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tv   Supreme Court Dissenting Opinions  CSPAN  May 31, 2020 5:15pm-6:01pm EDT

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initiative, opportunity. narrator: let's go america! ♪ this is american history tv on c-span three, where each weekend we feature 48 hours of grams exploring our nation's past. >> american history tv is on social media. spanhistory. >> "dissenting at the supreme court" is a lecture series hosted by the supreme court historical society. next on american history tv, university of arkansas law
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professor is introduced by justice stephen breyer, then discusses the dissenting opinions delivered in cases between 1810 and 1927. >> good evening. i from atlanta. serve as president of the supreme court historical society. i am pleased to welcome you to the first lecture in this year's series. this year we are examining dissents, not majority opinions, different aspects thereof. you have been warned about your cell phones and apple watches so forth, so i will not appear that, but you will be in the doghouse if it goes off during the period of our evening. i also want to thank our host , justice stephen breyer, who against all odds agreed to come and introduce our speaker this
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evening on the first day of a busy term. justice breyer is one of the most faithful friends of the society. whenever we have called on him to help us out, he has shown up and done a wonderful job. i want to thank him for taking time away from his busy schedule on first day of term. i don't want to impose too much on his time, so i will abbreviate the introduction of justice breyer. he was born in san francisco and received an ab from stanford, college fromdlin oxford, and llb from harvard. he served as a law clerk to justice arthur goldberg of the supreme court of the united states during the october 1964 term. after, justice breyer pursued a career of teaching a public
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service. president jimmy carter appointed him to the court of appeals first circuit in 1980. in 1994, president clinton nominated justice breyer as an associate justice of the supreme court to succeed harry blackmun. he took his seat august 3, 1994. since joining the court, justice breyer has completed no less than a number of books including active liberty, interpreting our democratic constitution, making our democracy work, a judge's recently, the court and the world: american law in the new global reality. with thanks and appreciation, i ask you to welcome justice stephen breyer. [applause] justice breyer: thank you. very nice. it is a tradition to introduce the introducer.
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[laughter] joan has done a fabulous job and i am glad you are all here. what you do -- i was just talking -- my wife has written a book. she is a clinical psychologist and worked at dana-farber and wrote a book on what to do if your child is very sick, and it is helpful to a small group of people. she was talking about it at st. jude's in memphis. i could not resist talking about one of my books. everybody in the room, and there were a lot of people, they agreed the single most valuable thing is exactly what probably everybody in public office and most who aren't, in washington and agree -- and elsewhere agree is the most important to do, to get the word out to the next generation we have a history, we are a democracy, we have in fact a long history of up and down but basically it is a society
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today that is democratic, has basic human rights protected -- not perfectly -- and is more and more a society that is diverse and treats everyone as part of this group. we are part of that. you are part of the group of people really making an effort. the supreme court historical society does that. so of course i would come and introduced whoever is speaking, and they are always good. they always are. i always learn something. tonight we will learn about dissent. i don't always dissent. [laughter] quite often i am in the majority. [laughter] sometimes i dissent. but this is the first of the partties for part -- four silverman lecture series, and
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the subject is dissent and the supreme court in new perspectives. i have seen what you have done over long periods of time in this organization. keep doing it. just keep doing it. this is just one example. you have teacher training programs, high school civics teachers, publications, journal of the supreme court history. the title tonight is dissent. concurrence as a dissent, lecture to whitney. the speaker is eminently qualified. the distinguished professor at the university of arkansas school of law. he received his ba from boston college, his jd and phd in higher education administration from the university of nebraska. he is a life member of the american law institute and wrote two related books, mccullough v, maryland, and the 10th amendment and sovereignty.
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that is 2002. he is published widely on the supreme court, constitution and spoken twice before this audience. so there is demand that he came back. it is very good. a badge of honor that the society wants you to return. please join me in welcoming the professor. [applause] prof. killenbeck: thank you for that gracious introduction and for taking the time from a busy first monday. i didn't realize until you were downstairs, on october 7, 1935, 84 years ago, the first monday of the first term the court spent in this building -- there is a certain degree of residence and it is humbling to be here.
