Justin Driver

92 Texas L. Rev. 1053

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In March 1956, the overwhelming majority of senators and congressmen from the former Confederate states joined forces to issue the Southern Manifesto. That document marshaled a series of constitutional arguments contending that the Supreme Court incorrectly decided Brown v. Board of Education. Legal scholars initially lavished considerable attention on the Manifesto. Today, however, the Manifesto no longer occupies a central place in the American legal imagination. No law review article, or any other work written by a law professor, has appeared in more than fifty years that examines the Manifesto in a sustained fashion. Drawing on archival and other primary sources that law professors have previously neglected, Professor Driver contends that the Manifesto should be restored to a prominent position in legal scholarship because the document serves to recast two prominent debates that have occupied constitutional law scholars for decades. First, analyzing the Manifesto reveals that many southern politicians were far more legally sophisticated, calculating, and shrewd in defending white supremacy than legal scholarship generally suggests. Second, examining the remarkable public debates generated by the Manifesto demonstrates that, contrary to popular constitutionalism’s account, widespread support for judicial supremacy predated the Supreme Court’s articulation of the concept in Cooper v. Aaron. Although it may be tempting to view the Manifesto as promoting ideas that have no connection to current conditions, Professor Driver argues that the document continues to have resonance within the modern constitutional order.