This week, we’re sharing a constitutional conversation from our archives. Leading legal scholars and historians Allen Guelzo, Martha Jones, Kurt Lash, and Darrell A. H. Miller tell the story of the 14th Amendment and the “forgotten founders” who fought for it. Jeffrey Rosen moderates.
This conversation was part of a symposium celebrating the 150th anniversary of the 14th Amendment co-hosted with the NAACP Legal Defense and Educational Fund.
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PARTICIPANTS
Darrell A. H. Miller is Melvin G. Shimm Professor of Law and Associate Dean for Intellectual Life at Duke Law School. He writes and teaches in the areas of civil rights, constitutional law, civil procedure, state and local government law, and legal history. His scholarship on the Second and 13th Amendments has been published in leading law reviews and has been cited by the Supreme Court of the United States, the United States Courts of Appeals, the United States District Courts, and in congressional testimony and legal briefs. With Joseph Blocher, he’s the author of The Positive Second Amendment: Rights, Regulation, and the Future of Heller.
Kurt Lash is E. Claiborne Robins Distinguished Chair in Law and founder and director of the Richmond Program on the American Constitution at the University of Richmond School of Law. Professor Lash has published widely on the subjects of constitutional history, theory and law, including the books The Fourteenth Amendment and the Privileges or Immunities of American Citizenship, The Lost History of the Ninth Amendment, and The American First Amendment in the Twenty-first Century: Cases and Materials (with William W. Van Alstyne).
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 a legal and cultural historian whose work examines how black Americans have shaped the story of American democracy. Professor Jones is the author of many works including the books Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All, Birthright Citizens: A History of Race and Rights in Antebellum America and All Bound Up Together: The Woman Question in African American Public Culture 1830-1900.
Allen Guelzo is Director of the James Madison Program Initiative on Politics and Statesmanship and Senior Research Scholar in the Council of the Humanities at Princeton University. Previously, he was the Director of Civil War Era Studies and the Henry R. Luce Professor of the Civil War Era at Gettysburg College in Gettysburg, Pennsylvania. Among his many publications, he is the author of Abraham Lincoln: Redeemer President, Lincoln’s Emancipation Proclamation: The End of Slavery in America, Lincoln and Douglas: The Debates That Defined America, Redeeming the Great Emancipator, and Reconstruction: A Concise History.
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
- The National Constitution Center’s 14th Amendment Classroom Learning Materials
This episode was produced by Jackie McDermott, Tanaya Tauber, and Lana Ulrich. It was engineered by Greg Scheckler.
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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.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. This week we're sharing a constitutional conversation from our archives. Leading legal scholars and historians Allen Guelzo, Martha Jones, Kurt Lash, and Darrell A.H. Miller told the story of the 14th amendment and the forgotten founders who fought for it. Jeffrey Rosen moderates the conversation. Here's Jeff.
Jeff Rosen: [00:00:28] I'm going to begin this very important panel by reading the text of the 14th amendment. And there are lots of places where you can get it. But one of the best is the Constitution Center's Interactive Constitution, which has the leading scholars in America writing about what they agree and disagree about every clause of the constitution that has done a lot.
Ladies and gentlemen, I'm so excited. We've been waiting for Akhil Amar and John Harrison to turn in their homework for the citizenship clause and the privileges or immunities clause. But Akhil just sent in his explainer this morning, in honor of the hundred and 50th anniversary of the 14th. It'll be online later this week, I hope, but you can check it out then. So, I'm going to read section one and then we're just going to discuss its clauses and their history and original understanding.
All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. That's called the citizenship clause. No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. That's the privileges or immunities clause. Nor shall any state deprive any person of life, Liberty, or property without due process of law. That's the due process clause. Nor denied to any person within its jurisdiction, the equal protection of the laws. That's the equal protection clause. Now entire law school seminars and courses are taught over each of these clauses and each word, and there's so much to learn and unpack, but we want as intensely and meaningfully as possible to understand what the framers were trying to achieve with these clauses. And Allen, I'm going to begin with you. And I'm going to ask you about the citizenship clause. And if you, I think I'm going to leave it up to you. If you want to give a global, brief description of what the entire section one was trying to achieve, or if you want to start with citizenship that would be it.
Allen Guelzo: [00:02:23] Well, citizenship is an unusual subject because the Constitution actually does not, in its original form, give us a definition of what citizenship is. There are five references to citizenship in the Constitution, and some of them refer to citizens of the states, some of them referred to citizens of the United States, but the two categories are not distinguished. They're not even defined. And for that reason, there's a cloying lack of clarity about this in the early decades of the history of the Republic. It comes to a point though, with the Dred Scott decision of 1857, because in that decision, Chief Justice Taney takes the bolt between the teeth and decides that he is going to define citizenship, or at least what he's going to do is define who can't be a citizen and clearly and unambiguously for him, you cannot be a citizen if you are a black human being. Not just a slave, not just a free-- no. If you are a member of that race, if you are that color, you cannot, under any circumstances, be a citizen. What he's doing is defining citizenship according to a standard that we call jus sanguinis. In other words, the law of blood. You have to be of a certain descent to enjoy citizenship.
