s, in the 1960 oz knew they were all the
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same. they were all crucial and they call came under the category civil rights. but it's a false construct to project onto the 19th century. the notion that everybody agrees to that. because otherwise, how could we explain that six of the seven original confederate states repealed or their state courts can overruled or both any laws they had against interracial marriage for an extended period no such laws prevailed that that was primarily a northern phenomenon for a period. is that weird or what? and what i especially like is not only that judges and legislators believed that all the rules had changed on race, which turned out to be true only for a time but it was true for a time. so did all those citizen who's did not see race as the great impediment who they should see
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as marriage material. they went off and got married and some of them got busted and some of them took those cases to court like the lovings did and some of them won. some of them didn't. some of them spent ten years in the state penitentiary or ten years on the convict lease system. but they knew they could do that. it turned out they were wrong but they didn't make those distinctions that often get imposed. what else do i have for you? i got one more i think. then we'll get to the epilog before paul turns off the or sam turns off the mike. government of the people, by the people, and for the people shall not perish from the earth. abraham lincoln gettysburg, 1863, 100 years before mildred loving wrote her letter to bobby kennedy. now, lincoln was expressing a hope, he was expressing a fear. his rhetoric suggested that this
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was already in place and was in jeopardy of being lost. what i see is this had never been in place and was in promise of coming on stream. if we don't treat it all as one word, separate but equal as one word, if we don't treat of, by and for as one word, but separate propositions what we here is government of some people, and by and for other people, and that's the horror story for the people on the of category. and what lincoln voiced was the dawning of an age where it was just possible perhaps to bring into alignment those three propositions so that the same people who would be subject to the rules that they were passing would be those who made it and no escape. we agree on what those rules are. all right? it has taken an extraordinary
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struggle over a great many years by a huge number of people to bring into relative alignment those three propositions. who did it any more than mildred and richard loving bringing in the case that they did. i like that. now the epilogue. promised we'd get there eventually, right? first thing i au before i ever got to caroline county for the funeral was that the funeral home had an electronic bulletin board, a messaging system. you could leave testimonials behind. i'm one of the people who saw them. and i took them all down. i love them. every one of them i'm going to share a few with you. so some of the things that people had to say at the time that help us understand perhaps how a lot of people who when she died saw her and how we might see her, from one family in florida whose members who spoken to mrs. loving on numerous occasions they said. who knew this private woman was carrying on the secret
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conversation with extended people we didn't even know about. her strength and fortitude, this is their language to persevere and stay true to her heart despite huge obstacles shows she is truly an american icon for civil rights in america. mildred's name will be synonymous in the history books for generations to come as a true pooh pioneer toward creating a color blind society. from a writer in virginia came the statement she did not note personally mr. or mrs. loving but i feel i owe them a deep gratitude. my husband and i are an interracial couple going on 19 years of maj. how many people can say that? as my mother once told me, my husband is the best thing that ever happened to me. this from a woman who grew up at the time that the lovings were busted and who at that time would have believed that judge ba zeal did that this is not appropriate behavior. from glenn allen, not so far away, came a similar note it was their strength and courage that allows me to have a wonderful
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life i have today with my husband. it was mostly women writing in about the death of this woman. that was striking. mostly not by any monies only. from roanoke, my part of the world or toward it, i guess i owe my whole life to your mother. i too clearly a message to the kids, i too live in virginia and did not know till i read your mother's obit it was against the law to marry outside of your race here. i have been with the same wonderful man for 30 years and i guess i owe it all to her. wish i had known of her before she pass 37ds just wanted you to know you are in my prayers. because of their courage my parents were able to marry in virginia in '68. my mother black, my father white. my parents truly had a love story of a life, a love story of a life. my father was tragically taken at a young age but my mother never remarrieded pledging her love only to my father. other voices came from sxwra.
