- [Reporter] Support for this program is provided by the Community Foundation of Greater Chattanooga, and EPB Fiber Optics.

- Hello, and welcome to this special presentation.

I'm Bob Culkeen, and I'm pleased to have Donivan Brown joining me to highlight the events surrounding the dedication of the Ed Johnson Memorial back in September.

- Thank you so much, Bob, the Ed Johnson Memorial was the culmination of years of work dedicated to remembrance, reconciliation and healing.

And a part of that healing comes from conversations around tough topics.

This fall, we hosted events to get those conversations going.

- But before we get to those conversations, we were honored to be able to follow along with the years long process of meetings, ideas, and construction that created the Ed Johnson Memorial.

The process was a monumental task that required the combined skills and dedication of many community members.

We proudly present this documentary, All Truths Will Out.

- Well, I think the bridge is representative of a lot of things to a lot of people.

- Really sort of the most iconic public place that we have.

- To a lot of people in the Black community, before we see it as anything else, it is something that we have to sort of have a, to recognize some of the atrocities that occurred there.

- The bridge is not simply a place to walk, it's not just a place for great photos or to get an exceptional view of the city, in truth, it's been a place of torture, of human violation and human destruction.

In our case with Ed Johnson on the bridge, if that was a places of his death, by all means it should be a place of remembrance.

(gentle pensive music) - Well, Ed Johnson would have been one of those people that was lynched between 1875 and 1920.

- We know that he was a stone mason, we know that he worked also at a saloon in St. Elmo.

- In January of 1906, a woman by Nevada Taylor was sexually assaulted, and one thing she expressed in the midst of this really tragic and traumatic event was that she didn't actually see her attacker.

So days after this, there was a ransom, a reward rather put up for this and the award grew day after day, Ed Johnson was arrested.

- And those days you didn't have to be accused of much of anything, you could have been accused of vagrancy or loitering, or remember that you had at this time you had the Black codes, and so African American could have faced illegal citations, for almost anything.

And so it was very real, but we would call it a day of circumstantial evidence, if you can even call it evidence that was livid against Ed Johnson.

- There were 10 people, at least who indicated that he was onsite at his job as St. Elmo at the time of this assault, based upon the record, based upon the evidence, based upon the testimony, Ed Johnson was not her attacker.

So the community didn't actually get justice.

And so his father went to Noah Parden essentially Noah Parden went to Styles Hutchins and they decided to take on the case.

- This particular trial is unique and the situation of circumstances because it was directly appealed all the way to the United States Supreme Court.

- And Justice Harlan provided essay of execution.

This was a provocation to the Southern order, the Southern way to state's rights.

And so it wasn't simply about Ed Johnson, Nevada Taylor, Ed Johnson's guilt or innocence, even a single community that the men of the South were affronted by the Supreme Court overstepping their boundaries.

So the mob organized and ultimately broke into Ed Johnson's cell, put a rope around his neck, marched him down the street, walked him up to the Walnut Street Bridge, they offered him an opportunity to confess of his sins, and his final words were, God bless you all, I'm an innocent man.

(upbeat music) - It was a story that the African-American Community had never forgotten, all of the victim we never forgot, but you did notice the significance of Ed Johnson.

And I think it really was a collaborative community effort to get this done, to right this wrong, and to let the healing begin.

- We look forward to the opportunity this represents to work together as a city to embrace our historical legacy through public heart.

This will require securing the right site, receiving approval for inspiring proposal, and raising the necessary findings.

(audience clapping) - The committee has done a ton of work over the past four years, really ongoing, of having diverse groups come together, Black and White community members, talk about the story and understand the story and understand the need for a Memorial.

(dramatic music playing) - So we wanted something that people will actually want to come in that didn't just serve shock value.

I think Jerome's revision of it just spoke to, I wouldn't necessarily say the needs of this community, but the desire of this community, what we hope that the Memorial would represent going forward.

- As an African-American male aware of the sociological injustices and as an artist who believes that the artistic voice has an important part to play, I was just thrilled to be awarded the commission.

Thank you for coming.

(audience claps) - Memorials are certainly a longstanding tradition in public art really since public art has been happening in the US.

- But ultimately the question is who deserves to be memorialized, and I think because Ed Johnson had something taken from him, his life, and because he was a victim of Southern law and he was a victim of American racism that this act is it in part to reaffirm his humanity.