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i want to thank the society for the invitation and in particular jennifer lowell, the driving force behind these things. it is a great honor and privilege. the subject is the oddity of opinions styled as conferences that actually turn out to read much like dissents. two prominent examples will be justice discussion, brandeis and homes in 1927 in california. they are the most prominent examples of something i will call being agreeably disagreeable. the court etiquette version of judicial fighting words said with a disarming smile. dissent is not something new to the court. very few people realize the very first reported opinion of the court, by an obscure justice,
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thomas johnson, of whom it was that no one served with least distinction and least impact, the first recorded written opinion of the court was a dissent which he got to deliver as the first opinion because they did each justice announced and he was the scene -- he was the junior justice. they got to sit and listen to every other member tell him he was wrong. the next year, 1792, in a more consequential dissent, one out of five saying in spite of the clear text of the constitution, you couldn't bring a suit against the state of georgia. the case produced a the 11th amendment. we won't go any further with that particular context is very one. important to what i am about to talk about tonight. in particular, context under which john marshall became chief justice of the united states. the myth surrounding the chief john jay sentt
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his letter to president adams after he had been nominated and confirmed within which he depicted the court as follows. i left the bench convinced under a system so defective the court would not obtain the energy, weight and dignity which are essential to affording it do support to the national government, nor require public confidence and respect which as a last resort of justice to the nation it should possess. he declined. in motion a complex sequence of events in which john marshall was not the inevitable nominee. president adams was determined to elevate a sitting member of the court. cushing, who would be his first case, but who declined. he had his son working to convince jared ingersoll to accept the seat that would be vacated if one of the sitting justices was elevated. so i have a habit of referring
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to john marshall as the accidental chief justice. [laughter] judicial, he took the bit between his teeth and had two missions. the first was to gainsay john jay and give the court the position it deserved to have as a coequal branch of government. as everyone knows, he announced it with great results and affect in 1803 in marbury versus madison. the second was to ensure the court was treated with respect i speak withing it to a single voice. mccullough was decided and he engaged in his debate, marshall talked about dissent. the course of every tribunal must necessarily be the opinion which is to be delivered as the opinion of the court is previously submitted to the consideration of the judges. if any part of the reasoning be disproved, it must be modified as to receive the approbation of
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all before it can be delivered as the opinion of all. marshall was dedicated to the idea of no more surrey adam opinions and having the court speak with a single voice. but into this peaceful habitat became william johnson. jefferson's first appointment to the court. one can only begin to speculate about how he was licking his chops at the opportunity to put someone on the court who was not a federalist. and in particular who was not john marshall, his distant cousin whom he frankly despised. the two was aween leitmotif from the 1790's on. in a strangely prophetic letter to james madison in 1790, he complained about marshall and said we need to find something better to do with him to get him out of the way. quote nothing could be better -- "nothing could be better
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done than to make him a judge." that was, became true much to jefferson's chagrin. the theory would be that william johnson would be an ardent supporter of the jeffersonian approach to things. one small problem, they selected him on the recommendation of the secretary of treasury, name sent to the senate, confirmed, james madison sent him a letter saying congratulations, would you accept? a strange pattern in those days. undertaken,ence was and they were unaware of the fact that johnson, while on the south carolina court, authored an opinion which if it had come to light have given at least gastric distress if not apoplexy to thomas jefferson. why? in that opinion, he did two things that were anathema.
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he recognized the heresy, as it was put, of implied powers, and he recognized the constitutionality of the bank of the united states. i refer to william johnson as -- i hate this term -- but people like to talk about stealth nominees. this was our first stealth nominee. gallatin and jefferson thought they had put the jeffersonian cat among the federalist canaries. they were going to be greatly disappointed. johnson carved out a record during his tenure on the court of support for virtually all of the main positions embraced by john marshall. this was not because john marshall's legendary persuasive powers. it was because if you looked with care at johnson's record, the indication was already there. a couple of other important things. first, johnson joined the court after marbury. he was not part of that
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particular revolution. between marbury and 1810, there were few if any cases that came to the court which would arouse jefferson's ire. probably the single most important exception were the cases out of the burr conspiracy , where johnson in fact did dissent but not on a constitutional basis. in 1810, fletcher v. peck presented the first opportunity for johnson to speak out in an area near and dear to jefferson's heart. this was compounded by another development. bench,, sitting on the writing the circuits, a treasure task which will not be brought back, one trusts, johnson issued an opinion with regard to the jeffersonian embargo where johnson took a position that countermanded the direct command from jefferson. this gave rise to an incredible dialogue.
