On June 19, 1865, Union soldiers, led by Major General Gordon Granger, arrived in Galveston, Texas, with news that the Civil War had ended and that the enslaved were now free. President Lincoln’s Emancipation Proclamation had been issued over two years earlier, and the South had surrendered in April 1865, ending the Civil War. So why did it take so long for Texans to hear the news of their freedom? Why do we celebrate Juneteenth as Emancipation Day? And how did emancipation finally become a reality under the Constitution and throughout the nation?
We answer those questions and more on this week’s episode featuring Martha Jones, author of Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All, and Lucas Morel, author of Lincoln and the American Founding. Jones and Morel trace the story of the fight for freedom and equality in America from the Declaration of Independence through the founding of the country and the Constitution; the Civil War and the Emancipation Proclamation; the ratification of the 13th Amendment; and beyond. They also highlight some of the fascinating figures and movements that shaped Black American politics and history. Jeffrey Rosen hosts.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Jackie McDermott, Anna Salvatore, and Lana Ulrich.
PARTICIPANTS
Martha S. Jones is the Society of Black Alumni Presidential Professor, Professor of History, and a Professor at the SNF Agora Institute at The Johns Hopkins University. She is the author of the book Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All.
Lucas Morel is the John K. Boardman, Jr. Professor of Politics at Washington and Lee and a professor in the Master’s Program in American History and Government at Ashland University. He is the author most recently of Lincoln and the American Founding.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES:
- Juneteenth at the National Constitution Center: programming and resources
- “What to the Slave is the 4th of July?” We the People episode on Frederick Douglass’ famous speech featuring Lucas Morel
- "The Words That Made Us”: Live at the National Constitution Center episode featuring Akhil Amar
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: I’m Jeffrey Rosen President and CEO of the national constitution Center and welcome to we, the people who weekly show of constitutional debate. The national constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. June 10 is the holiday commemorating the end of slavery in the United States that's this Saturday June 19 2021 on today's episode we explore the history of Juneteenth, emancipation and equality in America under the Constitution with two of America’s leading scholars of the Constitution. Martha Jones is the society of black alumni presidential Professor, professor of history and a professor at the SNF Agora institute at the Johns Hopkins University. She is the author of the book vanguard how black women broke barriers one vote and insisted on equality for all Martha, it is an honor to have you back on the show.
Martha Jones: Thanks for having me.
Jeffrey Rosen: And Lucas Morel is the john Kay Boardman junior professor of politics and Washington and Lee and a professor in the master's program in American history and government at Ashland university. He is the author, most recently of Lincoln and the American founding Lucas, it is an honor to have you back on the show.
Lucas Morel: Thanks for the invitation great to be back.
Jeffrey Rosen: On June 10 1865 major general Gordon granger issued a general order in Galveston Texas. The order response, the people of Texas are informed that, in accordance with a proclamation from the executive of the United States all slaves are free. This involves an absolute the quality of personal rights and the rights property between former masters and slaves and the connection here to for existing between them becomes that between employer and hired Labor The freedom in our advice to remain if they're present homes and work for wages there and form that they will not be allowed to select a military posts, and they will not be supported in idleness either there or elsewhere.
Martha, President Abraham Lincoln’s emancipation proclamation was issued on January 1 1863, why do we commemorate June 10 which took place two years later?
Martha Jones: it's important to remember the very substantial limits of President Lincoln’s emancipation proclamation in 1863 it was a military order. A part of Lincoln’s strategy that looked to, in a sense, pronounce enslaved people in rebel held territories to now be free. But we recognize that the President did not in fact have the capacity to enforce that order in those parts of the country that remained under rebellion. And then we have to recall that there are four states that remain in the Union, the so-called border states. That continue to be slave holding territories that are exempt from the emancipation proclamation because they are not in rebellion.
So that is a long way of saying that very few enslaved people are in fact liberated by the emancipation proclamation slavery's abolition will require. An amendment to the Constitution that I know we'll talk about the 13th amendment and then finally word of that constitutional amendment will arrive in Texas, but only months after.
Jeffrey Rosen: Thanks so much for that. Lucas, Martha has told us that the emancipation proclamation did not immediately free to enslave people. Further, although general Robert E Lee surrendered his troops in Virginia In April of 1865 Texas continued to fight for nearly two months after that, why did that fighting continue and why is Juneteenth significant.