- These three men, Ed Johnson, Noah Parden and Styles Hutchins deserve to be acknowledged in our city in a significant way.

- From the very beginning I saw Ed Johnson walking symbolically, finally walking away from that travesty.

I think of them symbolically as courage, compassion and grace.

- I see Ed Johnson as grace, I see Noah Parden as courage, he is using the judicial system as his weapon for finding justice.

And then Styles Hutchins is compassion by virtue of him reaching for Ed Johnson's hand.

- We're doing a site-specific, immersive public space.

So this becomes much more complicated than showing up with your sculptures and putting them on down.

- This is perhaps the most challenging with respect to procedure, these because of their irregular nature and going down the slope is more of the artistry of the Memorial carries through into this.

So it's gonna be... Once we started construction where it was no longer what's on that construction document, it is what these stones are telling me they want to, and what, and how they wanna contribute.

(dramatic music) - There's been an interesting debate, what type of history should be told?

Do we need to be selective and subjective and water down?

What are the most important elements of our history?

What we have to do is lean to the better, and as of our nature as Lincoln said, and recognize that we have to learn from one another, and that means inclusion of different aspects of history as it actually happened.

(dramatic upbeat music) - I think that... - Their movements and we are in the midst of a movement, that's not simply around better truth-telling, but it's about a generation of new being responsive to new elements of the American story.

The first step you see in society, as they're trying to heal is they commit to the most truthful record about what happened.

The baseline, the very foundation of societal healing is the truth, is the truth.

- I live by the adage that all truths will out, of the Ed Johnson story have been repressed and buried and, you know, but they don't go away, they don't cease to exist.

So eventually all truth will out.

Also will be the same gray stone that caps off this (indistinct) - Right, I wouldn't want it to look as if it's a noticeable patch.

It just takes away from the spirit of the case.

(dramatic music) Every time you hear these stories, there's this anger that comes up, but then you wanna set that aside or try to work through that, to find some way of moving forward.

And so here comes the Ed Johnson story, and he's right there as this unbelievable spokesperson.

And so this project was a way of, of not just honoring that person, but, you know, having him teach me.

- Healing occurs when you tell the story, when you bring awareness to what happened at the bridge, and when you also give an open space to where we can have a meaningful dialogue and discussion on how we can go forward and progress.

(gentle spirited music) - So that axial line references the flow of the river, and that's the stream of time.

So then as that stream of time crosses out of the Plaza, it becomes the stream of history.

There's three oval shape, those will contain these abstract forms representing the other three individuals landstone Chattanooga, and the center of course is the central grouping.

(gentle spirited music) (intense dramatic music) The story basically goes up to the Ed Johnson story, the accounting of it, but then we've got 115 years of basically no accounting for what happened to Ed Johnson spirit.

(chuckles) (intense dramatic music) - And so the libation ceremony was to acknowledge that as a result of all of that, Ed Johnson became an ancestor.

And I say that in terms of our ancestors being there to guide us and to teach us and to help us along our paths, he became that, as did Noah and Styles.

And so the libation ceremony was to acknowledge and honor them in that way.

- That is called the cloud of wisdom.

- You can tell this project is hugely important for Jerome obviously, but he has the most like this spiritual connection to this work.

- As far as I was concerned, you know, Ed Johnson was spending a lot of time with me and my students.

That poem that I wrote, we see Ed Johnson walking, I'm sitting at my desk one day and all of a sudden these words started coming in.

We see Ed Johnson walking, restored and honored, his footsteps resounding along the stream of time We see Ed Johnson... - Gathered to honor his life.

(audience claps) (dramatic upbeat music) (audience claps) (dramatic upbeat music) - (indistinct) (audience claps) - There's a tremendous amount of value in grace, courage and compassion.

I think that the degree to which, in terms of racial justice or injustice, we keep talking at each other and we keep going around this vicious cycle is because we're not utilizing those virtues sufficiently.

So I'm loath to say that Ed Johnson is at rest, and more to say that appreciative of being honored for his teachings to finally be given voice.

- This is a reaction to the defilement of Ed Johnson.

So this is choosing honor over shame, and choosing truth over silence.

And while memorials themselves don't equate to reconciliation, we as a committee exists to promote reconciliation.

