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122 Record 1 (2006)

handle is hein.journals/hlrec122 and id is 1 raw text is: T lIE


The Independent Weekly Newspaper at Harvard Law School
www.hlrecord.org              Volume 122, No. 1          Thursday, January 19, 2006
February One Lauds Perhaps Lesser-Known Civil
Rights Activists

Forty students and professors gathered
last Thursday in a small lecture room in
Pound Hall for a trip back in time, to

Desan, Lecturer Bob Bordone, and stu-
dents Mandy Price and Delisle Warden,
Harvard BLSA Co-Presidents, facilitated a
vibrant group discussion after the show-

Lecturer Bob Bordone, BLSA Co-Presidents Mandy Price and Delisle Warden, Professor
Christine Desan present February One
February  1, 1960.   The Program    on     This film tells an important, resonant,
Negotiation presented February One, the  familiar story, Professor Desan said.
fifth film in its yearlong series. The HLS  But the main characters are less known,
Black Law Students Association and the   to many of us.
HLS Program on Human Rights co-spon-       February One recounts the experience
sored this film event. Professor Christine  of four black students from North Carolina

A&T University who walked into a
Woolworth's department store in down-
town Greensboro, NC, and changed the
course  of American   history.  The
Greensboro Four -- Ezell Blair, Jr. (now
Jibreel Khazan), David Richmond,
Franklin McCain and Joseph McNeil --
were college friends who, after mounting
frustration with the racial subordinaion
long imposed by whites upon blacks in the
South, dared to do something about it.
The documentary includes extensive
interviews with the three surviving men
forty years later; David Richmond passed
away in 1990. Khazan, McCain, and
McNeil explain how, armed with the
teachings of Gandhi, they dressed in their
Sunday best and sat down at a whites-
only lunch counter, where they were
denied service. Refusing to leave, even
when the manager closed the lunch count-
er, they ignited a peaceful sit-in movement
that spanned several months and spread to
54 cities.
Several members of Thursday night's
audience remembered living through the
events of early 1960, though one man
acknowledged that his memory had dis-
served him: I have to admit, I didn't recall
the sit-in movement as having been started
by these four men. I thought it had been a
more organized, structured action, he
said.  The success of these [sit-ins]
becomes all the more amazing when you
realize they began with four teenaged
Over pizza and soda, HLS students and
teachers watched reenactments of the
events at Greensboro, events that rejuve-

nated a civil rights movement that had lan-
guished after the court-ordered desegrega-
tion of schools in the mid-1950s. The four
students were joined by hundreds of sup-
porters, both black and white, in the days
following February 1, and their actions
were widely telecast by a television news
industry that was just beginning to blos-
som.   After months of protests, the
Woolworth's management integrated their
lunch counters. Department stores and
restaurants across the South followed suit.
After the film, Lecturer Bordone
encouraged those present to consider what
current issues of fundamental inequality
individuals might choose to address
through nonviolent protest, and why this
important mechanism has fallen into dis-
[The sit-ins] were a powerful tool for
change, Bordone said. The work is not
done, so why don't we see more of this
type of activism? We should think about
how we might use it today.
February One was produced by Dr.
Steven Channing, who won an Emmy for
the historical drama Alamance, and
Rebecca Cerese. It first aired on PBS in
2003, and premiered nationally in 2005.
It was awarded the Human Rights Award
at the River Run Film Festival, Winston-
Salem, and received the first annual
Global Peace Film Festival Award, pre-
sented in Orlando, Florida. It was named
Best Picture at the 2004 Greensboro, NC
Film Festival and was screened at the
Martin Luther King, Jr. Center in Atlanta
last January.

Cass Sunstein on Originalism

On the final day of Senate confirmation
hearings for Supreme Court nominee
Samuel Alito, Professor Cass Sunstein
addressed 50 students on the debate sur-
rounding originalism and constitutional
interpretation. An HLS alumnus, Sunstein
clerked on the Supreme Court for Justice
Thurgood Marshall before taking a teach-
ing position at the University of Chicago
and becoming a leading scholar of consti-
tutional law.
Originalism, Sunstein explained, does
not rely on the Constitution's framers to
ascertain statutory meaning, but rather on
its ratifiers.  The authority  of the
Constitution is not drawn from the
Founding Fathers, but We the People.
Originalism seeks the original public
meaning of terms and phrases, as opposed
to attempting to gauge the intentions of a
few individuals.
Sunstein attacked the premises of origi-
nalism on three fronts. First, he posited
that conservative judges who vocally
ascribe to originalism consistently fail to
follow the doctrine when it dictates a result
that they personally find politically
unpalatable.  For example, a historical
analysis of the original understanding of
the Fourteenth Amendment may support
affirmative action through congressional
actions like the Freedman's Bureau.
However, very few originalist judges have
ever used this original meaning to defend
affirmative action. As such, originalism

opens itself to the attack that it is nothing
more than a vehicle to enact the political
platform of the Republican Party.
Second, Sunstein suggested that origi-
nalists have never answered the quetion of
whether or not the Constitution's ratifiers
ever intended for future generations to
remain faithful to their original under-
standing. This historical gap is rarely
addressed by originalists and could prove
fatal to their claimed authority.
Finally, Sunstein argued that an original
understanding may be inherently lost
when one attempts to apply it to novel
legal situations. Just as we cannot expect
an agricultural understanding of the com-
merce clause to be entirely pertinent to the
Internet, we cannot apply a coherent inter-
pretation of the ratifiers' intent in modem
developments without losing the very
meaning originalists seek to preserve.
Even overcoming any of the previous
problems, Sunstein finds the consequences
of true originalism infeasible and looks to
Burkean Minimalism as its realistic coun-
terpart. The consequences of originalism
would be edifice destroying to such
widely accepted rulings as Brown and the
incorporation of the Establishment Clause
to the states.  Burkean Minimalism,
Sunstein argues, is a more realistic modifi-
cation of true originalism, taking original
understanding into account along with the
ramifications of that understanding on the
-present nature of society. Following such
an approach would mean that little
French revolutions in legal precedent

Professor Cass Sunstein and 3L Jeff Harris
would be rejected while cases like Brown
would stand.
Of course, this presents its own prob-
lems. When has a decision been accept-
ed enough to receive deference? The
obvious example is Roe, which Sunstein
acknowledges was a French Revolution
in 1973. But is it too woven into our legal
fabric to allow Burkean Minimalists to
reject it? Sunstein believes a true Burkean
Minimalist would probably reject Roe by
applying a two-part Burkean test: 1) has
the precedent been built upon? and 2)

would cutting it out significantly affect
other areas of law? Questions like this,
Sunstein suggested, will always involve
subjective judgment that a more objective
originalist (or creative progressive) would
be able to sidestep.
Although Sunstein believes that nomi-
nee Alito has hinted at being an originalist,
scholars will have to wait to see exactly
which type of interpretation Alito will
employ if confirmed.

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