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tv   Loving v. Virginia  CSPAN  January 18, 2016 12:00pm-1:16pm EST

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have been deeply moved by realizing the impact of the civil war on hartford. our city's tour of staff recently traveled to hartford, connecticut, to learn about its rich history. learn more about hartford and other stops on our tour at you're watching american history tv all weekend, every weekend on c-span3. a landmark court case loving versus virginia proved it was unprofound for interracial marriage. he discusses how it affected similar legal challenges.
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the virginia historical society hosted the event. it's a little over 70 minutes. jeter was not a white woman. richard loving all agreed was a white man. so virginia state law not only rendered their 1958 marriage illegal but also required a penalty of at least a year in prison for it. circuit court judge leon f.zeal chose to suspend their prison sentences if they agreed to leave the state. after a few years of exile, loving sought existence to return home to virginia. today our speaker will be focusing on the suit mr. and mrs. loving brought against the commonwealth, a case that eventually made its way to the u.s. supreme court. the lovings challenged the conceit that the state could tell two people that simply because they did not share the same racial identity, they could not marry. and if they married, that they should be in prison for doing so. this talk will explore their
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tangled biographies on the way to a break through supreme court ruling in 1967. the ruling has echoes heard very clearly in the politics and pru dense of today. peter has taught at virginia tech 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, including the alumni award for teaching excellence at tech. in addition to his role as a distinguished teacher, peter has long been a leading historian of virginia and the american south. his various books include a history of virginia titled "cradle of america," which was a quad quadracentennial book. and he wrote path-breaking books
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on public policy in 19th century georgia and on conflict and change in 20th century virginia. his newest book, "race, sex and the freedom to marry" is the subject of loving virginia today. join me in welcoming peter waldenstein. [ applause ] >> so good afternoon. we already did that, right? thank you all so much for coming out today. and a special thanks to the virginia historical society for hosting this event. and for giving a good home to one of the more important sources that i have used in constructing a portion of this book. i heard something.
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i woke up, little at first. there's this bright light in the room. a strange man next to my bed. two, no, three men! that's not exactly the voice of mildred loving or exactly the words used to describe that experience, but it gives us an idea of the terror of that night. the sudden intruders. and it's a prologue to what came after. the other day i ran across a brand new book on the lovings. it got the names right, richard and mildred. it gots the kids' names right, too. donald, peggy and sidney. i just didn't present them in the right birth order. it's so hard to get the facts
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right on this story. and we see that time and again, books published, obituaries when mildred died, films time and again, the most elemental facts get wrong. i try to do it right. i try. the core story, mildred jeter. do you know how to spell that? j-e-t-e-r. mildred jeter and richard loving, that was his name. they grew up in rural caroline county. so -- an hour's 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 both sides of the
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narrow road and they meet in the middle. the yellow line has long since gone away. see two houses at the same time and you know you've come upon a settlement. it's not really narrow like anything else, but a central poi points to a baptist church where mildred went all her life. and the cemetery across the road from the church gives some clues about the people and the families from the area over the years. and the cemetery like the church has a tri-racial constituency, white, black and indian. now, in june '58, the couped got married and went to d.c. richard thought they couldn't get married in virginia but could in d.c. he also thought they probably aught to get married because mull dr mildred was pregnant. this is the 1950s, by the way.
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somebody wrote "dear abby" in those days and expressed concern about a member of the family who had just had a child and well under nine months after the marriage abby 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 got married and all was well, at least for a month. mildred called herself on her marriage license, the form she filled out in d.c., she indicated racial identity, indian. years later when she wrote for legal help, she identified herself as part negro and part indian. now that's how she described herself. didn't matter how she described herself. under virginia law racial
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integrity act, this woman is a colored woman. it does not matter the details. and richard, well, nobody ever suggested he was anything other than white, though how could anybody actually know. so he could not marry somebody who wasn't white. she couldn't marry somebody who was. they did and that led to that terror struck moment that i opened up with, this teenager bride, late one night, not very far from here, some 57 years ago. without which, we would have no subject because nobody would have heard of the lovings and there would be no case but here we are. in january '59 the trial came. a plea bargain drove them out of the state, exiled, 25 years, don't ever come back together during that time. and so they moved back to d.c. it wasn't that far. they could live there. the law wouldn't bother them. but they have been banished.