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your mother made it possible for me to love and marry who i chose. from florida, my husband and i would probably not be together had it not been for her effort to the marriage legal. my husband and i can also be married in the south. some wrote with recognition though i did not take the decision to open the door to their marriage in their home state, nonetheless it, freed them up, too. here's someone from new york writing i cannot imagine living in a country where my husband and i could not freely move as a married couple yet that could not have been the case had not mildred loving and her husband pro fested an unjust law. three scenes. one on the road from the church that is to say the auditorium at the high school that mildred loving had gone to. to the cemetery to st. stephen's baptist. the most striking occurrence i saw, this was truly amazing, the procession passed the home of the sparta volunteer fire department and out in front a fire truck lights blazing three
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men apparently white standing there at attention as the vehicles came by, it turned out that peggy's son mark mildred's grandson was a volunteer member of the fire department there and the trio were paying tribute to the local hero and the cherished grandmother of their friend and colleague. at the cemetery, after a bit, suddenly i saw five people drumming and singing as a rappahannock ritual accompanied her passing into the spirit world. the three men sat drumming and singing. two the woman standing behind also sang. when they concluded, the chief came over to the rest of the crowd by the stone. and said, some people might deny mildred loving her heritage. but she had always been and would forever remain a member of the rap pa hannic nation.
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afterwards, i went back into town to bowling green, stopped by the courthouse and its skanky old jail mildred had been terrorized in for several nights. no longer in use. and there's a monument out there with language to the effect that mildred loving who along with her husband richard helped strike down laws prohibiting interracial marriage in the united states. it took a tremendous effort two of the people in the party told me about their sustained efforts to get that language put on that monument but there it was and there it remains. wrap up with a few final testimonials. go back to the electronic bulletin board. people said things like this what a beautiful love story. mildred and richard together again. >> richmond, can't no court system separate them. that's my favorite. can't no court system separate them now. and from maryland, much the
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same. no, no man or court can ever break that union. from wisconsin mildred is now with her true love and no one can keep them apart. richard and mildred will love forever more. and from north carolina, rest well peaceful warrior, you are now regianted forever with the love of your life. thank you. [ applause ] >> a couple people may have to scoot. we will take a couple of questions. there are microphones. the first one back there. >> yes, sir. an important and timely story. my question is, you spoke of states, many states that had such laws such racial integrity laws. how vigorously were they enforced and particularly as white military veterans, for example, came home with asian
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spouses? >> i love that question. the rules clearly varied. and i didn't tell you about the california law where it was not a crime to be married interracially by whatever definition in california. you couldn't get a license. but if you took the train up to seattle, washington state had no such law. could you get married there and bring the marriage back. so the crime part of it wasn't there but you would still be subject to all the potential civil libts. this still could be all kinds of problems that might come along. states varied even as to whether they criminalized whatever they defined as interracial marriage. but the laws were pretty uniform and criminalizing it and putting serious penalties attached to any violations. the question as to how often these were enforced that's a fabulous question. i know someone who has taken up the story and pursued a series
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of cases where such cases came from the courts and she tried to find in each case what was happening in the local community. what was it that was held back as a potential weapon brought into play only when you really got seriously unhappy with somebody. right? and mildred voiced the notion, richard did too how we never knew who fingered us. right? so hersch cough mused about the fact that richard ran a racing car operation with two men of color. and that maybe the judge had a racing car himself and richard richard's had beat him. who knows about these things. one answer is clearly these laws were not always enforced. no question about this. you could people who lived forever and ever and suddenly the law hammered them or someone who paid the penalty then came out and the next census shows me, this is the 1th unite
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country, they've got two more kids and no one appears to be bothering them anymore. that's a tremendous patchwork not only of laws but enforcement. that have last question about military personnel, i love it. it's fabulous. and nowhere can i find anything in the literature about such families' experiences. does anybody -- does it occur to anybody this is an are interesting question? but here's a story. while the case is in the courts whileal lovings are still contesting for their freedom, a young man who grew up in south carolina, caucasian, having come out of the navy or maybe still in the neighbor, not sure, but he met in hawaii a young woman of clearly japanese ancestry. they get married in caroline county. and they live to this day in northern virginia. now, so i'm using the book does he get a bibecause he's not a legal guy or because he's in the military or a veteran? does she get a bye? do they because she's not
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african-american and again not local? so we don't know. what we do know is that a lot of people got busted. and a lot of people didn't. or it took a long time for some to get busted. and others who had been got left alone. so it's this -- it's one of the functions of terror you could say that you're subject to a rule that maybe you know about, but you never know when it's going to hit you. and what loving versus virginia was take away that terror, no longer was it possible, nobody could come and get nut middle of the night. how about that. >> question right here in the front. >> you made me curious about when you gave judge potter's decision. i don't know anything about the law and never been involved in it. but i do know one thing. i know that courts have jurisdiction and they've been given the jurisdiction by some authority. and apparently to the best of my knowledge anyway, the supreme