- We have to have light to correct darkness.

It's when you shed light on these things that you rip yourself of them.

And so the old people in the old tray put it another way, this little light of mine, I'm gonna let it shine, let it shine, let it shine, let it shine.

And so we hopefully, this will be the light that shines for us.

- Back in September, we invited Peter Canellos to talk with us from a historical perspective about the events of Ed Johnson's trial.

Canellos is the author of The Great Dissenter, the story of John Marshall Harlan, America's Judicial Hero.

Within a long judicial career Justice Harlan presided over the appeal of Ed Johnson's conviction before the Supreme Court and ultimately issued a stay of execution.

We were pleased that Senior US District Judge, Curtis Collier could join us as well to offer a legal perspective, here's that conversation.

There are many with us today who know a bit about Ed Johnson and know a lot less about Justice Harlan.

First off, who was Justice Harlan.

- Asking me I assume, Justice Harlan was a man who grew up in Kentucky was part of one of the leading families, spent much of his early life trying to prevent the Civil War from happening.

He was a moderate on the issue of slavery, he was not an abolitionist, he was a skeptic of slavery, he believed it should be put on a path to eventual extinction, but he was not calling for immediate abolition, partly because he feared that a war would result and would destroy his home state.

So it was with that sort of moderate background that he entered the Supreme Court and many people at the time of his appointment doubted his commitment to civil rights, doubted his commitment to the post-Civil War reconstruction era amendments to the constitution, which were designed to protect African-American rights.

Ironically, he, the only southerner on the court turned out to be by far the most steadfast defender of civil rights, and in most cases, the only defender of civil rights on the court, it was in a great irony the Northern Republican appointed judges, that time Republicans were the more progressive party on race, but it was the justices who were appointed by the Republican presidents and the conservative justices who abandoned African-American rights.

So what you saw in this tragic succession of cases was starting in 1883 with the civil rights cases of 1883, the Supreme Court declared a Civil Rights Act unconstitutional Congress did pass a law, enforcing civil rights in this country, granting access to all people, to transportation, theaters, restaurants, et cetera, the Supreme Court declared unconstitutional.

Then the Supreme Court refused to enforce voting rights in the case called Giles V Harris.

Supreme Court in another case involving Berea College in Kentucky said people could not, they supported a law that said that people could not be taught side by side of different races, even if they wanted to, and even if it was an entirely private college.

And then as we all know, in Plessy V Ferguson, the Supreme Court endorsed the legal architecture of segregation, which have consigned the country to 60 years of brutal segregation followed by many, many decades of continued strife.

So the one common thread in all this cases is John Marshall Harlan dissented in all of them.

And his dissents were very powerful, they were not sort of procedural type dissents.

You know, he was very in touch with the great wrong that he felt was being done to add not only to African-Americans, especially to African-Americans obviously, but the whole idea of equal protection under the law and what the constitution meant and to the fabric of the country.

And over time, his descents served as models and inspiration for some of the civil rights lawyers of the 20th century, who moved overturn segregation.

And, you know, his legacy today is largely related to his very powerful dissent in Plessy V Ferguson, which declared the constitution colorblind and neither knows or tolerated classes among citizens.

The humblest is the peer of the most powerful, there is no cast here, these are powerful statements about the centrality of equal rights under the law.

And that is what Harlan is most famous for, and of course, we're gonna talk today about a case that even many Harlan admirers aren't even aware of, where he stepped out to call attention to a very biased and troublesome policy state court procedures in the case in which Ed Johnson was convicted and in ordering a retrial, he so offended the powers that be in Chattanooga, that they left the bail undefended and allowed a mob to commit one of the most horrendous crimes of the century.

- Peter, there's a way in which you talk about the justice, in which you can sense the intimacy in terms of detailed knowledge of him, it's as if you've actually been with him.

One thing that sends out to me that you described him as someone who since this impending potential of a split in the country or a Civil War, and also another thing that stands out to me was this, like this ironic element that of all the justices, this one from the South would be the one who actually would be this decentral one who stood in and to actually defend the right of an African-American, he being Ed Johnson and speaking of Ed Johnson, who would you both say and starting with you, Judge Collier, who would you say, how would you describe Ed Johnson to someone who had never heard of them before?