Lucas Morel: that's a great question the fighting continued in part because most in fact we'll put it this way, very few soldiers of the United States army were at that point in Texas, most of the fighting took place elsewhere, and so, by the time we're got to Be enslaved black people in Texas through that order of general granger's on June 19 1865 yeah the war pretty much was over by that point, but as Lincoln himself said in the emancipation proclamation, this is an act that's going to take if you will, to tango the slaves would need to themselves. Do what they could, as he put it to make efforts they may make for their actual freedom, it would actually require them to free themselves from any limitations that were. Up till that point in time, being placed on them. But even after that their own if you will self-emancipation or liberation would amount to nothing unless they had the law that is to save the Federal Government on their side and Lincoln’s emancipation proclamation. As it followed the second confiscation act of Congress did precisely that we have to remember that just because a person flees from enslavement most famously Frederick Douglass did this. When he made that public in his autobiography the famous narrative he actually within months had to flee to the United Kingdom, precisely because he was in outlaw. He physically removed himself from his in slaver but the laws of the United States and of the state of Maryland did not consider him a free person until he was legally mandated and that did not happen till two years later. When his friends, both on both on both sides of the pond, if you will, paid for his liberation so required both it required both the Agency, as we say, today, the initiative. The self-emancipation of the enslaved as well as the federal government saying, those of you who be who come into the authority of the navy or the United States army will be. defended in their freedom, by the Federal Government, so it took both and so that that's why you know Lincoln could say something on January 1 1863 and what that did is actually turned the US military into a liberating army.
Jeffrey Rosen: Such a crucially important point, it took both the action of the Federal Government and the action of. Formerly enslaved people to make freedom a reality Martha Jones in your book birthright citizens a history of racing rights and antebellum America.
You argue that it's blank advocacy and ultimately shapes nations understanding of what it means to be an American citizen. Tell us about some of that advocacy in the antebellum period and the figures that we the people listeners should know about who are crucial in making emancipation a reality.
Martha Jones: But it is true that even before we get to the period of the civil war black Americans have for many decades, yes, pressed for freedom. But then have pressed the question, what then is freedom isn't there a substance to freedom that would include citizenship. That would include political rights would include the capacity to protect ones person on one's property before the law. And so, in the years really the decades before the civil war free black Americans have already been at work on the kinds of questions that are now going to confront formerly enslaved Texans in June of 1865. What precisely does freedom mean and when we look closely at the words of that June 19 proclamation we recognize that there is a debate that is already underway. What is the relationship between enslaved people and former slave holders, what are the obligations of formerly enslaved people to work, will they indeed have political rights, may they travel? These are all live real questions that no one edict will resolve in this period, but we appreciate the ways in which this particular edict In a sense, has a big question mark at the end of it because enslaved people formerly enslaved people will have their opportunity to respond not only with their words but the when they're with their actions.
Jeffrey Rosen: Thank you so much for that Lucas in your book Lincoln and the American founding you argue also that June 10 is related to July 4 because, just as July 4 declared certain truths to be self-evident America had to fight for it for years to make it a reality, and similarly for June teen so tell us about the relationship between Lincoln and the founding and Juneteenth yes.
Lucas Morel: Thank you for that question I’ve always understood the holiday Juneteenth. In light of, if you will, our first emancipation proclamation so to restate that I’ve always understood Lincoln’s emancipation proclamation in light of the nation's first emancipation proclamation, which is the declaration of independence that was issued on July 4 1776.
July 4 stating as a self-evident truth that all men are created equal that they've got the rights to life, liberty and pursuit of happiness that the only legitimate government is government by consent of the governed these can all be true. In principle, but they require, of course, enforcement the very thing that Americans American revolutionaries believed was lacking as a result of what they believed it was a growing tyranny by.
The erstwhile mother, England, if you will, and so, even though we declared our right to rule ourselves as any free people naturally have that was a truth that didn't become a practical reality until we sued for peace, as it were, with Upon military victory right it didn't come on July 5, 1776.
It didn't come the following year It came at the beginning with the surrender of Cornwallis at Yorktown in 1781 and then a formal diplomatic legal process between at that point two nations, the United States and Great Britain in 1783 and so, just like the first emancipation, the declaration of independence, so to the Juneteenth June 19 1865 proclamation these were words that were meant. To have efficacy legal advocacy but that efficacy would take time and that's why I have written. On several occasions that Juneteenth is a very distinctive American holiday in that sense.
In the same sense that our freedom and independence as a people came, if you will, by fits and starts so to the commemoration of black American liberation, as a result of not simply emancipation, but as a result, also of abolition of the actual institution that came with the 13th amendment later right passed by both houses, by the time January of 1865 rolled around than ratified by the States in December of 65, of course, many months after Lincoln’s assassination.