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four years passed and more. mildred had had enough. and she wrote a letter. and looking ahead, june 1967, the supreme court of the united states ruled that these convictions must be overturned and the lovings were free to live in virginia, go public, permanent, free. and richard now built the house, a brick house that still stands there. the one he had meant to start nine years earlier. now he could. and did. the ruling in that case transformed the law of the land. in ways that were buried down to the present. 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 blacksburg, drove back up the mountain, kicked on the computer, started writing
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and 5,000 words later leaned back and thought, yeah, that pretty much captors mildred, how she's been understood, the events of the weekend and how a lot of people whose lives that intersected with her's had come to know her and what they had to say. but i looked at the book and what i had just written and it looked an awful lot like an epilogue. you know what that means, right? the epilogue comes at the end of the book. then you have to write the book. you have to write the book before the epilogue can do the work it was designed to do. now, i had already written an earlier book on interracial marriage on race, law and marriage that came out a dozen or so years ago, 2002. tell the court i love my wife. i still like the title. it may still be my favorite book. i'm thinking i love all my children, but yeah, that may still be my favorite book.
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those are the very words that the lovings' attorney 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 wife. and that it's just unfair that i can't live with her in virginia. the earlier book came out, good deal, good many years ago, and i told a story there briefly, more fully than any of the other many stories i told of other couples across time and space, from california in the 17th century to the 20th. that was a story that gave the title to thing into. it's the way i started the scene at the very beginning of the book. and it's where almost near the end i tell the story in more detail. and i thought when i finished that book, with all my books, i have done that. i'll go away and somebody can correct me and fill in the details or whatever else. i thought i was done and pressed
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on to other big topics. they were all so dear to my heart. but there was also this glimmer in the back of my mind that maybe somehow i would want to come back and want to look at the family history, not just the legal history and not just bear bones, but a community of a fami family, a couple and a case that they brought. not -- all that stuff that i had to do in order to situate their story in the first book, but enough, but only enough. now, i quoted in that first book from ms. loving, words she conveyed to me in our first conversation. and they made their way into the first and second book. i kept going back to that scroll. it's pretty graphic. it's pretty direct. describing the scene. and then she went upstairs to her mother's bedroom, sat on the bed, moms can't fix everything.
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mom couldn't fix that. so, maybe i would write another book. mildred's funeral forced me to do it. going to her funeral got me stuck. i had an epilogue and needed a book. now my book emphasizes five main characters. clearly richard and mildred. we have already met them a little. judge leon bazille right up in caroline. he had served as a circuit court judge since the year the u.s. entered world war ii. i wanted to stay one but he had not been there that long. he had been working in the state attorney general office and would stay there many years after he returned from the war. 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 had left his imprint on public
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policy in a number of ways. he was a force. and he was a figure of some cultural dominance as well. he was a historian who loved music and did all kinds of stuff. but we don't know him for any of that. we know about him only because of five words he uttered fairly late in his life, right? and god almighty created the races. well, let's read the whole thing he wrote. or the full passage that's all that's ever given. almighty god created the races white, black, yellow, red and ma lay. and he played them on separate continents. that was deliberate, you know. and but for the interference with his arrangements, but he still never explained what he meant by that, but for the interference of his arrangements, there could be no cause for such marriages. the fact that he separated the races showed that he did not intend for the races to mix. and so i suppose and we should guess that the state of virginia
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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 '59. normally you don't get a up judge explaining the resolution to a case at that point. and, in fact, he actually wrote these words six years later when the lovings had brought successfully the case back to court. and he had the opportunity to explain in tremendous detail, these are 12 pages in longhand, they type out to about the same, where he voiced, he articulates the history of the law, race and marriage. and he sees no possible basis on which the lovings could bring a successful case on constitutional grounds. the rules are clear. this is simply his punchline. and god created.
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god almighty created the races. for my purpose today, though, the most striking thing about judge bazille is his own mixed marriage. [ laughter ] now the words of judge leon bazille here at the virginia historical society includes just an extraordinary collection over a period of years. bazille had a problem. he had a perspective bride. she understood he loved her. she was pretty front of him, too, but she insisted month in and month out that leon, we can never be more than friends. we can never marry. why? it's really important to know about bazille he's from virginia and his perspective bride is from alabama. that can't be it. okay, maybe this is it. he's a catholic. and she's a baptist.