- Ed Johnson was a young Black man who was accused of raping a young White woman in Chattanooga, Tennessee.

There was a huge public outcry as a result of the rape and on very shaky evidence, Johnson was arrested and was subjected to trial.

The outcry was so great that there were concerns that he might be lynched and the sheriff and other officials took precautions to spirit him out of Chattanooga so that he would not be lynched.

A trial was held, and very short time period, but it's a trial that will be appall today to think this on what was subjected to it.

There was actual lynch mob outside of the courthouse while the trial was going on.

There were people in the audience who were making threats against Johnson's attorneys while the trial was going on.

The trial court judge refused to change venue that is to have the case tried out someplace else, outside of Chattanooga, and also refused request to delay the trial to a later time when the motions may have settled or stopped.

During the course of the trial, one of the jurors made a statement to the fact that he wished he could leave the jury box and kill Ed Johnson himself.

After Johnson was found guilty, at that time the law of Tennessee was that you have to announce whether you want to appeal right after the jury made a decision.

Johnson's lawyers told him that if he exercised his right to appeal, he'd be lynched there on the spot.

So not wishing to be lynched there on the spot, Johnson waived his right to appeal.

Because of the way that the trial took place, the family approached two black lawyers in Chattanooga, and two black lawyers that considerable a risk to their persons, their livelihood, and their professions decided to take on the case.

And that's how the case winds up in the lap of Justice, Justice Harlan.

Justice Harlan was the most faithful to the ideas of the founders of this nation, the things they wrote, the things that they said, he was more faithful to those ideas that were expoused than most other people in the United States at that time.

So Ed Johnson was a young man who was convicted under extremely brutal circumstances after the Supreme Court intervened in the case, he was taken out of the jail as Peter say it, he was taken to a bridge that went across the Tennessee river, he was strong up with a rope, the rope fail, and he was then shot multiple times in his body until he died, that's Ed Johnson.

- And I appreciate you expounding upon that.

And I've received that question about who is Ed Johnson, and it's a complicated question because we don't know a great deal about Ed Johnson's life.

We know that he was a son, we know that he was a stone mason, we understood what he also worked at a time, he worked at a saloon additionally, and we know a bit about his disposition.

And as we see his story and his life unfold around the trial, we learned about his character, and with his final words, God bless you all, offering this blessing upon people who are seeking to take his life and stating his innocence.

I think that there are a lot of folks who've learned about that, that element of Ed Johnson, his life, and I think that they find that very compelling.

And I wanna back up and ask you all both a question, and so you've described the scene outside the jail, excuse me, the scene outside the courthouse during the trial.

And judge you describe what was happening inside, were these dynamics common for the day, mobs outside, people speaking in that manner inside courthouses?

- Well, we're talking about a young Black man who's been accused of rape, which for the White population, especially at that time was the most inflammatory charge you could bring against a young Black person.

Johnson is unusual in that he actually went to trial, most lynches that occur in the South with that type of accusation, never result in a trial at all, the person was murdered before the trial.

So here we have someone who's accused of that heinous crime who actually has a trial, who's actually convicted at trial, but instead of the law running his course, he's lynched by the mob, that's extremely unusual.

I don't know of another case like that out of all the thousands of lynchings that took place, I'm not aware of another one where the lynching took place after the trial.

The closest one would be the Leo Frank Case, Leo Frank was Jewish, he was not black.

And the mob broke into the state prison and took him out of the state prison, and they brought him back to Marietta, Georgia and executed.

That's one of the case that even comes close, that I'm aware of.

- So, Peter.

- I might add one thing that's really noteworthy about the Ed Johnson case, and that is that, I think that in so many of those other lynchings that you referred to judge that happened before the trial, a lot of them were probably conducted by the KU Klux Klan, by people wearing robes, hiding their faces and the leaders of the community, the sort of so-called good people, the moderates, the whatever, you know, could sort of say, well, this was the work of a group of ruffians, they were work of extremists, the work of violent people, we're not like that.

I think with the Ed Johnson trial and aftermath showed, and then the trial that occurred at the Supreme Court afterwards, they haven't even talked about yet, what it showed is that so many of the good people in the community, the journalists, the preachers, the judge, the sheriff, the elected officials, et cetera were fanning the flames of anger and were abetting a lynching rather than trying to stop a lynching, and that I think is very clarifying.