And so, this is kind of the American way it's two steps forward one step back.
Jeffrey Rosen: Two steps forward one step back. Martha, how do you see the relation between July 4 and the declaration and Juneteenth and did some of the heroic advocates of abolition who you write about in the antebellum period invoke the ideals of the declaration or not.
Martha Jones: Absolutely, the declaration in many ways is for black Americans before the civil war, a more potent a more vivid and more persuasive instrument, then, is the Constitution itself, it is the declaration that is the aspirational document that provides for, if you will, the ceiling right of what belonging to the nation can and should mean it is the Constitution right that is thorny.
That is a too often silent and difficult to interpret for black Americans oftentimes. But they read these two documents together, and this is a school of interpretation of the Constitution before the civil war, one that reads. The ideals of the declaration into the Constitution itself where black Americans argue phrases like the equal protection of the laws privileges and immunities of citizenship, phrases that don't have transparent meaning should indeed be understood in light of the values that the declaration has itself set forth. It's a bit of trivia but it's one I think that's important when john Quincy Adams argues the great makes his great soliloquy in the Amistad case arguing for the freedom of black captives who have found themselves now on the shores of the United States on it at risk for being treated as bounty. When he argues that case, what hangs on the wall of the Supreme Court is the declaration of independence. And two copies, in fact, and it's a reminder that, not only for black Americans but for all Americans, including at the highest echelons of law making the declaration continued to be a critical touchstone and black Americans know that and work to take advantage of that as they advocate for their own freedom and their own citizenship.
Jeffrey Rosen: Thank you for that inspiring image of the declaration sitting at the Supreme Court as John Quincy Adams argued the Amistad case. Lucas Morel, your book, Lincoln and the Founding, is central in understanding how people in the antebellum era interpreted the Constitution in light of the declaration. You talk about the influence on Lincoln of Washington, the declaration, the Constitution and others. You note that in his Cooper Union Address Lincoln cited to Franklin Hamilton and Gouverneur Morris as among the most noted anti-slavery man those times so tell us what Lincoln took from the declaration that inspired the emancipation proclamation?
Lucas Morel: Lincoln was President elect in December of 1860 when he received a letter from all people, Alexander H Stevens, who is famous, of course, ultimately eventually becoming confederate Vice President. But he is a man who gave a speech in November of 1862 fellow citizens of Georgia, arguing against secession, not in principle but, in practice, he said, Georgia has prospered as being a part of the Union not apart from it, and he wrote a letter to Lincoln. Saying that a word from you right now would be like apples of gold and pictures of silver pictures, meaning the frame around the apples of gold and Lincoln mold over that turns out to be an allusion to proverbs 25 and Lincoln writes a note to himself, where he connects the Constitution and the Union of the American States which he revere he reveres he connects it to what he believes it's the real cause of what he calls the philosophical cause of American prosperity which were not the Constitution.
Or the even the Union of the States, he saw those as means to the ends spelled out in the declaration so for Lincoln he cannot see one without the other, the Constitution and the federal union of the American States were to be revered only in light of as Martha pointed out earlier only revered in light of the aspirations of those self-evident truths of the declaration of independence and so Lincoln instead of saying well yeah I have to give these new words for this situation, he says, instead of new words we've got old words let's look at the words of Jefferson, if you will, the words of the second continental Congress, the words of the American Founders.
And those are the words that are apples of gold to us set in pictures of silver. These are the reasons why we should hold on to the constitutional union of the United States. And he took inspiration ironically enough from a former twig it's Lincoln was is one term in Congress, he took inspiration from that letter from Alexander Stevens to remind himself about what he needed to keep clear, as he prepared his first inaugural address, which would happen on march 4th 1861. And what was mentioned earlier of I market is really important about privileges or immunities Lincoln says, at the outset of that very important speech, that yes he'd be open, not just to enforcing the fugitive slave act which he is bound to do under the Constitution as President, because it is as they say so nominated in the bond, but he said he would welcome a new law a revision of the fugitive slave back that would also protect privileges or immunities and there's one group of people he's really having in mind there, and that is free black citizens, this is important enough to actually read. He said ought not all the safeguards of liberty known in civilized and humane jurisprudence, to be introduced, so that a free man be not in any case surrendered as a slave this is Lincoln as the incoming republican President of the United States, he said, at the same time, should we not provide by law for the enforcement of that clause in the Constitution, which guarantees quote, the citizens of each State shall be entitled to all privileges and immunities of citizens in the several states end quote. This is a passage that Lincoln also mentioned during his famous debates with Stephen Douglas a categorical white supremacist, and so I hate Lincoln interestingly enough, even though he does all he can to try to entice citizens who had who considered themselves not American anymore, because they have so called succeeded and trying to continue to keep Virginia and a few other slave states in the Union, at that time.