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and that caused huge problems. the only way to resolve these problems on his terms in the end was when his draft notice came during world war i. and she came 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 had 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 are married. now, i did bring a script. i'm checking it every once in a while. 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 someone to rewrite it for me
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and 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, quote, imposed the maximum penalty on the couple. well, yeah, i guess 25 is more than 15. but as he saw it walking into the courtroom that day, he knew discretion ranged from a year in the minimum penitentiary to five and that was it. if they were guilty, and it was hard to imagine they weren't, the that was the discretion he had. and yet what he did was exiled them. so he left them free but only up to a certain extent. they weren't free to stay married and in virginia. they were freed to stay married and in virginia, but they 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 judge
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bazille's mind that day? as i write in the book, and i'm going to quote here, we can imagine judge bazille peering out at the scene 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 leon bazille saw 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 lovings' two lawyers. both came on the scene several years in. between them, they put judge bazille in the fix that he found himself in when he had to justify the original sentence and therefore invented the language we have just heard. in june 1963, so more than four
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years into their exile, we could consider it a promise of a fifth wedding anniversary present mildred gave to herself. she said, i've got to get help. she's had more than enough. she needed it fixed. mom couldn't do that back then, maybe somebody out there could, and who she wrote from her exiled home in d. were was bobby kennedy in a nearby office in the u.s. attorney general's office. could he help? could the civil rights bill that was in congress at the time in '63 potentially help? and the letter came back -- from the people at the american civil liberties union, maybe they can help. this is how she becomes bernard cohen. a very young lawyer with no experience in constitutional law cases. no experience whatsoever in
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federal court. no experience doing a whole lot of things but some experience, he had a credential and was a narrative of mrs. loving of a case 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. it was locking him out. he found a key, turned out he needed another key, and he is just absolutely stymied. so he's visiting with his old law professor at his law program in d.c. what drove him to see his old professor was a new letter from mrs. loving, dear mr. cohen, hope you haven't forgotten us. this has been a year since her first letter. so he's fairly desperate.
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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 of the civil rights movement in the deep south, he was in federal court all the time. he was on the front lines of the movement. and he knew immediately what you do. you go into federal court. the two of them teamed up. cohen made the case possible to that point. hershkof carries it to that level. but we don't know that yet. here it is summer '64 and we found new possible ways forward. now, moving to the case itself, we'll wrap to it, they win it.
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i don't want to withhold any information. now they get to live in the permanent new brick building, central point home, once again, raise the kids on the farm out in the country. all of these things mildred dreamed about, she's back with her mom and dad. she's back with her sister, and she's back where she belongs. all is good and they live an idyllic existence. it lasts for less time they were married before the courts said they were. heading home, she and her sister to central point one night, they got run into. now, when mildred described the scene, i knew richard died at the scene. and she said about the driver that he jumped the stop sign. i gather he jumped from the left side, but you do your homework and go to the site and say, that's not where the road is coming in from.
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it's coming in from the right, but it's almost -- i don't think he jumped the stop sign. i don't think he slowed down for one. slammed it, mildred is seriously hurt. richard is dead. they are free to live in central point for the rest of their lives. she now is free to live in a house that richard built. but without richard. that's the first of the two downers that 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 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
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in the civil suit wrongful death. she does win, 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 the ruling, 15 states, including virginia, 15 states plus virginia, still had such laws on the 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 in d.c., 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 says not just the lovings free to come home. it's any other couple with
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interracial identities no matter what they live can now get married and can now live anywhere. they can now move anywhere. but it is not just the crime that goes away. it's more than that. the court had related laws, now virginia had to recognize that marriage. of course they were married. now all of the couples who had sought marriage licenses but were turned away could go back, no? so, in fact, the court could have just done the first of those two things. that would be the narrow gauge ruling. the courts often try to take the narrowist detail or the facts and we deal with the immediate question before us, but we don't reach beyond and beyond and beyond. and the court was clearly far more ambitious than its rendering of this decision in this case. now, what the court could have done is not just a hypothetical. one of the members of the court,