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he delivered a little mini lecture. even presidents are subject to and should respond to the law. jefferson was outraged. he had his attorney general, caesar rodney, write a letter to allport -- to all port collectors in the country. there was an exchange of views like the post mccullough exchange which was published in the opinion johnson issued. so when fletcher arrives at the court in 1810, he is not one of the in crowd. he is the enemy. he has a problem. that problem is threefold. he wants to be true to his own principles. he wants to be true to the things he had embraced as part of the john marshall project. but he also wants to appeal to his patron, thomas jefferson. how does he walk that line? is renowned for three things. first, the notion a state
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statute can set up something that is a contract subject to the contract clause, even though it is not a private agreement. the traditional common-law understanding of contract. second, fletcher is the first time the supreme court declared a state law unconstitutional. third, the johnson concur. the first two are simply wrong. one of the very first opinions that johnson participated was a case where, anticipating fletcher, john marshall held that a state statute could in fact create a contract and could be subject to contract clause interpretation. one year before fletcher, united states v. peers, john marshall again, a state law is unconstitutional. the first two myths about fletcher, been there, done that, they are simply not true.
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what is true is that johnson wrote an opinion in which he said, i wholeheartedly agree with the court, this measure is unconstitutional. the parameters of fletcher, i won't go into detail. they are vaguely familiar to most of us. fletcher is a warhorse it is in every common-law casebook, obey it -- albeit a brief mention. i am unaware of any book that extracts the whole opinion. johnson said, i agree this measure is unconstitutional. the georgia legislature had done all sorts of hideous things. the yazoo land fraud. they passed a measure in 1807. the next year, after the public found out about it, they repealed it. it was a vast controversy that consumed the nation. when it arrives at the court, it is a cause celebre. johnson wants to walk this very fine line, so he issues an opinion where he says, i agree, unconstitutional.
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not, however, because it violates the contract clause. rather, because it violates natural law, which he said binds even the deity. more of that in just a bit. now, why did he do this? i think it is because of the context that i have established. 1810, trying to bring together competing strands. johnson, for example, had been a willing participant in a series of decisions prior to maccallum where the supreme court recognized implied powers. johnson carved out a position regard to the powers that were expressly granted that were -- that was, in some instances, even more robust than that of john marshall. fletcher gives him the opportunity to simultaneously agree and disagree with john marshall and to hinge that
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agreement on natural law, which was one of thomas jefferson's favorite things. some scholars have said few members of the supreme court have ever done as much for natural law as a principal. few individuals in the united states, not members of the court , as thomas jefferson. what does johnson do? he pins his opinion on natural law, not on what thomas jefferson condemned as john marshall's have it of twist -- john marshall's habit of twistifications and distortions of the constitution. johnson gave an explanation which i think is not terribly credible. he wanted to talk about the difference between the obligation of contract and the regulation of contract. there are problems with that theory on the part of johnson. i think it is a make place quibble.