He still says, you want to talk about a few just lay back oh yeah I’m going to enforce it and, by the way, I wouldn't mind it being revised to be better. And that better part to make it more perfect I think he takes his cue from the natural rights that he believes the founders believed all men possessed.
Jeffrey Rosen: That's amazing I actually hadn't heard that before, and it is phenomenally important.
And that is wonderful it is so important to learn that Lincoln invokes the language that would become the privileges or immunities clause of the 14th amendment upon taking the presidency. Martha to what degree did that privileges or immunities language occur throughout the antebellum period among activists and what can I tell us about the connections between the declaration and the Constitution.
Martha Jones: Yes, black Americans have been careful scrutinizers of the Constitution, for many, many decades, by the time we get to this moment that Professor morale has just described why because they are looking for those places those clauses those phrases that might appear to offer them a toehold on standing before this Constitution.
So they were to the first I’ll say is that provision that requires the President to be a natural born citizen of the United States. Black American seize on this provision, and they say if the President is a natural born citizen, there must be such a category and are we not natural born citizens as would be any man. There is no color line in the constitution, there is no color line in that phrase, so this is important, and then the question now of privileges and immunities.
Black Americans interpret this to mean that citizens of the various States enjoy rights, equal to citizens of the individual States and this arises very early in the 19th century, when, for example, the new state of Missouri is looking to be admitted to the Union and Missouri presents a constitution, a state Constitution for congress's review and it is a constitution that bars blanket Lee bars the entry of free black Americans into the state.
Well, the question here is our black American citizens and, if indeed they are doesn't that phrase privileges and immunities mean that they cannot be regarded differently, whether it be they from the Pennsylvania or New York or Maryland or Ohio. Well, and unfortunately in my story at least Congress cannot agree on this point, but when we look through those debates in Congress. What we discover is not only do Black advocates understand the potential of this language in the Constitution, members of Congress do as well, there are those who fear it right, because it appears, perhaps to open the door to black American mobility, it appears, perhaps, to have the ability to override Missouri’s desire to draw to block black Americans from entry into the state. But black Americans recognize that Congress is divided and indeed they will continue to provoke lawmakers on this question.
It is one that we understand Lincoln to have spoken to Lincoln’s Attorney General Edward bates will subsequently in his own opinion speak to this question and affirm, for the first-time black Americans as citizens entitled to privileges entitled to the immunities of citizenship, and so it is a powerful argument that takes a very long time to get traction and to win, but it is one that black Americans are deeply committed to.
Jeffrey Rosen: One more round on this fascinating explication of the privileges and immunities clause of Article IV, Section Two. That clause says, the citizens of each stage will be entitled to all privileges and immunities as citizens in the several States Lucas Morel some abolitionists read that clauses, if it had an ellipses in it, and should be read, to say the citizens at each stage will be entitled to all privileges and immunities of citizens of the United States in the several States, suggesting there were certain basic privileges of United States citizens that couldn't be a bridge. And they read that to say the Dred Scott decision was wrong and indeed that slavery itself was a violation of the Constitution. Tell us more about the breath of that privileges and immunities argument?
Lucas Morel: Yeah I would hasten to add that it wasn't course conventional construction or interpretation of the Constitution, it was one of several that they drew upon and Frederick Douglass, of course, when he moved from being a pro slavery, a believer that the Constitution was pro slavery, then turn to believing that it was pro liberty, he read that, as well as other provisions of the Constitution to say that this categorically banned slavery, and Congress did in fact have the authority of the Article I Section Eight of their general grants of powers.
To ban slavery, not just where it didn't exist federal territories, but also were already existed Another provision was the bill of attainder clause of the Constitution as an example of an anti-slavery clause right if you have someone who has broken the law and it's been imprisoned for it, you could not seize his or her assets and deny those assets or rights to the sons or daughters of that criminal and, therefore, if by law, you enslaved a particular person that enslavement did not taint the children of that enslaved person and they said, good grief bill of attainder is right there.
States can't do that and so that was that, along with privileges and immunities, along with even ironically enough the provision to appeal to the Federal Government for aid in repressing insurrections domestic insurrections not attacks from without but attacks from within, if you will.