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and it is always said that the ruling came down from the unanimous court, and in a profound sense it does, it did. that is the court said these convictions must be overruled. there's no question about that. but it was not unanimous in one major material way. potter wrote as he had in a case three-and-a-half years earlier it is simple for a state law to be valid under our constitution which makes the criminality of the act upon the actor. he's going to throw out the convictions but doesn't go off to take down the rest of it. so even if the courts other eight members ended the opinion that justice earl warren wrote, these convictions need to be reversed. the other eight took the case much farther. so if we review what the court actually did and it's immediate and longer term consequences,
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why it was so much more than it might have been and has been portrayed in one leading piece of culture, well, let's look at that. many of you may well have seen the documentary from a few years ago, the loving story. 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 the mid-1960s. but it's command of the facts is limited. throughout -- when it does reach the supreme court, 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
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argument, both sides presenting their case, the preferred outcome in the case being argued. the questions that came from the justices. and we get to do that and hear it just as if we were there on site at that time. mill dredred and richard stayed and would hear about it later. but the film doesn't tell the rest of the story. the issue of how the court ruled does not come up, so virginia talks about this breakthrough decision. clearly it benefits the lovings but maybe it didn't do much for anybody else. how do we know that? the very last line in the film projected on the screen tells us flat out that not until 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
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to enforce the laws, but i can tell you having spoken after a number of screenings that the question always coming 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 by factoid. shock value is a punchline that distorts what happened. true, the voters of alabama took until the year of 2000 to remove themselves from the state constitution a ban that will be there a great many years. the ban had been put in the state constitution precisely so no legislature could come to get rid of the law. no judge could say it was in the constitution of the state of alabama and doesn't hold. you constitutionalize it and make it far harder to change.
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and you're also, and this is not secondary, you also utilize your commitment to that position and make clear just how important it is to you. now, voters in south carolina could have been a punchline to the film. they took to 1998. so they were fairlying proprogreprogres progressive and got rid of it two years earlier. the constitutional ban in virginia has been a dead letter for how many years? give or take 33? so what actually happened when we look back at the immediate aftermath of loving versus virginia took two tracks. cases already in the courts in june 1967 went a very different direction than they would have in the absence of loving versus virginia. was one a federal case in oklahoma, i'm sorry, federal
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case in delaware where a mixed race couple had gone to get a marriage license just a few months earlier. and within weeks of the loving ruling, federal court issues its decision in light of loving, how can be there any other rule, right? delaware statutory law no longer holds. it's been overridden by the supreme court of the united states of to america. so the couple gets its license and i meant before i came over here, i was driving across the blue ridge and should have looked them up, are they still happily married? but i can't tell you that part. the other case comes from oklahoma. oklahoma is a southern state. how do i know that? because they had a law against interracial marriage in 1967. that's how i know this. but the other case was not criminal law either. the other 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 you inherit
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under it, right? very soon thereafter the state supreme court of oklahoma ruled precisely the way it had never in all the history of oklahoma. it will provide all previous courses, race has nothing to do with whether this is a valid marriage. of course, the property can be inherited under it, case closed. here we have two cases already in the courts. neither one of them criminal. had the reach of the loving versus virginia law gone to criminal law, these cases would not have been affected. but they were deflecteded in a radical different direction and had the opposite outcome of what they would have had loving versus virginia not been handed down the way it was and not been handed down when it was. but there's more. you've heard in recent weeks about local court officials upset about what looked like they might have to do with regard to marriage licenses
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going to couples they didn't approve of. much of the same thing happened. their language employed nothing to do with religion and everything to do with race. and it had to do with the local law still governed, whose rules must i abide by? so people conflicted on what path they should take. remember, you have just seen potter stewart had he prevailed in his position governed. but what about alabama? well, 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 were a lot of others that went to federal court. and there the florida supreme court said loving governed the outcome. of course this couple might get the marriage license they otherwise qualify for. now the vote from the florida supreme court was 5-2.
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they had to think judge bazille had two clones in florida, right? they were making no concessions to the new regime and knew what the laws were. they saw nothing had changed. 5-2. yeah. the couple got the license in florida. the other cases all were from federal court. so, let's see now, and again, i have lost a page, so somebody will have to run up here to give me its replace in the a hurry. but 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 is one south state, the others are deep south. and in mississippi, georgia, state after state, louisiana, a marriage license, i've been told i can't have one. those folks from washington, d.c. issued a ruling.