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first, in fletcher, marshall expressly said, states may regulate. two years later in a companion case, he said it more elaborately. onlyin 1827 in his constitutional dissent, marshall at length talked about no inconsistency between the normal regulation of contract and the notion of the contract clause and the extinguishment, the revocation of a contractual agreement. so i think johnson's superficial explanation is a placeholder. the true explanation to me is his attempt to try to walk this fine line, find a way to be true to his principles, which were a blend of robust marshall nationalism and a certain respect for states' rights. to do it in the light of all sorts of opinions -- in gibbons v. ogden, johnson concurs again,
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writing in an opinion where he does a couple of distinct things. one of them is to say, excuse me, i think one of the reasons we have a commerce clause is because the states were bad actors. the states caused this problem. that is jeffersonian heresy. he then goes on in that same opinion to say, i think the federal power over commerce is exclusive and issued -- an issue john marshall ducked in his opinion that was ultimately resolved against johnson many years later. johnson is walking a very fine line. he is trying to keep us from having this heresy of constitutional obstruction, relying on natural law, which, after all, if natural law binds the deity, perhaps it might even bind john marshall, a mere mortal. this brings us to whitney. whitney is another one of those warhorses in the constitutional
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curriculum. the facts are well known. charlotte anita whitney was the powerfula very california family, descended from the mayflower. she was referred to as a woman of sophistication and intelligence, which will come back to haunt her. she got a college degree and did social work in new york city and then did a large amount of charitable work in california and became very sensitive to the plight of the working person, to the problems caused by poverty during the progressive era, an era where respect for individual rights was just barely beginning to emerge. so what does she do? she becomes a member of the communist labor party of california. she attends a meeting of that group in november 1919. she signs a resolution saying, we are committed to preschool
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change. but none of that mattered because the state supreme court of california had already decided, you all know what's coming, communism is truly and totally evil. indeed, the link between the communist labor party of california and the industrial workers of the world, the wobblies, one of the most despised groups by the establishment in the 1910's and 1920's, helped doom charlotte whitney. her case eventually comes to the court in 1927. the court issues and opinion where they very quickly come to the conclusion, she is guilty. she participated in this meeting, this group is in effect evil. this group is plotting against all that america stands for. we then have justice brandeis joined by justice holmes, issuing a concurrence. people have speculated about that ever since. the normal explanation is tied
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up to an aspect of justice brandeis that is worth noting. he said this in his opinion. there were procedural defects in the record below. the attorneys that were representing charlotte whitney did not in fact make a first amendment issue of what was going on, did not introduce the appropriate evidence. he says this is a fact bound inquiry. and on the record below, there was evidence that was given to the judge and the jury that could support the conviction. and on that basis, we cannot overturn this verdict. he did this in an opinion and it is famous, that reads like a primer on why free speech is important, why the first amendment is a centerpiece. freedom to think as you will and to speak as you think are a
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means indispensable in value and to the discovery and spread of political truth. without free speech and assembly, discussion would be futile. with them, discussion affords adequate protection against the dissemination of noxious doctrine. the greatest menace to freedom is an inert people. public discussion is a political duty, and that should be a fundamental principle of the american government. and then in the lines that everybody remembers, fear of serious injury cannot alone justify suppression of free speech and assembly. men feared witches and burnt women. it is the function of speech to free men -- excuse me, from the bondage of irrational fears. the fact the legislature had determined that these kinds of parties were anathema was irrelevant. we will not defer to these kinds of legislative judgments. we need to take the test and
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refine it. what was the test? in 1919, justice holmes in one case articulated what we know as the clear and present danger test. an inquiry that focuses on whether certain words are uttered in such circumstances as to bring about a clear and present danger, that they will cause the substantive people -- substantive evil that government has the right to prevent. he amplified that in a couple of companion cases, and that arguably was the standard in place. brandeis had a well-developed reputation as a progressive, as someone who supported innovation, as someone who believed in fostering the rights of individuals. brandeis also had a well-deserved reputation as someone who believed in judicial caution. for example, in one case, his
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dissent in that case, he lists six factors the court should take into account when it hears constitutional cases and, in taking them into account, should refuse to hear the case. three of them are directly on point with regard to whitney. counseling that you should not act in the way the court did in fact not act, making his concurrence look like it is a, his consistent with, philosophy of judicial restraint would, the rules he respect, even in the face of the laboratories of democracy case. a little known fact about whitney that was actually in the concurrence is that he actually prepared what amounted to the whitney concurrence for issuance in a prior case, rosenberg v. michigan.