There was the general understanding that in the debates in the Constitutional Convention in 1787 that that was pretty clearly meant to apply not to just things like shays rebellion.
Of course, but slave rebellions well there were those like Garrett Smith and I sent her spooner and Wendell Phillips and Frederick Douglass who said well no Congress could actually say that slavery, as an institution Is a destabilizing institution for republican small our government and therefore anything that could undermine or subvert our self-governing way of life, Congress can act and the President can aid that and enforce that against that institution and, of course, Frederick Douglass the top of that list was slavery, and so I would say that the privileges and immunities clause in the federal constitution was just one of a number of the arrows in the quiver of antebellum anti-slavery advocates who are arguing that the United States constitution as Frederick Douglass put it leaned towards liberty. And so the onus the burden would be on slaveholders to construe those provisions on behalf of an institution that only had legality at the local, that is to say at the State level, not at the federal level.
Jeffrey Rosen: Martha, Frederick Douglass' conclusion that the Constitution leans toward liberty as Lucas says.
Follow the changing of his mind he didn't initially thought that the Constitution was a pro slavery document like the Garrisonians, but when he read Madison’s recently published notes published in the 1840s which said that the Constitution was careful not to convey the idea, there could be property in ma'am that changed his conception of themselves as a man and a citizen and he decided the Constitution leans toward liberty and indeed justice McLean in his Dred Scott dissent quoted Madison’s language to refute Chief Justice Taney his conclusion that the Constitution recognizes no rights which of black people which white people were bound to respect to what degree was this debate, which is a very constitutional and legal debate live in central and was there a strong division of views among the African American Community about whether the Constitution was or was not a pro slavery document.
Martha Jones: And here we look to the debates that unfold from the 1830s forward during what we refer to today as the colored Convention movement, this is an African American political culture that grows up in those years during which black Americans are largely excluded from the political parties, largely kept from the polls nonetheless black Americans come together locally at the State level and nationally, beginning in 1830 to deliberate the issues of the day, including this question right, what is the Constitution and who are we in relationship to it, so when Douglas as you described begins to and embraces the Constitution as an Anti-slavery document as an asset to black Americans he's very much now stepping into the mainstream of black thought, as exemplified by the debates in the color conventions.
And it's a critical turn because what those delegates know are two things, on the one hand, to just come back to a minute to the earlier discussion that states citizenship matters a great deal in the antebellum period, in fact, it is in the individual states where those things that today we return civil rights are being arbitrated, for example, voting rights holy in the hands of the individual states and so these are men who are deeply aware of the power, the value the worth of states citizenship consider, for example, men in New York and Pennsylvania black men in New York and Pennsylvania who vote and then are disenfranchised and their retort is that we are citizens of the state and that indeed makes us unequivocally eligible to vote, but it is also true that black Americans in the years leading up to Dred Scott are looking for a bulwark a Defense a way to resist one of the most popular political movements of the antebellum period, and that is the colonization movement. A movement that mobilizes political will, resources and then uses that to materially remove black Americans from the United States to colonies like Liberia.
Black Americans are looking for a bulwark men like Douglas looking for a bulwark against the increasing threat of colonization including forced colonization.
And these arguments, this view of the Constitution as a bulwark as an ally is as in a document of last resort for black Americans is nearly unavoidable in this period for black Americans, even those who are no longer enslaved but understand that the spirit of colonization runs high in many places, and that they remain at risk, in a sense, as had Native Americans for being removed against their will, citizenship, they hope will resist that.
Jeffrey Rosen: Thank you for that. Although he cited Franklin Hamilton and Gouvernour Morris, among the most noted anti-slavery men of their time he was also centrally influenced, as you argue by Washington and Jefferson and other slave holders. How did Lincoln grapple with the fact that Washington and Jefferson other founders held slaves in channeling their lessons in the emancipation proclamation?
Lucas Morel: That's an excellent question is the question I get every year, when I teach American Government when they teach racing equality when I teach my seminar and Lincoln statesmanship. And to speak to professor Jones who politely did not mention that Lincoln for the longest time was a pro colonization is he thought it would be the word used at the time was deportation his was voluntary.
But that said there were people who were not interested in voluntary they just wanted to get rid of black people Lincoln fairly early, though, I think, even though he publicly supported it as early as. He publicly said, if you will, shipping black people to Liberia is a fool's errand that would never work in so if he's kind of at odds with himself in terms of what he himself believes that black people are owed, as well as at odds with the majority of the population in the free state of Illinois which is racist. Illinois was like competing with Indiana another free state to see who was more racist right Illinois you can serve in the militia if you're a black person, a jury if a white person was a defendant.