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the license gets issued. it took a while. the last of the cases outlined in georgia was 1972. arkansas was 1967. so they are scattered over several years. it doesn't end at once. first of all, one has to go get a license and then you have to have them turned back. all we are seeing are the cases where somebody was turned back. we don't know as a rule about the other cases where it never happened. and then it's got to make its way to the occurs and sometimes that's fast and not so fast. but what about alabama? now, a couple wants a license. what we have here is -- well, the short version of this intelligent detail i tell in both books, the short version is this. it's 1970, the very end of 1970 and federal court says, yeah, you aught to do this thing. the local official declined. the state attorney general's
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office weighed in on his part in front of a whole lot of others and it turned out it was not very possible and long. but how long has it been since loving since the end of 1970? it's something under three-and-a-half years. that's appreciably less than three-and-a-half decades. so 2000 the deception by factoid. it is interesting and not very sb true that it took to 2000 for the ban to go away. by 1970, you could get a license and did get a license. now, some of you are nowhere interested in since then. we have, how many decades since the mid-1970s? about four. so if, in fact, loving
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reverberates down to u.s. supreme court of 2015, how do we connect interracial to same sex? it took very short order for the first same sex couples to go to court seeking to take the language of loving about the freedom to marry, about how important it was and what a crucial piece of american freedom that was. to argue they should apply to same sex couples as well. the first was in minnesota. this is 1970. he loses. minnesota says that was a mere race. but minnesota, you understand, saying that was merely race we're talking about. they actually take that case to the u.s. supreme court. not a wise move all things considered and there's no way you're fwloung going to get theo listen to your case there. but there were a number of cases from washington and new york state and they were turned back and went nowhere.
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i tell the story in different ways but we rapid forward to the past two years. along the way loving continues to come back in and pieces of it get incorporated as central components of judicial rulings that begin to move one jurisdiction to another. and then they become what is now known as same sex marriage. it is absolutely vital the role that loving played. i didn't tell them much about the story in my first book. that came out in 2002. i mean, massachusetts' highest court hasn't ruled on much of this yet. it had not gone beyond the stream. i didn't tell much. the new book i had to tell a lot. when i was beginning to finish up that long thing that was going to be the prologue to the epilogue, 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. that's out there, i can refer to
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that, so i can bare bones it and focus on loving in a way 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 at "the daily beast." i had not published for "the daily beast" before. not sure how many of you have. but this was on a friday. by monday morning my 2,000-word piece was posted. it wasn't perfect. we still had to tinker with it a little bit, but no, i hadn't got one piece right because they had not gotten one thing right. they hasn't said who i was and i kind of wanted that there, too. so we fixed all that. and i wrote up some stuff that i liked a lot. and the next few paragraphs i borrow from that. this is my seeking well after the book we are talking about today went to press. but all this is in the first two
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books. chief justice wrote, the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by freeman. that's sexist. free women, too, okay? vital to, essential to. nonnegotiable, nonmarginal. the court used strong language in the case. it was clearly tied to race. the bundle of power that states have traditionally exercised over the institution of marriage, age of consent, first cousin, this is virginia, right? all -- all kinds of things, those got left in place that substance subsequent courts would observe. only race was taken out of this bundle. so court took race out of the bundle and now the court has gone to remove gender identity as any kind of impediment to a
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par marriage. now, this is a question i was asked in this context and got me thinking in these terms, in some respect the loving litigation came as substantially more advanced, more mature stage of development. and that is simply looking at how many states had signed on to a regime no longer restricted 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 was? the number was, states were, 30. you can't do that with 17 southern states. you can't do that. california was the first and it was a big tower to fall. that was a big tree down. the supreme court, 4-3 ruling, 1948, said it doesn't mast muster. the way we read the 14th amendment and the laws of the land, we can't do that anymore, it's gone. and state after state, even such
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detailed states as south dakota got rid of their venerable laws leaving behind the sole proprietorship of 17 states. that's all it was. it was 24-24 when the lovings got married. that's down from 30 to 24. it was down to 17 when the case was argued before the court. and 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 the regime, maryland had put it out there if a white woman married a black man and by definition at that point, the black man was going to be a slave, at that point, in that place, she would immediately become a slave and her children would be slaves. and for a while that was enforced. for a very long time.