What happens with the Civil War is a complete overturning of that. And to codify that overturning, and to put a new definition of citizenship in place, what the 14th amendment does, and especially in the hands of John Bingham, one of the architects, principal architect, of the 14th amendment is to redefine citizenship. It's to rebuke, it's to reply to Chief Justice Taney in Dred Scott. And to say, no, the basis of citizenship in the United States is you are born here. It is jus solis, the law of the place where you are born. So, if you are born in the United States, you are a citizen of the United States. That is a remarkable departure because for the first time, we are getting a definition of what citizenship is supposed to be and there it is in the 14th amendment. So the 14th amendment then acts to correct, first of all, the oversight of the original drafts of the Constitution in not defining citizenship, but more directly, it speaks to a correction of Roger Taney in Dred Scott. And it lays out for us what citizenship in the United States is supposed to be, makes it clear that this is the paramount loyalty, which Americans have. You may be in Virginian. You may be a Minnesotan. You may be from New Jersey. You may be from Florida. But your primary identity is that of a United States citizen. And from that point through section one, we also learn what being a citizen of the United States entails.
But that's enough for me for the moment. That in enough, if the 14th amendment only did that one thing about citizenship, it would have completely moved the earth in terms of legal standing and in terms of what the civil war had accomplished.
Jeff Rosen: [00:05:45] What a beautiful and concise description of the purpose of the citizenship clause. You've told us that it was meant to repudiate the idea of citizenship based on blood, and to embrace an idea of birthright citizenship, and to overturn the Dred Scott decision, which embraced the blood rather than the birthright vision. Martha, in your new book about birthright citizenship, you explore precisely this question. What were the consequences of Taney's crab definition of citizenship based on blood for African-Americans before the civil war and how did the 14th amendment correct that notion by embracing the idea of birthright citizenship?
Martha Jones: [00:06:22] I think in order to fully understand the import and the consequence of the citizenship provision of the 14th amendment, we have to go back in part to where Sherrilyn Eiffel brought us in her opening remarks, which is to ordinary people. So here, former slaves who have been a part of the nation to an important degree since the American revolution have faced a question that is now an enormous one: who are they in relationship to the nation? Who are they in relationship to the Constitution? And when we look back to their activism, to their debates, what we learn is that since the 1820s, former slaves had been contemplating, debating, crafting an argument, an argument about their status as birthright citizens. They draw on that tiny language in the Constitution. You all will remember this. Right. The president must be a natural born citizen of the United States. And they seize on this and they say there is such a thing as a natural born citizen. And we are, right. The Constitution is silent about race. And we are natural born citizens. Why is this important for Black Americans?
Well, there's an important story that I'm sure we'll get to today about civil rights. And political rights, but what former slaves faced before the civil war is something else. And it is a threat of removal, of banishment, of exclusion from the United States. This comes in the form of what we call "black laws" that regulate, in a quotidian way, their lives. It comes in the form of colonization schemes, where private organizations command resources intended to encourage, sometimes quite forcefully, African-Americans to relocate to Liberia or to Canada or to the Caribbean. And so former slaves watch the example of Indian removal and they are concerned that they are going to be subject to the same sort of fate and they hope, they believe, they argue that birthright citizenship and that status is what will protect them. So we have, by the time we get to the moment of the 14th amendment, a sort of combination of really decades of activism, of argument, of contestations driven by the claims of Black Americans that now, their view of their status as birthright citizens is constitutionalized in 1868. And so it's a tremendous moment.
Jeff Rosen: [00:09:12] You so powerfully described, as you argue in your book, how the fear of deportation was so acute and how the current debates about deportation relate to the civil war era ones, where citizenship guarantees you the right not to be sent from America and to be guaranteed the basic rights of citizenship. Kurt, you can say more about the citizenship clause if you like, but you are also. America's leading scholar of the privileges or immunities clause, along with many of your colleagues here, and the privileges or immunities clause says no state shall deprive any citizen of the privileges or immunities of citizenship. So, begin to tell us what are those privileges or immunities of citizenship.
Kurt Lash: [00:09:55] They did, and the privileges or immunities clause is one of the most debated portions of section one. And I do want to talk about it, but before we get there, just a quick comment on the citizenship clause. Jeff began by reading portions of section one and all that he's given you is just that opening section. If he had read the entire 14th amendment to you, he'd still be going right now and we wouldn't be having this conversation. It's an extraordinarily long and complicated set of five provisions, and we're just starting on the opening sentence on citizenship and putting this five section amendment together was extraordinarily difficult. It was an amazing battle that occurred in the opening months of 1866 and the citizenship clause in fact was the very last edition, a last minute addition to section one, and it started not as a proposed constitutional amendment. The citizenship clause began as a statute. It's the opening language of the Civil Rights Act of 1866.