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rosenberg did the same thing whitney did. he joined the communis -- the communist party, he joined it in michigan, where they were even less tolerant of communism them the good people of california. he had a second misfortune, he died before his case was resolved. oral argument was held. brandeis prepared his dissent, then he prepared a two-page concurrence for whitney, saying, for the reasons i announced in my dissent in rosenberg, decided today, i concur in this case because of the records of defect but in effect i support the first amendment and free speech. when rosenberg died, post, can't -- poof, can't do that anymore. this traditional explanation strikes me as plausible given what i told you about brandeis and judicial restraint. but it also strikes me as potentially very misleading and very incomplete, for a couple of important reasons. one of them is it does not do
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justice -- i use the word with a certain amount of caution -- to what the supreme court did between 1919 and 1927 with the clear and present danger test. decidedcular, in a case in 1925 which is very famous for its casual, not labored two-sends incorporation of the free speech guarantee, unlike cases that would follow where page upon page is consumed in an attempt to justify incorporation, the court said new york statute is subject to the free speech prescription. the court did something like toto pulling aside the curtain on the wizard of oz. it revealed what it was really thinking. remember when i told you the clear and present danger, certain words in certain circumstances? in get low, the court made it absolutely clear what it meant by certain words. it point blank said there are
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certain things which by their very nature when they are discussed pose a risk that society cannot tolerate. in other words, it is the doctrine. it is not the statement, not the usage. we don't care that poor and puny anonymity's, justice holmes' characterization of the people in abrams when he formulated his dissent in that case, were putting out what the court would frequently call in the 1920's propaganda. those of us who are familiar with the 1940's and 1950's and the red scare no what a value laden term the red -- value laden term propaganda is. it is twisted. it is dishonest and un-american. it tells you you should not be eating apple pie or wrapping yourself in the american flag, because of course good americans would never do that. itlow reveals what was really
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going on. many years later in dennis, the infamous 1950's red scare case, the court made that absolutely clear when it said the real inquiry under clear and present danger is the gravity of the evil discounted by its improbability. which means if you think something is so evil, you don't care that it is never going to happen, you are going to go after it. it was not until 1969 in brandenburg that the supreme court cleared this defect and brought the test for the prosecution of speech back to where holmes and abrams and, presumably, holmes and brandeis and whitney wanted to take it. i.e., you go after the speech if and only if you are advocating imminent lawless activity and it it is likely, under the facts and circumstances, that that
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unlawful activity will occur. that was the breakthrough. that has been the doctrine ever since. brandeis never mentions that case. he never discusses the crucial gloss on clear and present danger in his whitney opinion. he writes it in ways that say, we have a rebuttable presumption, but he also writes in ways that says, the question of whether or not the judgment that harm might occur is reasonable. whitney does refer to free speech as a fundamental right. what we have to remember when we read the passage in whitney with the blessings of hindsight is in 1927 that didn't mean very much. if you look at the cases meyer and pierce, they talk about reasonableness, deference. it is not until the footnote of another case, amplified by the decisions in its wake, that we
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begin to get fundamental rights robust protection. the whitney concurrence still "reasonable," "problem." it is one thing for the supreme court to write a rule. it is another thing to be able to trust the judiciary -- the judicial machine below to implement it in the ways you want. judges and juries become a cause for concern. indeed, in a remarkable exchange of letters between oliver wendell holmes and another in 1920, judge hand points out the problem with juries and their herd mentality and ability to be deeply influenced by the ebb and flow of current events. i think there is a respectable argument that brandeis was aware of this problem and was reluctant to take that next, necessary step, especially in a
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case fraught with procedural difficulties. yes, the whitney concurrence has been described as the model of what a dissent can be. numerous others have adopted that line. but i think it was a concurrence first reason for all sorts of very important reasons beyond the one brandeis proffered. second reason, context is extraordinarily important in this area. the general myth about the 1920's is we got deeper and deeper into the roaring 1920's, concerns about communism and about germany and world war i were receding. the russian revolution was over. the execution of the czar was a fading memory. prosperity was rampant. consumer goods were being introduced that many people were
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able to access. henry ford had, for better or worse, started the revolution and transportation that led to the transformation of this nation. that superficial veneer belied a continuing antipathy that was out there with regard to communism, the communist party, organized labor, and all those other evils that john henry wigmore, after holmes issued his dissent in abrams, wrote an article where he said, in effect , they are promoting the freedom of thuggery. totally sobering article. i commend it to people. it is published in the illinois law review. it is a catalog of all of the evils that five men publishing a dish that got you virtually -- in yiddish that got