You were, you had, of course, no voting rights, very few civil rights and in the 1850s they passed a law banning the immigration of black people into Illinois now, there were less than there were maybe five 6000 black people in the entire state of Illinois but they didn't want one more. That's the environment in which Lincoln is trying to move his neighbors and his fellow countrymen in the direction of bringing to its fruition the promise the full promise. What Professor Jones mentioned is the ceiling, like the max aspiration of the declaration of independence, and so what did Lincoln do he had to do this rhetorically, in other words.
There was no point in advocating for something that you could not get majority, if you will, white support or white backing for an abolitionist had no way of shifting the needle nationally in Lincoln’s opinion in that pivotal decade of the 1850s. So if politics is the art of the possible what did Lincoln do with slave holder Washington What did he do with slave holder Madison slave holder Jefferson. He devoted he directed the nation's gaze their public attention to the public actions.
Of the most iconic fixture figures of our nation's past and what he pointed to was what they put in writing as Ralph Ellison the wonderful author of invisible man kept reminding us is that those sacred documents, the declaration, the Constitution, the Bill of Rights those belong to black people as much as jazz and the blues belong to jazz people, and so the fact that those white slave holders put in writing. Not what was written in the confederate constitution, which made it clear that white supremacy was the systemic rule for those states and that attempt at forming a new nation rather what they put in writing, usually not always. What they put in writing was an appeal to the laws of nature and nature's God what they put in writing was equality, human equality what they put in writing was consent of the governed, no racial qualifications in those statements and so black people said where do we sign, right?
King saw this, Lincoln saw this, all the great- Frederick Douglass eventually saw this- all of the great heroes, I believe, of the long civil rights movement that is our American history have seized, not just on the ideals of the declaration, but also the actions of a Washington and Jefferson that made it possible for a lot of racist people to move in the direction of a way of looking at each other as fellow human beings and therewith as fellow citizens and therefore Frederick Douglass, for example, and his greatest speech what to the slave is the fourth of July. He is studiously silent about the founders being slaveholders but he mentioned Washington one time to say what that he couldn't go to his deathbed without freeing his slaves right he doesn't mention that Washington was for so long and slave holder, but rather the emancipator the emancipation act of the founding fathers and so with Washington as well with Jefferson, Lincoln tells the nation, the most important things they need to know to take their political bearings and what was that.
That they banned slavery, as soon as they could under the United States Constitution, it was a slave holding President Thomas Jefferson who in March of 1807 passed the bill that would take effect January 1, banning the importation of slaves well if you took care of slavery supply What do you do about its expansion, the only territory held by the American people at large, was the Northwest territory, so the articles of confederation Congress in 1787 Article six of the Northwest ordinance bands slavery explicitly in that territory.
And the new Congress under the new constitution of 1787 ratified the following year that first Congress ban re ups or renews that ban in the Northwest territory of slavery in 1820 Lincoln reminds us that in our history Congress equated slave importation into the United States with piracy and, as far as I know, the only punishment for piracy is, as they say hanging by the neck until dead, the only President to have anyone executed for violating those laws with regards to the importation of slaves. I’ll give you three guesses: Abraham Lincoln.
Jeffrey Rosen: wow so powerful to remind us that Lincoln emphasized what the founders publicly wrote in general, rather than their private actions and that was central in his channeling of the legacy of the founders Martha Jones the founders had very different legacies on slavery and as Professor Akhil Amar argues in his new book the words that made us Washington and Franklin grew on the question of slavery, whereas Madison and Jefferson did not and became more attached to the institution. What is the relevance of that in how we should think about the legacy of Madison Jefferson versus Washington and Franklin and, more broadly, about the relationship between the founders and Juneteenth?
Martha Jones: Well, here I want to come back for a moment to the color Convention movement because It would be a mistake for us to leave listeners with the impression that black Americans are untroubled or even have one mind about indeed how to think about. The founders their legacy their record with respect to both the declaration and the Constitution, and there are those among black activists to caution black Americans who.
To blindly perhaps to uncritically look to embrace those documents to embrace those legacies because what they say is.