What happened is when the 39th Congress met, soon after the ratification of the 13th amendment, the members of the 39th Congress had something of a political emergency facing them that I know that Allen and others are gonna want to talk about, but to solve the emergency and the protection of rights in the South following the end of the civil war was going to take some type of legislative action. And they were actually divided over whether or not to do it by way of statute or do it by way of an amendment. The Senate began with proposing statutes, an extension of the Freedmen's Bureau bill and the Civil Rights Act--what became the Civil Rights Act of 1866. In the House they discussed amendments, and men like John Bingham got to work on protecting various individual rights and due process rights and equal protection rights. Everyone in both the House and the Senate was proposing multiple statutes, multiple amendments. There was chaos all the way until I think around April of 1866, they could not find agreement on how to approach Reconstruction or how to put together the proper language of Reconstruction.
And it wasn't until about April that they finally decided to bring all the ideas together into this five sectioned amendment. And the opening section was going to be written by John Bingham, who had started with ideas of privileges or immunities and due process and equal protection, but Representative Bingham did not have a citizenship clause in his proposal. He had certain concerns about protecting the bill of rights, so there's my answer to the privileges or immunities question, he very much wanted the Bill of Rights applied against the states for the first time. It had not been true since the time of the founding. But he was not part of the efforts that had crafted or supported the Civil Rights Act of 1866. So at the last minute, due to concerns that courts might decide Congress didn't have power to pass the civil rights act of 1866, including the citizenship clause, a suggestion was made to add an additional sentence to Bingham's amendment, just to make sure that this would not be overturned either by a new Congress or by the courts of law. So, this very first sentence was the last addition.
Jeff Rosen: [00:13:06] Fascinating. Darrell, Kurt just alluded to the emergency that gave rise to the amendment, including the black codes that denied African-Americans the right to make her enforce contracts, to sue and be sued, to inherit property and to take advantage of the basic civil rights of white people. And, as he mentioned, the Civil Rights Act of 1866, guaranteed to all citizens, black as well as white, the rights of basic civil rights. Tell us about the black codes and the Civil Rights Act of 1866. What was going on on the ground and how did the 14th amendment intend to ensure that the rights of the Civil Rights Act were constitutionalized?
Darrell Miller: [00:13:43] So the situation on the ground right after the civil war was pretty dire. There were reports by individuals like Carl Schurz who went down to investigate what was going on in the post, immediate post-war period how things were going and what he reported back was pretty grim, especially for the newly emancipated Freedmen. They were basically caught in a whipsaw between private discrimination and public discrimination. So, what would happen would be that there would be laws, for example, that would say that one was a vagrant and could be picked up and charged with a crime of vagrancy if one did not have a job or own property. And yet, the situation was that the whites who actually owned property or who could hire African-Americans would not do so, except on the terms that were created by either the black codes or the old slave system itself. For example, somebody might try to go off their plantation to work at another farm and somebody would say to the effect of who do you belong to? You can't work for me unless they say it's okay. Then freedmen with no job and property would be picked up by the local officials and charged with a crime. And then the 13th amendment has an interesting loophole, which essentially says that involuntary servitude is outlawed slavery, involuntary servitude are both outlawed, except as punishment for a crime.
So, having been picked up for having no job and having no property and duly convicted, then the freedmen would be sold at a sheriff sale as convict labor and a kind of vicious circle would emerge. And so, in part what the civil rights act of 1866 was designed to do was to break this sort of unholy Alliance between private discrimination and public discrimination and used the metric of the privileges, the powers, the rights that white citizens had as the metric for all citizens. And in fact said very expressly that freedmen should have the same rights as are enjoyed by white citizens to own property, to be able to contract, the idea to break up what was essentially a kind of cartel behavior on the part of private power brokers in the South. And then on sort of parallel tracks, there was anxiety about what the Civil Rights Act of 1866 did, both in terms of its substance and in its terms of describing citizenship and this gave rise to the need, among some members of the Congress, to work on an amendment that would make sure that this was not just a statutory guarantee, but could be insulated from, as Kurt has said, overturning by a court or a repeal by subsequent Congress.
Jeff Rosen: [00:16:41] Great. Not great, but well described --the opposite of great, but great that the privileges or immunities clause attempted to apply the Bill of Rights against the states. As Kurt said, before the 14th amendment was passed, the first amendment says Congress shall make no law. It doesn't say the state shall make no law. And therefore, the states were free in the antebellum period to deny free African-Americans the right to denounce slavery, to send their pamphlets through the mails, and to enjoy basic privileges or immunities. So as Kurt has argued so powerfully, one goal of John Bingham, the James Madison of Reconstruction, was to prevent the states as well as the federal government from abridging the basic liberties of the Bill of Rights.