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maryland, had lived the charge. even before virginia in 1691. even before, decades before. maryland repealed it. what happened to maryland? well, there's the city of baltimore and the voting rights act of 1965. there was legislative reapportion because the court ruled on another issue of great importance in the early 1960s. this combination made it possible for a black female member of the state legislature to get enacted to get maryland out of the mix. that took place before the loving ruling came down, it went into effect on june 1. 11 days before the supreme court ruled. in that sense, it was a lot easier to say to get rid of the outliar states and pop up to
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nationalize this right. but the vent ruling in the same sex cases in a sense came at a much more mature time its own self. because the lovings were subject of the imprisonment. there's been no such penalty hanging over same sex couples since the year 2003 when the supreme court had spoken in an earlier case. you can argue to the most vent ones. so from that perspective, much less was at issue. not in any way to diminish how much there was. we just finished talking in detail about getting a license, hand property on, all the kind of things that come with the rights of may remember. but let's issue this profound sense of losing your throw doom freedom to be up and about. now, i want to think about, i want two more things. at some point in time i'm going to run out of time, but i think i have three more hours.
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there are two things i want you to do. think with me about some of the things to come away with the loving story with. i keep wanting to rephrase that, the story of the loving, so it doesn't get confused with the film. and then i want to come back to the epilogue, return it to where i began, okay? so to the south. first the south. i have students in kentucky that don't know they came from the south because they come from northern virginia. [ laughter ] but one of the hazards of being a historian is you beam into the past and get frozen there and are not sure there's any other place or time. and for me the south is precisely those states that still have 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
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ward. precisely the same. so it is not like you have to mix and match and see the margin here. it's the same 17 states. but people always want to talk about the south and never told us what they mean by it. so we are not knowing what you're talking about. the former slave state. don't you love that one? that's when the historians get caught in the time what were, it's 1860 and maryland went one way in the civil war and virginia went another. virginia split. but when i think about the former slave states, i think of massachusetts and new york. but it is easy to get confused on what we are talking about. but we'll leave that behind and do some real stuff. how about central point? it is said the cases in the court -- central point is a unique place in the world. nowhere else on the world could they have found marrying material, right? and how many dozens of couples
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whose story i held in open court and a whole plot others in the latest book. these people clearly didn't see race as a major impediment to marrying and forming a family and staying together for an extended period of time. long enough to maybe become great grandparents, but who is counting. central point to me is every place, potentially every place. as well as an extremely special place to richard loving and mildred, whether jeter or loving. that was their special place. there were lots of special places. central point was not unique, but it gets at my next point about states rights. the states rights is 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 bazille would have seen it in those terms and i don't. what i see is state power
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imposed upon the residents, the citizens of the state. without any counter vailing authority to intervene or get in the way, we depend on the state governments to protect us in life, liberty and property. and where was the state government of virginia when the lovings needed a friend or just to be left alone? so states rights have a different face on it in these terms, projected downward rather than outward. but also, what else do i have? racial 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 always had different ones. 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 at peace. nor did the states ever stay true to the faith that they got it right and i'm going to stick to it that way. virginia, there was 1/8 black in
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the colonial period. then one quarter -- if you are one quarter black then you are black. but anything less than that you're not. the one rule of black racial identity is the 20th century ce invention. in virginia inaugurated it in 1924, racial integrity act. very shortly thereafter, the great authorities in both alabama and georgia but no where else said hey, that's a great idea. we'll do that, too. actually, oklahoma had come earlier. oklahoma had done this really weird thing where indians are white unless they had black ancestry. everybody's white unless they have african ancestry. everybody is. everybody is. so virginia kept changing the rules. anyplace could. state power. let's see now. so one of my favorite people, he was a japanese-born kid in texas in the early 20th century, played football in the 1920s for texas a&m, white school, as i
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remember. he could marry anybody in texas except an african-american. in virginia, he could 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 right racial purity. you know, a lot of people out there have studied this far better than i can tell us that if we track our jegeneological tree, all of us end up back in africa. what does ancestry mean? steven j. gold came to campus at tech. and in the biggest auditorium we have there, he told his stories. and in the aftermath, one young man in the middle of the audience stood up, and he had this question. he wanted to interrogate steven. couldn't he realign his facts in such a way that his great, great, greats didn't come from africa?