If we indeed become citizens if we assume right the privileges, the rights of citizens, we also assume the liabilities of this nation right and then already by 1830 and certainly by 1850 black Americans recognize right the tragic dimensions Of the national legacy, including, for example, the removal of native Americans, the vivid tragedy of the trail of tears black Americans have been witness to this, and they are reluctant to easily or blindly assume the full responsibilities of citizenship, so I think that the records of these Early founders, but the record, more generally, of the United States is something that black Americans take very seriously, and that will not end with the civil war, it will not end with emancipation, it will not end with June teeth that black Americans again and again across the 19th and into the 20th century will ask profound questions and express true ambivalence about what it means to be a full citizen of a nation to carry the liabilities of a nation that will, by the end of the century, be engaged in imperialism and racism across the globe, this is a touchstone for black Americans and this example from the early period is just that an early example.
Jeffrey Rosen: Thank you so much for that. Lucas Morel, we've worked our way from the founding to the emancipation proclamation now take us with our new rich knowledge. into Lincoln’s mind is issuing the emancipation proclamation on the one hand you've told us he's channeling the highest ideals of the.
Declaration and the original Constitution on the other, he's drafting a profoundly legalistic document which is limited only to the areas in which he believes that he has.
Power as executive of the United States, so what is Lincoln trying to achieve in the American emancipation proclamation and why is it limited in the ways that it is.
Lucas Morel: Yeah I mean that's a huge question I’ll try to give a try the answer he's trying to accomplish a number of things, fundamentally, is he makes most explicit pretty much every time he can talk about it, but most famously in his letter to Horace Greeley when he's already drafted an emancipation proclamation but hasn't made that public to anyone, but his cabinet, probably the greatest secret in Washington DC history that didn't get leaked was Lincoln’s draft of an emancipation proclamation to Horace Greeley whom he met when he was a Congressman back in the late 1840s. He said that he's fighting this war to preserve Union paramount my paramount objective and it's not to free slaves or to keep them in slavery right, so what is he trying to do is trying to win the war and so publicly he has to do, and the way I have come to formulate this is he has to find a constitutional reason to do as we say today the right thing, so he takes a humanitarian end - emancipated three to four well what ultimately will be three or 4 million black Americans, he has to take a humanitarian end. But as constitutional President of the United States, he turns it into a constitutional means in order to do so legitimately. In other words, he was trying to teach the country over and over again what this war is about is a constitutional way of life it's not just what we do but how we do it, that is all important and that involves the rule of law, he can't as President simply do whatever he wants he has to do, only those things he has he has been vested power, executive power as Article II puts it by the American people he can only do what they have granted him authority to do and now it's a time of war he could not do this on march 4th 1861 we were at peace, more or less in March it wasn't until the firing on Fort Sumter that link and finally calls forth the militia. And then calls Congress back into session on July 4, and so what Lincoln is doing in the emancipation proclamation it's the culmination of an attempt to keep the so called as Professor Jones mentioned earlier the so-called border slave states in the Union right Kentucky did not succeed Maryland did not succeed Delaware did not succeed Missouri did not succeed now. Missouri my goodness there's a civil war within the civil war in Missouri but Lincoln is doing all he can to keep the Union together so he has to emancipate in a way, where he won't antagonize those who are already fighting for something that's clearly constitutional in their mind, which is preserving the Union.
Okay, so it is a supreme act, in my opinion of political proves prudence, what I would I deem statesmanship like it isn't just a good politician, he is a great one, not just in terms of what he manages to do, but how he Marshall’s consent, on behalf of the noblest ideals of the Union and so emancipation isn't simply a what he would call later the central act of my administration it isn't something that's just so world historically awesome right Samuel chase - was it Chase or Seward?- who had to remind Lincoln in his very legally worded emancipation proclamation you know what you ought to say something about how cool this is that what you're doing and Lincoln does, but then he catches it with, but as a commander in chief in a time of war, actual rebellion, it keeps reminding the country I have authority to do this, I have authority to do this so it's the right thing, yes. But it is for the right reason, as I understand my authority as executive of the United States, so it is a combination of things that only the most prudent and high minded person, I think could have not just declared, but then marshaled an army and navy and sufficient white public support behind remember, there is a battle in the newspapers between lawyers who aren't confederates about the very legality, the very constitutionality of freeing slaves in rebel held territory, who do you think is a part of that.