Allen, there's a big controversy from much of the 20th century about what else the privileges or immunities clause covers. Some say that it's just an equality provision, and it says that whatever rights the states extend to white citizens have to also be extended to blacks. Others say that it includes certain substantive rights, not only the Bill of rights, but also those rights in the Civil Rights Act of 1866, like the rights of contract and property and so forth. What do you think that the privileges or immunities clause was intended to protect?
Allen Guelzo: [00:17:55] Well, at least as far as John Bingham has told us, we get some very contradictory readings. Bingham wanted to model the reference to privileges or immunities to the privileges and immunities clause that appears in article four of the Constitution. That in itself had been a source of legal controversy because the assumption had been that all that privileges and immunities was being described in the Comity Clause in article four, was simply just saying, well, if a certain person and moves from a state to another state, the state to which they have moved, cannot arbitrarily prevent them from enjoying the same privileges that someone in that state, which they've moved enjoys. In other words, if I moved from Pennsylvania to New Jersey, the governor of New Jersey cannot say, I really don't like people from Pennsylvania. So, therefore, I am going to tax you at a higher rate than New Jersey citizens, or I'm going to prevent you from practicing certain professions in New Jersey, because you're just a Pennsylvanian. And you know, there are certain shops at the Jersey shore, which have made me feel that way.
But the understanding was that the Comity Clause was there to prevent that from happening, so that if you practice law in Pennsylvania, you can go to New Jersey and you can practice law there. If you have a profession that you practice at home, you can move to another state and practice it there. The states cannot deprive you of that. They can not create artificial burdens to prevent you from doing that, because that would be to interrupt the comity, right. And comity, of course, had been a major question in the creation of the Constitution itself. I mean, in a sense, the Constitution, if you go back to the Annapolis Convention, really begins with discussions about comity, about how do the states deal with each other? Do they tax each other, do they impose tariffs on each other? So, in one sense, what Bingham aimed to do was at first, at least, only to act as enforcing this notion of comity. But, as soon as he gets into it, the ground begins to shift. And he begins to want to talk about the enforcement of the Bill of Rights, in this case, by and large, the first eight amendments to the Constitution, so that he talks about something different from what the Comity Clause talks about.
When he says in the 14th amendment, the privileges or immunities of citizens of the United States, suddenly we're dealing with a different category. Now, what is that category? Well, Bingham believed that that category was the first eight amendments. Sometimes he will talk about it in even more diminished terms, as simply life, liberty, ownership of property. Over time, we have expanded that, we have included a number of substantive rights. We're still debating that. But at least as far as Bingham's original view of things, it tends to oscillate between, is he just talking about enforcing comity? Well, that is part of it. Or is he adding to that by saying citizens of the United States, well, that means first eight amendments to the Constitution, to the bill of rights, that states cannot abridge those. Certainly in Bingham's view, it doesn't go beyond that, but there will be later decisions and later controversies and a history which will generate a very different kind of jurisprudence.
Jeff Rosen: [00:21:34] That's very helpful to sketch out the difference between the equality vision of the Comity Clause and the incorporation of the Bill of Rights.
Allen Guelzo: [00:21:42] Can I, can I say one thing? I know this sounds like we got into the weeds really quickly with this and that it can sound like why didn't they just make this simple?
Jeff Rosen: [00:21:54] Yeah.
Allen Guelzo: [00:21:55] And there's a fundamental reason for that. And that is, there is no such thing as a reference book called Reconstruction for dummies. You know, they did not get to the Civil War, General Lee didn't walk off the porch at Appomattox, and everyone said, okay, now we know what to do. Let's put in, implement phase one of econstruction. At that point, it was like, what's a phase one of Reconstruction. There was no model for how to do Reconstruction. So there's a very large sense in which Reconstruction really look like improv, that no one knew, knew what to do next. And it's something like the little Dutch boy plugging the holes in the Dyke. Let's put a finger in that hole. Whoops. There's another hole. Let's put another finger. And they're trying to deal with situations as they arise. When Kurt was talking about all the things that are really packed into this 14th amendment, right, not just privileges and immunities, but talking about the Confederate war debt, about who is entitled to occupy certain offices, representation, what the 14th amendment is really doing is offering you a map of the controversies that had exploded in the year since the end of the Civil War.
And which people were trying to find a way to cope with. And the truth of the matter is that even after they're finished with the 14th amendment, plugging up at least four, five, maybe six or seven or eight of those important questions, suddenly they have to turn around and realize, Ooh, Ooh, we forgot to deal with a few other things. Hence the 15th amendment that will come further on down the pike. So bear in mind if a lot of this sounds like people aren't getting their ducks lined up, it's because there was no line. In fact, they didn't even know they were dealing with ducks. You know, Reconstruction is Terra incognita, and they are trying to work with these problems, Congress, in this case, particularly, trying to work through these problems as they're being brought to their attention and they just don't have templates. They don't have books of instructions easily at hand to guide them in what they should do next.
