Eric Foner: Reconstruction and the Constitution

With debates over citizenship, voting rights, and due process raging, Columbia University historian Eric Foner wants us to reexamine the moment these rights were enshrined in law: not in 1787, but in the mid-19th century, when Constitutional amendments triggered by the Civil War moved the concept of equality from abstract idea to federally enforceable law. Foner, whose previous works on the Civil War and Reconstruction have won the Bancroft, Lincoln, and Pulitzer Prizes, comes to CHF to discuss his newest work, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, and reveal how the tumultuous history of these consequential rights has shaped the battle over their meaning today.

This program is generously underwritten by Harpinder Ajmani in honor of his late parents, Labh and Rajendra Ajmani. This program was recorded on November 2, 2019.

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[silverskid]

Recap:
>>Reconstruction era Amendments amount to a "2nd Constitution;" those who wrote them (e.g. John Bingham, Ashley, et al.) are not household names like the founders though. Most know little about them or the project of reconstruction and how profoundly it has shaped and continues to shape US Society. Examples of unresolved questions based on the "unfinished revolution" =
-Who gets to be a citizen, where and how? (We fight about it now in terms of immigration etc.)
-Who gets to vote? (We still argue about vote suppression et al.)
-How should we deal with homegrown violence and terror?
For much of 20th century William Dunning and his school of interp. Recon. prevailed (til 60s).
-Blacks couldn't stand on their own feet and so recon. failed.
-Recon. was imposed by outsiders and they "didn't understand race relations"
-Giving blacks vote was a mistake. (much of this is "lost Cause " history).
After Civil Rights era this is debunked (largely by Foner himself btw).
-Citizenship in Recon. becomes a birthright rather than race-based. (Born here = auto. citizen)
To grasp the Recon amendments (13, 14, 15) we must go beyond court documents and search for orig. intent etc. We should look at what various groups in the country were trying to accomplish, and the legacy for ourselves. Look at how things were and weren't implements etc.
13th = 1865 abolishes slavery. 1863 Emanc. Proclam. did not apply to border states like Kentucky, Delaware, Maryland, Mo. = 3/4th of a million slaves.
-Abolitionists, not Lincoln, originated 13th, campaign coordinated by Women's National Loyal League headed by Susan B Anthony, Elizabeth Cadie Stanton in 1864. They petitioned the congress in 1864. Charles Sumner proposed that it be modeled on French Dec. of R. of Man (fr. rev. 1789) other congressmen said, no write it in Anglo Saxon legal precedents. It did so, and drew on Northwest Ordinance of 1787 (based on Jefferson's propossed land ordinance of 1784). It bans "slavery and involuntary servitude except as punishment for crime." That last part on crime will become imp. in recon story. Petty crime > prison labor in Jim Crow South. This was unintended conseq. of punishment exemption of 13th. Mass incarceration and prison labor are still issues now. (see movie 13th)
-Most Republicans were not abolitionists but agreed that slavery was the basic cause of the war; that it had to be ended. But what would be status of freed slaves? Would there be equality? In what sense? There were unresolved by 13th. Johnson comes into power/deeplyracist/ can't work w gov't/ favors white southerners who enact the Black Codes which force all blacks to sign a contract for labor each year or else be labelled a vagrant which can then be punished (recall the punishment exemption).
-Republicans -- alarmed by Johnson-- still ruled Congressin 1866 get 14th Am. which is really an extension of 13th and grant birthright citizenship *except* for Native Americans. This is still being fought today. Trump has challenged birthright if your parents were illegal immigrants. But 14th Am is clear that it doesn't matter who your parents are (except in case of Natives).
- Johnson vetoed the law as being "against white race." But the congress got it passed shortly thereafter and Johnson gets impeached. "All citizens have equal protection of law." Due process; privileges and immunities etc. These abstract but powerful phrases will have to be given concrete substance in law subsequently in courts. We still argue about these terms. Of course 14th has been incorporated and so this is sometimes called the Second Constitution. It's almost a kind of "regime change" Foner says.
Relation of Fed to states changes. 1st Am. = "Congress Shall make no laws regarding" -- note that doesn't mean individual states won't make them. So at the federal level (which was weaker before 1865) you have freedom of speech. But if you try to make an aboltionist speech in the South prior to Recon you would have been breaking state laws. So 14th Am. imagines a much more robust central state (c.f. prob. of subsidiarity, and state rights/decentralization) Language was non-racial; language was of "persons and citizens" hence it can apply to things like LGBT, gay marriage (and more darkly, Corporate Rights and Citizens United example).