I think that one of the things that is, now we're looking back 120 years to that date, the fact that we can say that there's this hugely documented records on the Ed Johnson case, that we know what happened here, there was no room for ambiguity, there's no room for disagreements, there's no room for someone saying, well, wait a minute, you know, that was only a few people here.

It was perhaps 1000 people at the scene and a very large number of people behind the scenes allowing that to happen, letting that happen.

And I think that the actions by Justice Harlan, but also by the attorneys in the case, the courage of Noah Parden and going up to Washington and taking this case and for African-American attorneys, it was a tremendous risk to their own lives and their own health to do this.

That record is what enables Chattanooga today to have a real conversation about Ed Johnson, and it's also something that, you know, offered an opportunity for the Supreme Court to at least finally, after many decades, you know, make a statement about their concerns first about the terrible criminal justice procedures in the South, particularly directed at African-Americans, but also the horrendous complicity of local officials in this lynching that was also an act of defiance of the Supreme Court defiance of the US constitution.

And so this is a landmark moment in American history, and I give great credit to the people involved in the Ed Johnson project for really bringing it to people's attention.

- One of the points that Peter just made, I think is worth discussing a little bit more.

One of the statutes that was passed after the Civil War was called the anti-Ku Klux Klan statute.

It was designed to combat lynchings and other acts of brutality against blacks.

And so the Supreme Court found that that act was unconstitutional and could not be enforced.

So in many of these other lynchings, the only way that the federal government could be involved, if those statutes had been of hail and since they were not, the federal government did not have the authority to do anything, and the states would not prosecute the cases.

And we don't have examples of this, but I think if these states had decided to prosecute some of those cases, the jurors would have found the defendants not guilty, so the result would have been the same people who committed these atrocious offenses would not have been punished.

The Johnson's case is different because there was a trial, there was federal court intervention.

When the Supreme Court decided to take the case, they stayed this execution, and they also placed Johnson in the custody of the Sherriff as an agent of that federal government.

So Ed Johnson was in federal custody at the time that he was killed.

So that's a huge difference from these other lynchings.

- So we've got a couple of questions for you both, and forgive me for actually asking a compound question.

First of all, how did this case get before Justice Harlan and what was it about Justice Harlan that made him the person to actually hear it in the manner in which he did and then intervene in the manner in which he did?

- The Supreme Court assigns to each one of the justices jurisdiction over a circuit, and the country is divided into various circuits, geographically.

The circuit that includes Tennessee, the sixth circuit is Tennessee, Kentucky, Ohio, and now, and now Michigan.

And Justice Harlan coming from Kentucky, was the justice assigned to the sixth circuit.

So any emergency case, not a routine case, but an emergency case would be presented first to that justice.

So Justice Harlan was a justice who was assigned that case, and this was an emergency, a petition that was being filed.

The other two black lawyers had requested a writ of habeas corpus, that is they wanted to state the show that he had been convicted in accordance with the federal constitution, that had not been done done before.

And their district court judge at the time, it was seated in Knoxville denied the request, because this was novel, it was new, there was absolutely no authority for it.

So when he denied the case, then the next step is to ask the Supreme Court to review that decision.

And the younger lawyer, Parden took the train to Washington, met with Justice Harlan and presented the matter to Justice Harlan.

What he's asking was completely unprecedented, and I don't think anyone in their right mind would have thought had a chance of Supreme Court actually taking it.

He was asking for the Supreme Court to actually change the relationship between the federal government and the states, that had not been done before and unsettled what was assumed to be the correct interpretation of the constitution and the relationship between the state and the federal government.

So it took an awful lot of gumption for these two black lawyers to actually make the request.

Now, they were fortunate that the case went before Justice Harlan because Justice Harlan was the dissenter in Plessy v. Ferguson.

And I think Peter made this clearing in his book when he wrote this dissenter Plessy v. Ferguson, he used an ink whale that Chief Justice Tony used in the Dred Scott Case.

- That anecdote is true, it actually was the civil rights case dissent in 1883, that he used the inkwell from Tony.

He may have used it also for Plessy v. Ferguson, but we know for sure it was in the civil rights case.

But you were asking also Donivan, why Harlan, why Harlan would have a different view on this?