Jeff Rosen: [00:24:08] Well, one of the consequences of creating holes that had to be plugged was that the privileges or immunities clause was eviscerated by the Supreme Court. And as every law student knows, in the infamous slaughterhouse cases, the Supreme Court held that privileges or immunities were a narrow category of rights already protected by the existing Constitution, like the right to file suits and Admiralty on the high seas and so forth, basically reducing the clause to a nullity. Martha, what were the consequences of the eviseration of the 14th amendment in the slaughterhouse cases? And how did the other clauses of the 14th amendment come to take up a slot?
Martha Jones: [00:24:49] It's a great question because the first thing that comes to mind, right, is the slaughterhouse cases as really representing the moment of deep disappointment, right? Deep disappointment in the promise of the 14th amendment, the possibility that the Constitution, that the federal courts, that the federal government will serve as a guarantor, right, in an important sense of not only the rights of former slaves but the ongoing process of what is, answering the question, what is freedom, right? How is freedom embodied? Not only in a constitutional sense, but in a lived sense, every day. So we can sort of characterize this moment as a moment, a turning point, as a point of disappointment. I would say one of the things that happens for African-Americans is to return interestingly to struggles on a state and local level. Right. As increasingly the signs are, right, that the Supreme Court is not going to be a guarantor of rights, it's not going to be an ally in this long process of freedom.
And so the people I study are, I think not quite in the haphazard way that Allen suggested, but in a very deliberate way, always experimenting with the possibilities at the federal level and at the same time in state and local venues.
Allen Guelzo: [00:26:18] I'm talking about members of Congress.
Martha Jones: [00:26:20] Yes, absolutely. So it's to say, my folks, I think have a a strategy, right, rather than a scattershot approach. And they are going to be looking to allies in state and local courts, for example, they're going to be looking back to the texts of what are new state constitutions, they're going to be looking at that level for the possibility of, in a sense, actualizing what it is, the best promise of the 14th amendment.
Jeff Rosen: [00:26:50] Kurt, how big a deal was the slaughterhouse cases? Why did it come out the way it did? Did it reflect the changing politics of the time or was it a legitimate legal disagreement? And then tell us about how the Due Process clause of the 14th amendment did come to take up some of the slack that the slaughterhouse cases created.
Kurt Lash: [00:27:13] The slaughterhouse cases, I teach constitutional law at the University of Richmond school of law, and the slaughterhouse case takes up a major portion of that course, because it represents in many people's mind, a lost opportunity for the Court to enforce the 14th amendment against the states and protect a body of rights that men like John Bingham had hoped we're going to be now made applicable against the states, and my students are often surprised by the very issue. Because many of them come to my classes not knowing that the original Bill of Rights only bound the federal government. It was passed by the original Congress, drafted by the original Congress, and ratified very quickly after the original Constitution. And it only required the federal government not to establish religion. It only applied fifth amendment due process rights against the federal government. States remained free to determine for themselves how they're gonna approach criminal procedure or how they were going to protect freedom of speech or whether or not they're going to have slaves.
And it was during the period between the founding and the time of the Civil War, that this idea that certain critical subjects involving human freedom should be left to the states came under severe questioning. The evil of slavery became wrapped up more and more in in politics and drove discussions in politics that slavery was something that at least to the people of the North could not accept, particularly because it seemed to be against this fundamental idea of due process in the fifth amendment, that no person should be deprived of life, liberty, or property without due process of law, and whatever the culture at the time thought about blacks as citizens, they certainly couldn't deny that blacks were persons. And so the abolitionists began to create this rhetoric of freedom based upon one of the provisions in the Bill of Rights. And it drove an idea that that bill should not only represent something binding upon the federal government, it's something that all of us should be protected, from whether it was a state official who was depriving us life, liberty, or property or a federal official.
So there was a growing idea that these rights should be nationalized, should be being made applicable against the states. And certainly John Bingham had hoped that that would be an accomplishment through his demand in section one that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States. Nor shall any person be deprived of life, liberty, or property. But in slaughterhouse, the Court took an interpretation, it's a few years after the ratification of the 14th amendment, and the Court views the main provisions of section one in ways that scholars have criticized as unduly narrow, as not including certain economic rights, certain labor rights, and when it came to describing privileges or immunities, it was almost as if, almost as if he was saying that nothing had changed by the adoption of the 14th amendment, he didn't spell it out in that case. It was Cruickshank, a few years down the road, that just came right out and said, those Bill of Rights that you might've thought would be applied against the states are not privileges that will bind to state action. And so the privilege and immunities clause very shortly after its ratification disappeared from the stage, in terms of being one of our protected rights.
The semi-happy ending comes in the late 1800s and into the turn of the 20th century, when the Supreme Court begins to develop its idea of what counts as due process, the idea that certain liberties should not be denied no matter what kind of process has actually been provided. And the Court begins to develop a collection of due process rights, it's sometimes called substantive rights, whereby no matter what kind of process is provided, you still should not have your property taken without just compensation. And you should still be protected in your freedom of speech against state officials shutting down your assembly or shutting down your expression. And one by one, they begin to treat due process liberties as if they have incorporated rights originally listed in the Bill of Rights. And that in fact is the Court's approach to this day. John Bingham's original vision of applying Bill of Rights against the states is currently substantially the law. It just occurred by way of the due process clause and not by way of the privileges or immunities clause.
