Constitution Day— the anniversary of the signing of the Constitution on September 17th, 1787—is next week! As we look forward to Constitution Day, this week’s episode shares founding stories of America’s founding documents from three key periods: the Declaration of Independence and the Revolution, the Founding era, and post-Civil War Reconstruction, sometimes referred to as the “second founding.” Renowned teachers of the Constitution, Dean Erwin Chemerinsky and professor Kurt Lash, tell the stories of:
- Thomas Paine’s Common Sense: the power of words and a single person to change the course of American history
- Thomas Jefferson, the Declaration of Independence, and how Jefferson’s words may have impacted abolition
- James Madison’s rejection of the Alien and Sedition Act of 1798 and how it may have influenced abolitionists' fight for the freedom of formerly enslaved people like Joshua Glover
- The creation of the Electoral College
- The story of the adoption of the 14th amendment from different perspectives
- The debate over whether the Constitution is pro or anti-slavery
- What unites us in how we understand the story of our Constitution
Tune into the NCC’s Constitution Day programming next Thursday! See the schedule here.
FULL PODCAST
PARTICIPANTS
Erwin Chemerinsky is the 13th Dean and Jesse H. Choper Distinguished Professor of Law at Berkeley Law School in California. Prior to his appointment as Dean, he served as the founding Dean and Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law. He is the author of twelve books, including: The Religion Clauses: The Case for Separating Church and State.
Kurt Lash is the E. Claiborne Distinguished Chair in Law and the founder and director of the Richmond Program on the American Constitution at the University of Richmond School of Law. He teaches courses in constitutional law and First Amendment law. He is the author of several books, including: The Reconstruction Amendments: Essential Documents, and The Fourteenth Amendment and the Privileges or Immunities of American Citizenship.
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
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Alexandra "Mac" Taylor, Lana Ulrich, and Nicholas Mosvick.
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TRANSCRIPTS
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of The National Constitution Center, and welcome to We the People, a 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.
Next week is Constitution Day, September 17th, and as we look forward to celebrating Constitution Day, I have the honor of having convened two renowned constitutional scholars, two great friends of The National Constitution Center, and have given them the following homework assignment and humble request. I've asked them to share their favorite stories about three crucial eras in our constitutional history, the Declaration of Independence, the founding era, and the Reconstruction era. And they're gonna tell their stories and react and we're going to see where they agree and where they disagree about the central stories of our constitutional history.
And now it's my pleasure to introduce them. Erwin Chemerinsky is the 13th Dean and Jesse H. Choper, a distinguished professor of law at Berkeley Law School in California. Previously he served as the founding dean and distinguished professor of law and Raymond Pryke Professor of First Amendment law at the University of California Irvine School of Law. He's the author of 12 books, including the recently published, The Religion Clauses: The Case for Separating Church and State. Erwin, it is wonderful to have you back on the show.
Erwin Chemerinsky: [00:01:29] It's wonderful to be with you. Thank you.
Rosen: [00:01:31] And Kurt Lash is the E. Claiborne Distinguished Chair in Law and founder and director of the Richmond Program on the American Constitution at the University of Richmond School of Law. He teaches constitutional law and the first amendment, and is the author of the forthcoming essential collection, The Reconstruction Amendments: Essential Documents. He generously shared some of those documents with the Constitution Center as we put together our new exhibit on the Civil War and reconstruction. Kurt, it is wonderful to see you again and have you back with us.
Lash: [00:02:04] It's an honor to be here.
Rosen: [00:02:05] Well let's jump right in. Our first era is the revolutionary era, the time that the Declaration of Independence was drafted in 1776. And Erwin, I think we're gonna start with you, and you have chosen to tell the story of Thomas Paine and Common Sense. Tell us that story and tell us why you chose it.
Chemerinsky: [00:02:24] Thank you. I chose it 'cause I think it shows us how much one person can make a difference. Thomas Paine published the pamphlet Common Sense in 1776. What I find interesting is, he didn't come to the United States until 1774, so he'd been here just for two years, he published a panel of incredible influence. He published it in January of 1776, and by April there were 120,000 copies in circulation. When you account for the population of the time, I think you can say it was the biggest best-seller per capita in all of American history.