I think there are many, many factors that went into Harlan's different on these race cases.

One that is discussed in my book is his relationship with Robert Harlan, who was believed at the time to be his half-brother, but African-American, grew up in the same home, was older, sort of more of an uncle figure kind of to the young John Marshall Harlan.

But Robert Harlan became a very wealthy man in, he had this sort of unerring sense of where African Americans may have opportunities in to do well.

One was in horse racing, right at the birth of horse racing, then he went to the gold rush and made a lot of money equivalent to like 4 or $5 million today.

He then went to Cincinnati and invested in Black owned businesses at a time when that was the permanence of the underground railroad.

But Robert Harlan became a famous man and then he became the leading Black politician in Ohio after the Civil War, and a supporter of John Marshall Harlan, someone who played a role in helping him promote him for the Supreme Court.

So when you know somebody like that, it's very hard to believe as I think some of the Northern justices did, some of these theories of, you know, what Black people can and can't achieve, that's one factor.

I also think that he felt that those compromises, that to prevent the Civil War that he was advocating for as a young man and his father had been very active in them and Henry Clay, his hero had had been active in them that they really didn't work.

So he felt like it was important to take a strong, legal and moral stand, and I think he had actually spent just before going on the Supreme Court, he had been part of a commission that went down to provide information, to do sort of fact finding in a disputed election in Louisiana.

They went down to New Orleans and saw just how bitterly divided everything was, now violent the situation was there, there was rival Republican and Democratic government, there were tremendous murders during the, mostly of African-Americans during the election that year, it was a brutal situation and the federal groups were still there in New Orleans.

Now for political reasons, Hayes had pretty much decided to pull out those troops.

I think Harlan agreed with that decision that you couldn't keep troops in the South forever, but I think he did believe strongly that the law had to fill in where the troops had left.

So, you know, you can't at gunpoint preserve people's rights, but the courts had to step in and do that.

And he was sorely disappointed obviously by what happened afterwards, but was strongly committed doing his part through the law to promote equality.

- Do you think that from both of your understanding of the relationship between the sort of the federal courts, the federal government, state courts, state governments, and the early part of the 20th century, that the Supreme Court got a sense of what this meant for the future of American politics, for the future of American jurisprudence ruling on the Ed Johnson case in this manner?

- I think they had to understand that this was a big step.

I don't know though that they could have predicted the results of it.

We don't think it is unusual now for someone who believes they've been brutalized by a police officer to file a lawsuit against the police officer, we don't think it's unusual for people to file a lawsuit against conditions in state prisons, we don't think it's unusual now for people to go to federal court to protect their civil rights.

All those things came either directly or indirectly from the justices struggle in the Ed Johnson case, because they took up the Ed Johnson case They were saying that if presented with a case where someone is given a trial, that is fair in form, but not in substance, those roles for the federal courts, that was new, that was revolutionary, and because of that, we take a lot of things for granted now that was not only was not accepted back then, but the opposite would have been the prevailing thought.

So it had a tremendous impact, and I'm not sure that anyone could have predicted that our jurisprudence today would result from what happened to that young man on that bridge in our Tennessee a little bit over 100 years ago.

- I agree with what the judge said.

I also think that the willingness to try Sheriff Shipp was a very unusual thing because the Supreme Court had never sat as a trial court, and we didn't have anything like the prosecutorial, legal, you know, lower court apparatus of the federal system that we have now.

So never before and never since, since the Supreme Court actually said, okay, we're gonna try somebody for contempt of court.

And that involved as the judge alluded to earlier, all these unusual steps where the president had to get involved and there was no FBI, the secret service had to go down to, they deployed a couple of people down to Chattanooga to investigate this case, they engaged in fact finding, the Supreme Court faced a very serious challenge to its own ability to hear the case and Justice Holmes wrote an opinion defending the right of the court to enforce its rules, its rulings, and ultimately Sheriff Shipp was found guilty, and you know, that was a landmark moment as well.

You had an elected public official who was criminally convicted for allowing this lynching to take place by leaving the jail unguarded, quite a moment in American history.

- That's the certain most important resolve of the Ed Johnson case.

Imagine what it would say to not only the South, but elected officials and the rest of the United States, if for the first time in history, the Supreme Court intervenes in a state criminal proceeding, they issued an order, they put a defendant in federal custody and local officials allow the person to be killed, if they don't do anything at all, that then would suggest that officials are free to willy nilly ignore Supreme Court decisions.