Jeff Rosen: [00:31:30] Wonderful. So just to review, everyone, this is very wonky, but really important. John Bingham had hoped to ensure that no state could abridge the rights of the Bill of Rights. And he said that in the privileges or immunities clause, but the Supreme Court interpreted that clause in a way that reduced it to a nullity. And as a result, the Supreme Court, starting at the turn of the century, but not really culminating until the 1960s and seventies, it took almost a hundred years to make Bingham's vision a reality, use the Due Process clause of the 14th amendment to say there are certain basic liberties that can't be abridged by states, as well as the federal government. Darrell, let's return from this very technical law to the historical context. Why did the Court eviscerate the clause after the high watermark of Reconstruction? You know, what happened in 1876 to end the commitment to Reconstruction and describe what was happening on the ground in the 1870s and eighties to reduce the promise of Reconstruction to a nullity.
Darrell Miller: [00:32:28] So let me start in and I'll come full cirrcle on it because I disagree, I think, a little bit with what Allen said about there being no model. There was a model for what to do, but it's one that nobody wanted to really touch, which is the law of conquest. That is, from antiquity onward, the penalty for losing a war of rebellion was that all the leadership were executed or enslaved. In fact, the fact that many Africans had been caught in warfare was justified-- their slavery was justified as the law of conquest. And so there was a model, but it was just so, it was such a strong medicine and created such an intellectual problem with the nature of the Civil War, what were the states in rebellion? Were they no longer states, were they still states, but sort of misbehaving states? That as a matter of practice, it was not triggered. So there was a model, but it wasn't the one that the Reconstruction Congress felt very comfortable in using to its full extent. Now, how does that lead to what happens in the waning of Reconstruction?
Well, in my civil rights litigation course, which I teach, I often give my students this sort of set of particulars on the ground. You have millions of freedmen. They don't have a lot of education. You have a hostile Southern populace that resent the fact that there are many freedmen in their midst. And you also have eventually a kind of waning attention on the part of Northern advocates. And so I think it's fair to say that part of the sort of the reason why, for example, the privileges or immunities clause is sort of sapped of its power, part of it is legal, but part of it is an eventual sort of weariness with what to do about Reconstruction, when were things going to be back to normal? When are we all going to be just states again? When are we not going to have to worry about the freedmen anymore? And so I think, you know, from the 30,000 foot view, the reason why the cases end up eventually sapping the 14th amendment, at least in some respects, of its its power is sort of following the election results, as they say, with respect to interest in the Reconstruction project as a whole.
Jeff Rosen: [00:34:58] Let's take one round on the word that is the center of our symposium today, but we haven't focused on yet in this panel, and that is equal protection. Equality. And then we have some great questions from the audience. Allen, the 14th amendment says that no state shall deprive any person of the equal protection of the law. The core meaning of protection was that white mobs can't set on African-Americans and the police refuse to respond and they're denied physical protection. And yet, that mob violence was tolerated Congress forbade discrimination and quasi public accommodations in the Civil Rights Act of 1875, but the Supreme Court struck that down in the civil rights cases. So, give us a brief history of the rise and fall of constitutional equality, and why was the framers hopes on that course thwarted as well?
Allen Guelzo: [00:35:48] Equal protection will rise and fall almost in direct parallel with the rise and fall of the privileges or immunities because equal protection, first of all, it was going to get qualified by who is protecting whom, does the federal government have an obligation, does it have an opportunity to intervene in providing equal protection? Well, under what circumstances? One of the most dramatic circumstances involves a major race riot, which takes place in Colfax, Louisiana in 1873. And it was a case where a white mob set upon black electors at a courthouse and massacred them. I mean, there's no better word to use, you can't gentrify it in any other way. It was a massacre. When this finally comes up to the United States Supreme Court, it's the case we sometimes know as simply as Cruickshank versus U.S., Cruickshank having been one of the members of the mob, the United State Supreme Court backs off from this because its answer is two-fold. One is, it says, first of all, the Constitution and the intention of the 14th amendment is only to restrain the states.
Now, that was actually as a step in the right direction when that was originally conceived. However, in Cruickshank, the judgment that is made is that, well, this was a white mob. It wasn't the state of Louisiana. Since it wasn't the state of Louisiana organizing the white mob, therefore, there is no obligation on the part of the federal government to step in and provide anything that could be called equal protection. It sounds to us like they were in 1875 when this decision is finally handed down, it sounds like they're really parsing this in a very narrow, narrow, focused way. And in fact they were. But they were also doing this according to this notion of what level of obligation brings in the federal government. Well, if it was the state which had done this, all right, fine. But it wasn't the state. No one can show us that the state actually set this situation up. This was the spontaneous act of a white mob. Therefore, the federal government doesn't really have any role to play in dealing with this. In a way, you back off from that, you said, wait a minute, this was a mob action. There was a massacre. Somebody's got to do something about something here. But, the response of the Supreme Court was yes, but not us. Not us. It's not our obligation and not even the 14th amendment with equal protection obligates us, because the only thing we provide equal protection for is against actions done by the states and state governments themselves.