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court gets the authority from the constitution. and i was curious what while judge potter felt that he had gone as far as he could as far as the authority that was given to him under the constitution, there were other judges that felt differently and where did they get their claim that they could go beyond that particular jurisdiction? >> well, first of all, justice potter stewart who is putting in this concurring opinion. you could argue it's partly dissenting and partly concurring but' not presented as a dissenting opinion. that's my construct. he took the approach that i suggested judges typically do in cases where they only need to go so far to make the decision. and so that's as far as he saw it is imperative that he take the ruling. what his brethren all saw was
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that in fact that did not begin to touch the case. for example, the lovings would if you took away the criminal component that related to race still be an unmarried couple living in virginia and would have been potentially subject to indictment for cohabitation that had nothing to do with sex. a short answer to the question, the whole panoply had to be brought down. there could not be a question of doubt whether they were valid marriages regardless of whether there was a criminal component. loving versus virginia is not written as elegantly as it might have been but it's a powerful statement that gets the job pretty well done and they were ruling in a way that they thought it's time we got rid of all of this stuff and to their mind i think it's fair to say they saw this as a central part, a whole package that came before them and they had to deal with it all at once. it wasn't just the criminal components. it was anything that had to do
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with race and marriage and law, anything had to go. >> i'm still confused. the question i really had was that the -- the authority that they get is from the constitution. where did they then, what, portion of the constitution did they use to make their kind of thinking or decision? >> okay, i misfired in one respect. let's bring the 14th amendment here for centerpiece the equal protection clause is quite clear in the 14th aext in its language exactly how you translate that and apply it to a given situation is all that's at issue. they saw there's no way to read the equal protection clause or the due process clause. they lamered on both sides. these people are being deny dd their freedom without due process. their authority as members of the supreme court of the united states is to take their best judgment as to what the law is and apply it to the situation at hand and what the lovings did was bring them the occasion that permitted them to do just that.
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that's the best i can do for that now. >> one final question. >> oh, would you comment on the recent voting restrictions that virginia, texas, north carolina, have all recently passed and what's going to happen about them? >> not really. the 15th amendment is still in play. the voting rights act of 1965 is still in play. and a fairly recent ruling by the u.s. supreme court does not provide a whole lot of room for comfort that restrictions that get embellished in whatever fashion are readily to be dispatched. but we don't know. i mean, this is one of those things where the music is always playing. so you find a new way to restrict access to the electorate. you can't do race so use poll tax, some euphemism, use something else.
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if the court says that's cool, everybody says that's a great idea. let's do that, too. that was in the 19th century. things haven't changed that much. judge ba zeal's world lives on. >> please join me in thanking -- next week at 8:00 p.m. eastern on c-span3, a civil war special featuring "american history tv" highlights. on monday it, we're at the emerging civil war blog symposium where we look at the great defenses of the civil war including gettysburg, antietam, and the siege of vicksburg.
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tuesday, we focus on civil war leadership. at the longwood university civil war seminar with talks on generals robert e. lee, ulis ses s. grant and colonel john mosby. wednesday through friday, we're at the gettysburg college civil war institute conference. wednesday features lincoln scholar harold holzer. on thursday, speakers include historian john mar za lack and on friday we conclude the conference with author t.j. styles. american history's civil war special all next week beginning at 8:00 p.m. eastern on c-span3. >> c-span has been meeting with winners of this year's student cam video documentary competition. in laramie, wyoming, gathered with family and school officials to accept her first place prize of $3,000 for her documentary on wyoming's dependence on fossil
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fuel. in golden, colorado, ethan accepted a second place prize for his documentary on cyber security. also in denver, the third place award of $750 went to 10th graders for their documentary about digital theft and hacking. st. thomas more high school in rapid city, south dakota won the third place prize of $750 for their documentary on racial inequality in america. about five hours east, these students received the third place prize of $750 for his documentary on the national debt, and classmate won honorable mention and a price of $250 for his documentary on marijuana. at nearby thomas a. ed son middle school a number of
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students won honorable mention and $250 for the group. sarah won for her document on the national death. these students won for their documentary on temperature. these also received honorable mentioned for their documentary on global warming. thank you to all of the students who took part in our 2017 student cam documentary competition. to watch any of the videos, go to, and student cam 2018 starts in september with the theme "the constitution and you." we're asking students to choose any provision of the u.s. constitution and create a video illustrating why the provision is important. now melvin europe sky, visiting professor of history at american university, talks about his latest book on the life and career of supreme court justice louis b. brandeis. this is just


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