NB: 14th empowers Congress to enforce these rights in ALL states. While founders feared overpowerful central state, but now all 3 Recon Amendments move from the language of "Congress shall make no laws regarding X" to "CONGRESS SHALL HAVE THE POWER TO ENFORCE THIS AMENDMENT" A PHRASE AT THE END OF ALL 3 RECON. AMENDMENTS. It made Fed. Gov't "custodian of freedom" in words of Charles Sumner (Republican from Mass. at time). Very radical stuff, it's about power, not just liberty. It is sweeping change that is mandated, not negative liberty. We speak of "Radical Republicans." 14th Am says nothing about right to vote, but having seen Andrew Johnson's attempts to cripple blacks with the "Black Code" and other maneuvers, we get a 15th Am. to make it clear that ...
15th AM. = 1870 = "No citizen shall be denied right to vote for reasons of race." This = "Radical Recon" era, but due to abstract nature of the language it technically left room for other reasons to deny the vote such as illiteracy, poverty (i.e. poll taxes), it also enraged feminists as it left states free to continue barring women, et al. Had it been written positively: All persons/citizens over 21 shall be granted right to vote" it would have prevented decades of anti-voting laws. But at time this was radical. Even in the North few blacks had the vote, now all had it in principle, and for a while most exercised it (during Radical Reconsruction era). Then we had to wait til 1960s.
-1870 15th AM ushers in a bold experiment in bi-racial democracy in which blacks not only vote but run for office and become elected gov't officials. But blacks remained poor, lacking in property. So political rev. went forward but not the nec. economic revolution. But the progress of blacks voting and serving in office greatly angered white southerners, and many white northerners backed away from the issue, and as organizations like the Klu Klux Klan emerge, Blacks are weakened and challenged and ultimately, in a sense defeated despite their significant accomplishments during the Radical Recon era. Soon (1877)the Southern States were back in the hands of white supremacists. From 1880s-90s Jim Crow coalesces with segregation, segmented labor, disenfranchising (no vote), cutbacks in funding education for blacks, extra-legal lynching tolerated et al.,
Jim Crow was largely argued and justified by the alleged "misgovernment" of Reconstruction. The North had no appetite for arguments by this time, and it fell to the Supreme Court to decide how to interpret the Recon Amendments. They did it in a way that allowed Jim Crow to be (supposedly) consistent with the law of the land including the 3 Amendments. How?
Foner calls it "the long retreat from racial justice." It was a gradual erosion of rights by detailed arguments which were then used as precedents for later ones until you had a legal framework which functioned for white southerners, i.e. allowed the injustices. Some arguments were made from Federalism (back to founders who feared strong central gov't) or State Rights (as a guise for institutional racism). We see that if the Supreme Court consists of reactionaries ( who want to turn clock back, etc.) Constitutional Rights are not necessarily guaranteed. A lesson for us today, he says.
By 1900s the dye was cast. A new historiography (Lost Cause and the Dunning School) became paradigmatic; and in Supreme Ct. decisions, even Felix Frankfurter, Justice Jackson andand others would refer to "familiar history" in rulings as late as 50s. One decision said, "it is common knowledge that reconstruction was driven by a vengeful spirit." It would take revisionists (like Foner following DuBois and others) to overturn this racist history in which "blacks were incapable of functioning like whites." Justice & Jirisprudence published by Brotherhood of Liberty (fr. Baltimore) = 600 page critique of bad rulings, and an alternative reading. These were black ministers and lawyers. They inferred (from priveleges and immunities) public rights = access to public facilities like bathrooms, shops, housing rights, transportation, employment opportunities. "Can a citizen really be daily excluded from the paths of industrial progeress and yet be a citizen of the United States?" they asked. "Too many rights have been lost upon reaching the graveyard of liberty-- the Supreme Ct. of the USA."
Commerce Clause and not 14th was used in Civil Rights 1964 anti-discrimination laws, because supreme ct. never reversed all the 80 yrs. of 14th AM. decisions that had found grounds to discriminate. Commerce Clause = free flow of goods between states = far afield from the race issue. But to admit that for 80 years these amendments were used to justify discrimination and racist policy was too much for them. Even now, there are some "bad" (Foner says) laws still on the books that make Supreme Ct. "look foolish."

[scottscottsdale]

Can we get prof Foner to speak about Trump and 14th amendment.

[stacyMighty]

Was the bridge to freedom built on a woman's back, in particular a single mom of 4, and was she already struggling to keep her head above water. Also, was she an American or a foreign born legal Green card holder with United States Citizen Children... all 4, years 29, 22 and twins 17. I am just curious about the 2019 agenda. Did the brown skin mixed race and culture woman have a right to life, liberty, justice, or even freedom. When she worked hard to build her life without government assistance, is she still considered poor, or based on her female gender speaks for itself?

[ИринаКим-ъч]

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