Professor Jones mentioned judge McLean the less senior or the more junior justice was Benjamin Curtis and it was that opinion that was Lincoln’s favorite and it was huertas even though he dissented in Dred Scott, which turned out to be his swan song as a Supreme Court justice, it was Curtis who published a pamphlet about 80, 90 pages long called executive power, he wasn't praising Lincoln he was condemning him for trying civilians and military courts shutting down presses and for emancipation, so you got this new England statesman, Benjamin Curtis one of the two dissenters in the 1857 Dred Scott case, who is excoriating Lincoln in 1862/'63 for freeing slaves, something we see is just supremely obviously moral. Well Lincoln says it is supremely obviously moral, the question is, can I do it constitutionally? And thankfully the 13th amendment was ratified so that it could is link and put it wrap the whole thing up, it is a king's cure for the evil.
Jeffrey Rosen: Thank you so much for that well, it is time for closing thoughts on this wonderful discussion Martha first thoughts to you. Why do we celebrate Juneteenth, given the fact that it commemorates the issuing of the emancipation proclamation two and a half years after it was issued? And what should Americans commemorate and celebrate on Juneteenth?
Martha Jones: I think it's fair to say that, where we sit in 2021 as Juneteenth approaches, the nation is catching up with black Americans, which is to say if, as a collective as a nation as a whole Juneteenth has arrived on our radar and is increasingly being recognized by state legislatures by institutions like my own University, which is deemed Juneteenth to be a university holiday, for the first time in 2021. Black Americans have been marking this day for a very long time, and that is as true for January 1 and that anniversary. Black Americans have long gathered to mark that midnight hour when the emancipation proclamation took its formal legal effect until today watch night in many communities is an occasion that is celebrated. We know that black Americans have going back to the antebellum years marked August 1 West Indian Emancipation Day is it was called in Frederick Douglass time. Celebrating British abolition of slavery and then the debate over July 4 versus July 5. But how to mark the independence of the nation with that critical lens that Frederick Douglass so importantly brought to the occasion so it's to say that if we look to cry out across the national calendar, historically, we would recognize that black Americans have long honored these days, even if they did so without the full and robust consent of the nation as a whole, and they have honored many of the men and women who were responsible for breathing life into those occasions, despite extraordinary circumstances I must just add that black Americans understand both the power and the scope and the ambition of something like the emancipation proclamation and they understand how.
The Federal Government failed to account for to provide for to offer shelter to so many of now refugees black refugees from the American South who are going to fill beyond capacity every facility in Virginia and in the district of Columbia.
In those years between 1863 and 1865 that this is a celebration born out of struggle and oftentimes in the face of too much indifference by the nation as a whole, so part of what's remarkable perhaps about 2021 for me is that we are watching as the rest of the country catches up to black Americans.
Jeffrey Rosen: Many thanks for that. Lucas last words in this superb discussion are to you: why do we celebrate Juneteenth and what should Americans commemorate and celebrate on Juneteenth?
Lucas Morel: Thank you, Professor Jones actually stole my clothing line which was that Juneteenth really is or it seems like it has come to be the culmination of a debate that blacks have been carrying out amongst themselves and with white neighbors presumably but especially amongst themselves about how to deal with emancipation and abolition. She mentioned ambivalence so great word to describe their own decision to say you know what we mark our liberation.
In the law in the Constitution as a monumental event but with some trepidation because we're at to do so has to involve reminding ourselves and the nation at large that we want to treated people, the worst way you could treat them, and that is to say, as the mere beasts of the field.
And so blacks had debated within themselves well, should we celebrate something where we have to remind what had happened to most of us, not all of us, but most of us on American soil, and so the debate was is it September 22 when we can issue this preliminary emancipation.
Is it January 1 when it finally came through when lightning struck right the Telegraph where they got the word and it didn't Come on, you know, right after midnight and came near noon, or one when Lincoln finally was done shaking hands, do we mark it on June 19 and what I like about June 19. I don't think it should replace July 4 I don't think it should be equal to July 4. But for the emancipation proclamation there would, of course, be no Juneteenth but what why I call it a distinctly American holiday is precisely because marking liberation two and a half years, if you will, after the fact, is so American write it in such a way for us to be at least somewhat critical somewhat Half a step removed to that great achievement of Lincoln’s and the countries, but also to remind ourselves wow, this is a work that isn't done by one man it's not even done by government, it is a work that involves, if you will, we, the people that involves all of the American people, and that means you have to get their consent.
And so the burden of continuing to remind ourselves of what the best of us is and persuading each other that this really is the best way to go, that will remain the task of every generation Juneteenth understood through the lens of July 4 is a great way to do that.
Jeffrey Rosen: Bravo… phenomenal… thank you very, very much.
Martha Jones: Thanks everybody.
Jeffrey Rosen: Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Anna Salvatore, Mac Taylor, Jackie McDermott, and Lana Ulrich.
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