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virtually no circulation, that no one ever read, were going to bring down the war effort of the united states. we tend to forget another reality of that period, the significant conservativism. early in the new deal, john w. davis, a famous attorney, infamous in some respects, official spokesman for the american bar association, writes an article where he says, the federal government is not an elimosinary institution. i.e., what is all this new deal stuff? it ain't what the government ought to be doing. couple that with what you see if you look in the newspapers of the time, january 22, 1926, "new york times. ring intos were bo negro labor directed by the communist international in
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moscow as part of its worldwide labor. october 22, 1926, the banner headline, san francisco examiner, third terror thug caught, confesses four beaten with hammer in strike riots. april 15, 1927, 1 month before whitney, new york times, the american legion had issued a report condemning radicalization in the public schools, "submitting it is entirely out of place for discussions tending to create disregard for the united states government to be had in an educational institution supported by taxes , especially true when there is so great a presumption that organizations -- that the organization concerned is identified with a parent body -- think moscow -- whose aims and objects are undermining our form of government." another opinion, president of the civil legion saying, "college trained men and women are the most dangerous element
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in the communist movement, and communist doctrines are now preached by renegade americans instead of by the foreigners who formally adopted them." even american labor unions, themselves not terribly popular, felt compelled to do everything they could to distance themselves from the red peril. brandeis and holmes were aware of this. they were surely aware of the risks posed by a public fixation that continue to typify these kinds of movements as totally anathema to the american way of life. again, the judge hand quote i referred to earlier, all i say is that since cases actually occur when men are excited and since juries are especially clannish, it is questionable whether the test of motive, i.e. what is your motive, is not a dangerous test. juries won't regard the
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difference between the result of the words and purposes of the utterer. in any case, unless one is rather set in conformity, it intimidate, toth threw a scare into many a man who might moderate the storms of popular feeling. i know it did in 1918. i think this context is important in terms of understanding much of the thinking that goes into saying concur, not dissent. the court did make some progress. in 1937 it effectively overturned the notion that simply being a member of a party was enough to get a conviction. in 1937, the ravages of the great depression were fading, stalin was busy destroying his own government, roosevelt was promulgating policies that made it look like the soviet union was our friend. in 1941, the day after pearl
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harbor, the bridges case, a decision,itation, 5-4 the court did what holmes wanted to do in abram and what brandeis talked about in whitney. it said the clear and present danger must be objectively clear and really present. but in december 1941, what was russia? it was about to become our trusted ally in the great crusade against nazi germany. then we go to 1950's, the red scare in dennis. context becomes extraordinarily important in terms of shaping these kinds of decisions. so what can we say about concurring opinions? there are other examples. fletcher and whitney are simply the most fun. they are, to my way of thinking, stellar examples of judicial craftsmanship, efforts to bring together completing strands -- competing strands of fact and
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weave an explanation that balances divergent needs and interests. for johnson, the goal was to meet the demands of multiple masters even as he remained true to his principles. brandeis was charting a path to the future within which free speech would enjoy the protections required within a society that values both the quest for truth and the need for public and social order. the lines were drawn with care. they remind me of a 19th century work by a gentle man named thomas fuller, who was discussing witches. at first withns doing tricks rather strange man hurtful. some of them are pretty and pleasing. but it is dangerous to gather flowers that grow on the banks of the pit of hell, for fear of falling in. they which play with the devil's rattles will be brought by degrees to wield his sword. from making of sport, they come
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to doing of mischief. johnson and brandeis skirted what one might call the pits of hell. they crafted things that looked a little strange but also had a beauty. the did what i think is in best tradition of the court, to find a way to give meaning to the notion that while we are technically a court of law, what we really are looking for is a court of justice. thank you. [applause] [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> american history tv is on c-span3 every weekend and all programs are archived at watch lectures in college classrooms, towards of historic and seerchival films,
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our schedule of upcoming programs at >> in his new book, talking to strangers, author malcolm gladwell details why he thinks people make inaccurate judgments about people they don't know. >> step out of the car. i am going to drag you out of here. >> you are threatening to drag me out of my own car? >> she is imprisoned for resisting arrest. two days later, she hangs cell, ain her tragic and unexpected result. that exchange we saw, which goes on and on and on -- we only saw a small snippet -- that was the kind of, when i first saw that online, that was when i realized what i wanted to write about. if you break that exchange down moment by moment, you see multiple failures of
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understanding, of empathy, of a million things. >> tonight at 8:00 eastern on c-span's "q&a." >> this is american history tv on c-span3, where each weekend we feature 48 hours of programs exploring our nation's past. >> chad williams is the author of "torchbearers of democracy: african american soldiers in the world war i era." next, he talks about the postwar activism of these soldiers,
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