And Supreme Court could see that not only in this type of case, a case involving a criminal complaint of rape, but in many other instances, they might be issuing orders, and if officials feel free to just ignore Supreme Court order, then there'd be chaos.

And the authority of the Supreme Court would not be avoided what had had been.

So I think the Supreme Court felt it was essential that they had to exert their own authority.

So that's a huge, huge impact, a huge, huge consequence of this case that can not be overstated.

- For a moment, let's imagine if there was never a mob in March of 1906 that broke into the jail and accosted and defiled and killed Ed Johnson, in the manner in which they did, that Ed Johnson would have lived, what do you think the legal implications would have been if Ed Johnson's life would've continued on from the way in which the Supreme Court stepped in?

- Well, what the Supreme Court did was by taking the case, indicating that this was a serious issue that had to be decided, we don't know what they would have done.

The next case that they had was the Leo Frank case, and they use the arguments in the Ed Johnson case, and they said, again, data presented with a proper case where someone has a trial in form but not in substance, it might be appropriate to step in.

- Can you tell us who Leo Frank was?

- Leo Frank was a young Jewish man who worked in a factory in Atlanta, and a young white girl was raped, I believe she was killed also and murdered.

And again, on shaky evidence, Frank was accused of the crime and he was convicted, and there was appeal from his conviction, state court laws.

Justice there Johnson's case, there was a petition to the Supreme Court and Supreme Court used the same theories that had been espoused in the Johnson case by saying that if someone is exposed to a trial, that appears to be fair in form but not in substance, there might be a role for the Supreme Court, but they said, this is not enough, there's a mob outside Frank's trial there were threats to a murder.

And in fact, as Frank court turned down the case and he was sentenced back to, he was sent back to a state prison, he was facing the death penalty, the mob broke in and they lynched him.

So the lynching did take place.

So we don't know what Supreme Court would have done, they may have said if the proper case were presented, we may do this, but this is not the proper case, so we don't do it.

They didn't do it until about 15 years after the Johnson case on the case, the Elaine Arkansas race massacre, and they took that case up and they said it, and they set aside convictions in that case.

It wasn't the same theory, (indistinct) by those two black lawyers approaching Justice Harlan in 1906.

- You know, one thing I might add to the conversation here, since we're talking about, you know, these young White women who are raped and that hysteria that it sets off and the rush to judgment and trying to find people that the, in this case, the victim, Nevada Taylor, who I think was 21 years old, she did not make a definitive identification of Ed Johnson.

You can imagine the pressure that she would have been under, the initial mob that showed up at the jail the first day that Johnson was arrested, her brothers were part of that, and we're helping to sort of whip up the anger towards him.

As the judge alluded, there people all around the courtroom, in the courtroom, members of the jury, frothing with anger towards Ed Johnson, and yet there she is on the stand, and she'll say things like, well, he had, he had the kind of voice that I remember the attacker having, she said at various points, when they kept asking her, she said, well, I believe it's him, but then they would say, but are you sure it's him?

And she would say things like, well, I don't wanna send an innocent man to the Callos and stuff.

And ultimately when they started pounding her with questions saying, you know, before God, can you say that this is the man who attacked her, she broke down in tears, you know, she would not go that far.

And it probably was a statement of her religious principles, but maybe also her character, she wouldn't give them the answer they wanted.

And even though that was not one of the legal issues in the case, per se, in the larger history of this case, it should be noted that sometimes people kind of do the right thing, sometimes their character and their religion comes to the, comes to the fore at a very pressured moment.

And so of all the many villains in this case, she was not one of them.

- Earlier, you said, when you were talking about how typically with lynchings they're masked, it's at night, and this one was certainly at night, but you described all of the communal pieces that were present.

So judges, sheriffs, thousand people on the bridge, and you're describing all this community pressure, there's so many facets and factors within Chattanooga who really wanted Ed Johnson to be guilty, and consistently she never said unequivocally that he was the person.

And I honestly, until you said that I never, her reticence is present, her fear seems evident, this crisis beyond, so she's being attacked, she was attacked and assaulted in this fashion, and then you've got this community wide kind of attack to steer the evidence, to steer her to say something, and it's true, she never does say it, she never does say it.