So, if the state of Louisiana had gotten up this massacre, Oh yes. Then perhaps in theory, the Supreme Court would have gone into full mode. But they can back off on this and say, well, you know, it's really not our problem because it wasn't organized by the state. And that becomes the basis for the Cruickshank decision and actually becomes the basis really for emptying the 14th amendment and the equal protection clause of a lot of its effective application. I mean, it's a horrible decision in a horrible case and it brings forth all the head shaking that we ought to have over good logical reasoning from bad premises to bad conclusions. If you start out with bad premises, you're going to have all the wonderful legal logic in the world, but it'll still give you bad results. That still doesn't mean it was respectable. We've spent a long time since Cruickshank trying to claw back from that.
Jeff Rosen: [00:39:44] Martha, I'm going to ask you what you make of Cruickshank, the civil rights cases, and the evisceration of the promise of the 14th amendment by the Supreme Court. Why did the Court parse the amendments as it did? Were they bad originalists or motivated by an animus to Reconstruction? And then I'm going to put on the table, this excellent question from the audience as well, what did the 14th amendment mean for those African-Americans who came here before it was ratified, but own land and other property, what happened to their property? What rights do they have?
Martha Jones: [00:40:15] Maybe I'll try that in reverse order. And say that the second question really picks up on the long story of the 14th amendment, which is that free black Americans have indeed been engaged in protecting, attempting to protect, their property and their persons by way of local courts for a very long time before we get to the 14th amendment. So there is an awareness, not only on the local level, in the lives of black Americans who were building families, homes, communities, churches, all of that requires many things, but it requires law, right. To do and to do well and to sustain. So we have that level. And at the same time we've had, over the course of 30 years, state high courts, which have really vacillated around the degree to which they are going to protect those civil rights for African Americans. So, it's a tremendous moment. It's a tremendous moment of possibility, right? When the 14th amendment is now going to constitutionalize, right, and has the possibility, the promise of now overseeing state legislatures, state courts and guaranteeing these kinds of rights that African-Americans have piecemeal, but in an important way, been securing for themselves over time.
I have to take us all the way if I could to Plessy versus Ferguson, because I don't think we can talk about equality without talking about Plessy and appreciating for--most of you will remember that Plessy is the case that leaves us with a dark legacy of the notion of separate but equal, examining the organization and the regulation of streetcars in the state of Louisiana and the city of New Orleans. This is a challenge that is brought by a next generation of African-American legal activists, now with a new set of tools and a new kind of access, a new kind of organization, still thinking hard about the Constitution and its promise. And the logic in Plessy, right, which says indeed, yes, black and white patrons on street cars must sit in separate sections, nothing unequal about that. Right? Because everyone gets to ride, and black and white patrons are treated in the same way because they're separated.
Well, for me, that lay that strained logic, right, tells us a lot about where we are with the Court by the time we get to the end of the 19th century. That there's no secret, right, there's no deep probing required to appreciate as Homer Plessy argues, right, that the separate requirement is intended to denigrate, to mark African-Americans as different, as inferior, as somehow not citizens equal to their white counterparts. This is not a secret logic or a mystery for a Supreme Court that nonetheless is prepared to twist that notion of equal and leave us with a legacy that we continue to grapple with. I think until today.
Jeff Rosen: [00:43:26] Thank you for putting Plessy on the table and describing it so powerfully. We're going to have some thoughts from Kurt and then Darrell and then wrap up. So Kurt, during his confirmation hearings, Justice Neil Gorsuch said that Plessy was wrong the day that it was decided as a matter of original understanding. Was it wrong the day that it was decided? And what do you make of the Court's evisceration of the promise of Reconstruction?
Kurt Lash: [00:43:50] Plessy and Cruickshank and these series of decisions that come down by the court that left blacks defenseless against private violence, not just against state violence, but against private violence, is the story of the great tragedy of failure, both political failure, both majoritarian failure, but also in judicial failure to invoke and enforce the protections of the 14th amendment. And that's why so many of the discussions of the history of the 13th, 14th, and 15th amendments are stories of tragedy, stories of failure. But before getting there, before getting there, notice what we're talking about. We're talking about a failure to enforce something. What is it that they failed to enforce? Well, there's an amendment back there, that somehow got passed, somehow got added to our Constitution, which declared principles that then were going to stand in judgment against later generations, including later generations of courts. And before we too quickly get to the story of tragedy, and there is a story of tragedy, I think there's also a story to celebrate, regarding why these principles were added to the Constitution in the first place.