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and gold assured him that he was doing the best he could by the evidence he had, but he couldn't draw the family tree in any other fashion. so of african ancestry, this is a problematic construct. we're all crazy. i mean, trying to think of these things, get your head around these things, this construct drives me mad. as most people who know me will tell you it happened a long time ago in my case, and here i am trying to bring you along by introducing you to some of these complexities. mill dedred was a black woman. now, we know she was black because the state of virginia said she said black. and she never denied it. she was black. so colored becomes negro becomes black becomes african-american, and what you have one is the one drop rule of identity avidly embra embraced. mildred declared herself an
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indian. she said i am half-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 the way to identify somebody with the kind of life-changing prison-imposing power to contort people's lives on the 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 now? so here's my thought on this matter. 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 key enforcer of it in the long public life that followed in his public capacity, he would be
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aghast at what the supreme court of the united states did in 1967, and yet he might take comfort in the fact that 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 world, and somebody else gets to decide who you are. great. civil rights political rights, social rights. historians of reconstruction know that that was an absolutely central way to distinguish activist descendants of that generation in the 1860s. in the 1960s knew that they were all the same. they were all inseparable. they were all crucial, and they all came under the category of civil rights. but it's a false construct to project onto the 19th century, the notion that everybody agreed to that. because otherwise how could we
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explain that six of the seven original confederate states repealed or their state courts 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 of those citizens who did not see race as the great impediment as to who they should see as marriage material. right? 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.
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but they knew they could do that. it turned out they were wrong, but they didn't make those distinctions that they had imposed. what else do i? i've got one more, i think, and then we'll get to the epilogue before paul -- or sam turns off the mike. t the 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 father. his rhetoric suggested that this 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 down the stream. if we don't see that all as one
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word, separate but equal, by and for as one word, if we treat them as separate preposition, then what we have 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 prepositions so 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 struggle over a great many years by a huge number of people to bring into relative alignment those three prepositions, who did it any more than mildred and richard loving? bring the says case that they did. i like that. so now the epilogue, i promised we'd get there eventually,
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right? the first thing i saw 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 memorials behind. you could put up testimonials for the world to see. 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 had spoken to mrs. loving on numerous occasions, they said. who knew this private woman was carrying on this secret conversation with extended people we didn't even know about? her strength and fortitude to persevere and stay true to her heart despite be on that kehls. mildred's name will be
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synonymous as creating a color-blind society. from a writer in woodbridge, virginia, came the statement that she did not know personally mr. or mrs. loving, but i feel i owe them both a deep gratitude. my husband and i are an interracial couple as well and are growing stronger and stronger each day going on 19 years of marriage. how many people can say that? as may 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, as the judge did, that this is not appropriate behavior. from glenallen, not so far away, came a similar note that it was their strength and courage that allows me to have a wonderful 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 means only. from roanoke, my part of the world, or at least over toward it, i guess i owe my whole life to your mother. i, too, clearly messaged to the
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kids, i, too, live in virginia and i did not know that it was against the law to marry outside of your race here. well, i have been with the same wonderful man for 30 years, and i guess i owe it all to her. i wish i had known of her before she passed. just wanted you to know you are in my prayers. here's another. because of their courage, my parents were able to marry in virginia in 1968. my mother black, my father white. my parents truly had a love story of a life -- love story of a life, and my father was tragically taken at a young age, but my mother never remarried, pledging her love only to my father. other voices came from everywhere. georgia, your mother made is possible for me to love and marry who i choose. your fight has made my marriage possible. my husband and i would probably not be together had it not been for mildred's effort to make interracial marriage legal. from north carolina, my husband and i can also be married here in the south. and some wrote with recognition that though i did not take the
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loving 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 that not mildred loving and her husband protested 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. steven'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 front, a fire truck, lights blazing, three 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
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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 ritual accompanied mildred's passing into the spirit world. the three men sat drumming and singing. the two women stood behind, also sang. when they had concluded, one of the two women, 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 rapohanic nation." afterwards i went into bowling green, stopped by the courthouse and the skanky old jail that 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
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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 mondumen monument, but there it was and there it remains. i'll wrap up with a few final testimonials. go back to the electronic bulletin board. again and again, from bedford, what a beautiful love story, mildred and richard together again. from richmond. real nearby. can't no court system separate them. that's my favorite. can't no court system separate them now. and from maryland, much the same. now 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 reunited forever with the love of your life. thank you.