In light of your years of service, research, the book on Justice Harlan, your work as a judge within the circuit and our time today, as we are in this profound moment in our country, where there's an attempt to reckon with our racial history, and there's an attempt to even reckon that which happened on January 6th, we've recently left Afghanistan, we're dealing with COVID, the entire world is dealing with COVID, but we have our unique relationship.

We're in a time where there is a great amount of stress and anxiety in the country, for all these reasons that I noted, and there are folks who are also feeling a lot of anxiety about the changing demographics of the country.

A lot of this moment, what from the life of Justice Harlan and its legacy related to the life and the cases surrounding Ed Johnson can we learn that matters today that we should seek to implement into our lives?

- Well, I think there are an awful lot of positives from Justice Harlan's life.

He grew up during the time, there was huge dissension in the country, and a huge debate, and not only about slavery, but also about the relationship between the states and the federal government, the relationship between the Northern states and the Southern states, and he saw the divisiveness and the hall that can result from that, if the extremes are allowed to grow too big and are not challenged.

He also saw that if you undermine institutions because civilizations and governments have built up on institutions, many institutions, not just one.

And in times of division and bitterness, those institutions become weakened and they're not able to sustain a civilization.

He fought in the Civil War, he saw battles and he probably saw death in the Civil War.

And he also saw the aftermath of reconstruction, where he saw tremendous harm to the Black population in the South.

We survived all that, as a nation, we have survived great challenges in this country, we've survived a huge war, we've survived economic challenges, we've survived environmental challenges, and I think we will survive the challenges that we face today.

We're gonna do it in ways that we did not think about beyond us, but we are a very resilient people, we're going through some tough times right now, but tough times don't last forever.

- I would add that Justice Harlan came to believe strongly in the principle of equality under the law, and how he saw that, you know, inequality was sort of the great danger to the American experiment.

He grew up in a very patriotic household believing in the declaration of independence, believing in the constitution.

He was named for the great Chief Justice John Marshall, the man who in his view, sorta asserted that the principle, the lawsuit proceeds politics in asserting judicial review.

The constitution is the King in the United States, he strongly believed that, but he came through time to see that slavery was the great, the great sin, the great tint in the armor, the thing that almost destroyed this form of government that he so strongly believed in, but then he carried that lesson with him onto the Supreme Court, after the Civil War.

And it wasn't just that he was such a strong voice against segregation and in favor of equality, in terms of African-Americans, it popped up again in the first decade of the 20th century, when the United States took over the Philippines, Hawaii, Cuba, and Puerto Rico, and there was a period of talk of American empire, and Congress was holding those territories without granting the people their constitutional rights, and Harlan did a series of dissents, his last great sort of series of dissents were in cases that limited the rights of people in those areas, and he strongly believed in the principle that the constitution follows the flag.

And he very strongly said that, you know, you cannot have two groups of people living under this country, one under the rights and responsibilities of the US constitution, the other under some cobbled together rule of Congress or the military, you need, the constitution needs to be king everywhere that it was the United States was in control.

I think that you're hearing him directly talk about the lessons of the Civil War, the lessons of slavery, the lessons of all of American history up until that point, we're talking about the first decade of the 20th century.

But I think that those lessons are very valuable today, and people need to feel that sense that they are being treated equally, that their rights are equal, that as Harlan said, the humblest is the peer of the most powerful under the law in this country.

And, you know, that's missing in a lot of the mistrust that people feel towards institutions and the people in power.

- So often we think of history, we may have the tendency to think of it as that which is written and preserved and promoted in schools sometimes expressed in film.

But to hear you both talk today, I'm reminded of the both powerful complexity of that, it isn't simply something behind us that it's living into our moment.

And interestingly enough, I feel more hopeful about our moment into our American moment now, and more hopeful about the potential, thinking about the resilience indeed we have overcome quite a bit, and that the choices that are in front of us, that we have the power to innovate.

We've innovated throughout our existence as a nation, and we still have the power to innovate and consider choices and an absolute respect to the legacy of Justice Harlan and demanding that we take hold and maintain this reality of that all equal under the law.

And that I really respect his link between the past and the present, and often that's something that we can lose.

Judge Collier, Peter Canellos, thank you so much for joining us.

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