And this also goes to your initial question of how did we get it and the meaning of the equal protection clause. We almost didn't get it. Once Congress drafted this complicated five section proposed amendment to the Constitution, nothing like it had ever been on the table before. The country erupted into political controversy over whether or not this was an appropriate restructuring of the American Constitution. And it was a reversal of the idea that you could best trust local politicians to take care of you. That's why the original Bill of Rights only bound the federal government. It was federalism. We trust people who we know, right. Well, after the experience with slavery and the experience with the suppression of rights of both whites and blacks in the South, we adopt these amendments where at least we put on the table this idea that maybe some of these rights aren't being protected by state officials. But it wasn't clear that the nation was going to buy it. In the months between June, when it's first sent to the States for ratification, for the first six or seven months, the Democrats raise a powerful argument that this is an unreasonable expansion of national power, that this is going to create a tyrannical Congress, who's going to try and take over all of local laws. They're going to be unaccountable. It'd be worse than King George the third.
But midway through the summer, something happens, which actually turns the country, particularly the North, in the direction of the 14th amendment and the equal protection clause. And it takes us back to the Louisiana again. A group of freedmen had gathered in New Orleans to discuss amending the state constitution, to give them the right to vote. That assembly was targeted by local mobs, local mobs under the direction of the mayor of New Orleans. They attacked the assembly, started shooting the members of the assembly and when they tried to surrender, they shot them dead anyway. It became a national scandal. There was probably no more reported event that occurred from summer to the end of 1866, than the riots of New Orleans. What happened at this point is that the Democrats who were fighting against the 14th amendment, including Andrew Johnson, the president of the United States, they had argued we didn't need a 14th amendment. You could trust state officials with your privileges or immunities. You could trust them to equally protect all persons in their lives and their property.
The Republicans simply pointed to New Orleans. And what had been an even bet as to whether or not Republicans were going to be elected in 1866, instead the country, in a landslide, reelected Republicans and defeated Democrats, voting and what actually became a referendum on the 14th amendment that in fact, we could no longer trust state officials with our most important rights, our most important privileges, our immunities, and the idea that we would be equally protected in our lives and property. That was the vision that the country decided to make a part of their constitution in 1866 and the Republicans got it done. It then becomes a judgment onto later generations as to whether or not we lived up to that initial vision. But there was a point when the country knew it, and the country embraced it, and made it a rock. That maybe it took too long to get to, but eventually courts did. And it was that rock of equal protection that the most important decisions of the Supreme Court of the 20th century are based.
Jeff Rosen: [00:48:30] Thank you for that. Darrel, the last word is to you and the question from the audience is about the role of African-Americans in Reconstruction. How does W.E.B Du Bios' scholarship in black Reconstruction standup today? How much do we owe to his research? And tell us about other African-American unsung heroes of Reconstruction who helped make the Reconstruction amendments a reality.
Darrell Miller: [00:48:54] That's a great question. So, I think it's fair to say that what happens in the Reconstruction period and afterwards, is that there is a revision of history, it's sometimes called the Dunning School of scholarship about the South, in which Reconstruction is portrayed as a wildly misguided mistake, that it was all kinds of unqualified individuals ruling the states and going to Congress. It was all kinds of graft and corruption. And that's all that can be said of Reconstruction. And in fact was a redemption. They were called redeemers. Were the southerners who ended up taking over in the South and redeeming it from this sort of corrupt period of time. And what Du Bois did was question that Dunning School of thought. Said, no, this is in an effort to portray a constituent of point in our past as something that is less, something that is a mistake, and we shouldn't accept it. It's taken generations for the Dunning School of scholarship about Reconstruction to finally be laid to rest and occasionally you'll see versions of it pop up. But in sort of trying to lay that school of scholarship about Reconstruction to bed the participation of African-Americans in their own power centers, in their own making constituative of the nation has really been an important part of that story.
Whether you're talking about some of the first lawyers, African-American lawyers, to ever attain the Bar, or you're talking about, you know, individuals who risked their lives to run for office and become the first African-American office holders and recapturing that story has been an important, and I think it's also important to realize, and this is one thing that I want to sort of leave you with, that there's a through line. It's a through line, not only from the 14th amendment. But a hundred years forward into what is sometimes known as the second Reconstruction, which is the civil rights era, the same type of arguments, that African-Americans are citizens, that they deserve protection, they deserve respect. The same kind of arguments that are made a hundred years before and are made on the steps of Washington and on the Edmund Pettus bridge 100 years later.
Jeff Rosen: [00:51:37] This has been a superb introduction to our important day of discussion. To keep on schedule, I'm going to ask you to stay in your seats and Sherilyn will come out in a moment to begin our next panel. Please join me in thanking our wonderful panelists.
Jackie McDermott: [00:52:02] This episode was produced by me, Jackie McDermott, along with Tayana Tauber and Lana Ulrich. It was engineered by Greg Scheckler. Please rate, review, and subscribe to Live at the National Constitution Center on Apple podcasts or follow us on Spotify and join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