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>> we will take a couple of questions. and 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 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
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whatever definition in california. you couldn't get a license. but if you being ttook the trai seattle, washington state had no such law, you could get married there and bring the marriage back. so the crime part of it was there, but you'd still be subject to all the civic liabilities. there still could be all kinds of problems that might come along. so states vary as to whether they criminalize to whatever they defined as interracial marriage. but the laws were pretty uniform in criminalizing it and putting serious penalties attached to any violations. the question is to how often these were enforced, that's a fabulous question. i know someone who's taken up the story and pursued a series of cases where such cases came from the courts, and she tried to tind 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,
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richard did, too, about how we never knew who fingered us. right. so he mused about the fact that richard ran a racing car operation with two men of color, and maybe the judge had a racing car himself, and richard said, beat him. so who knows about these things. i mean, one answer to the question is clearly these laws were not always enforced. just no question about this. you could have people who live forever and ever 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 in the 19th century -- now they've got two more kids tan they had the last time. and no one appears to be bothering them anymore. so it was a tremendous patchwork not only of laws but of enforcement. but that last question about military personnel, i love it. it's fabulous. and nowhere can i find anything in the literature about such families' experiences.
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does anybody -- has it ever occurred to anybody, this is an interesting question, but here's a story. while the cases in the courts, while the lovings are still contesting for their freedom, a young man who grew up in south carolina, he's caucasian, having come out of the navy, or maybe still in the navy, 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 bye because he's not a local guy, or because he's in the military? or a veteran? does she get a bye -- do they, because she's not 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, then they got left alone. so it is extraordinary -- it's
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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 would take away that terror, no longer was it possible? nobody come and get you in the middle of the night. how about that? >> a question right here in the front. >> yeah, you made me curious when you gave judge potter's decision. i don't know anything about the law. i've never been involved in it. but i do know one thing. i know that the courts have jurisdiction, and they've been given the jurisdiction by some authority. and apparently, to the best of my knowledge, anyway, the supreme court gets its 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
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they get their claim that they could go beyond that particular jurisdiction? >> well, two or three possible answers. first of all, it's justice potter stewart, okay, who's putting in this concurring opinion. you could argue it's partly dissenting and partly concurring, but it's 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, as imperative that he take the ruling. what his eight brethren all saw was that, in fact, that did not begin to touch the case. for example, the lovings would, if you simply 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 co-has been tags. it had nothing to do with sex.
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to take that as kind of a short answer to the question, the whole panoply had to be brought down. so these marriages, it could not be a question as to doubt as to whether they were valid marriages. regardless of whether there was a criminal component. so in some respects, loving versus virginia is not written as thoroughly as well, as cleanly, 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 an essential part. it was the whole package that came before them, and they had to deal with it all at once. so it wasn't just the criminal components. it was anything that had to do with race and marriage and anything had to go. >> i'm still confused. >> yeah. >> i don't see where -- the question i really had was that the authority that they got is from the constitution. >> that's right. >> where did they, then, what portion of the constitution did they use to make their kind of
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thinking or decision? >> okay. i misfired, let's bring the 14th amendment here for the centerpiece. the equal protection clause is quite clear in the 14th amendment in its language, exactly how you translate that and apply it to a given situation is all that's at issue. and what they saw was that there's no way to read the equal protection clause or in fact the due process clause. they hammered on both sides. these people are being denied 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. 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?
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>> 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 you use some euphemism. you use something else. the court says that's cool. then everybody says, great idea, lease do that, too. and that was in the 19th century. things haven't changed that much. the judge's world lives on. >> thank you.
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you're watching american history tv. 48 hours of programming on american history every weekend on c-span3. follow us on twitter @cspanhistory for information on our schedule and to keep up with the latest history news. >> for this year's student cam documentary contest, students are telling us the issue they want the presidential candidates to discuss. and we're hearing about the students as they produce their videos. here's a tweet from andrew anno, eighth grade social studies teacher at summit school in winston-salem. recording student cam intros at
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u.s. mr. pi is joined by brian fung, "washington post" technology reporter. >> broadband deployment really is one of the key drivers of job creation and economic growth. one of the things i found striking is that in the 21st century, there has really been a democratization of entrepreneurship. everywhere from sioux falls to bozeman, montana, i've seen people using that broadband connection to build businesses that in a praef era either would have had to migrate to one of the coasts or would have withered on the vine. but because of that connection, they're now able to innovate. and i think that's something that's really powerful, especially in rural america. >> watch "the communicators," tonight at 8:00 p.m. eastern on c-span2. archaeological excavation of a slave ship that wrecked off the south african coast in 1794 is adding a new chapter to the transatlantic slave trade story. the smithsonian's national museum of african-american history and culture is a global partner in the ship's discovery, ov


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