He made two arguments. First he talked about why there needed to be independence from England, why the United States needed to become a separate country. And second he said it should be a democratic republic. He argued for democracy. No replication of a monarchy or really any other form of government that existed. John Adams remarked, "Without the pen of Thomas Paine, the sword of George Washington would raised in vain."
I also find the life story of Thomas Paine so interesting. He lived in France in the 1790s, he was a big defender of the French Revolution, he attacked the conservative Edmund Burke, he was tried in absentia for seditious libel in England. He was actually imprisoned in France for sedition in 1793, and it was James Monroe, later president, who intervened to get his release.
So Jeff, I'll go back to your question, my initial answer to you. I think that without a Thomas Paine, the spark might not have been lit that led to the Revolutionary War that led to what became the United States. I think it shows the power of words and the power of a single person.
Rosen: [00:04:15] Thank you so much for that inspiring story. Kurt, first of all, what is your reaction to Erwin's story? Are you as inspired as he is by Thomas Paine? And do you agree with his estimation of Paine's importance? And then tell your story, which is how Thomas Jefferson's words in the Declaration of Independence influenced three of the most important anti-slavery documents in American history, the Declaration, the Northwest Ordinance, and the Thirteenth Amendment.
Lash: [00:04:39] I- I think that Erwin has told a wonderful story, and- and the influence, there's just absolutely no doubt of. And the power of words I think is the perfect way to start this particular discussion of the Constitution, because we're- we're talking about words, we're talking about the power of- of ideas and how ideas can light a fire. So I love the imagery that has been presented and I think it's absolutely accurate in terms of the impact that it had, um, at the time, the time of the founding, and it fits very well with what I'm gonna talk about in terms of a different set of words that lit a different kind of fire.
Rosen: [00:05:13] Wonderful. Well please, tell the story of those words and that fire.
Lash: [00:05:16] Well my- my story's about the Declaration of Independence, and about its author Thomas Jefferson. And generally when it comes to public commentary about Jefferson, the discussion often focuses on Jefferson's life and his moral failings as a slave owner, but I wanna talk about Jefferson's words and how those words actually played a key role in ending slavery.
Jefferson drafts the Declaration of Independence and the single most important paragraph of freedom in American history, "We hold these truths to be self-evident, that all men are created equal, that they're endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." Now, those words were radical in their time. They embraced every member of the human family. And- and Jefferson was right, the proposition was self-evident, but the idea had never been so stunningly declared as by the young Thomas Jefferson at the threshold of the American Revolution.
Now, in the decades that followed the revolution, the defenders of slavery minimized or sometimes outright rejected Jefferson's words, recognizing that they could not be reconciled with holding persons as property. In Dred Scott, for example, Chief Justice Roger Taney claimed that Jefferson's words shouldn't be taken seriously, and that from the country's beginning, Black men had no rights that white men need respect. But abolitionists knew that Taney had actually read the Constitution backwards. They insisted that Jefferson's words had been grafted into the American Constitution itself. The Fifth Amendment of the Bill of Rights declares that no person could be denied life, liberty, or property without receiving due process of law. And if that phrase sounds familiar, it's because life, liberty, and property were nothing less than a rewording of Jefferson's "life, liberty, and happiness." As abolitionist Charles Sumner declares, "The Fifth Amendment's due process clause was the legal enshrinement of Jefferson's self-evident truth." Blacks were undeniably persons, persons who had been wrongly denied the natural rights of every man.
Now, the new Republican party embraced Jefferson's declaration and the Fifth Amendment, and they called for the abolition of slavery in the territories. And when the country elected the Republican Abraham Lincoln in 1860, the southern states refused to accept defeat and they announced their secession from the Union and- and war came.
Now, as that war progressed, Lincoln found himself moving the country towards Jefferson's declaration. At Gettysburg, Lincoln echoed Jefferson's word and describe America as a country founded on a proposition that all men are created equal. In that same year, Lincoln issues the Emancipation Proclamation, freeing all slaves in rebel-held territory.
Now, the proclamation didn't permanently end slavery. That was gonna require an amendment. So in the early months of 1864, Congress debates the addition of a thirteenth amendment, one abolishing slavery forever, and Democrats denounced that attempt and they denounced the amendment as an unconstitutional amendment, actually insisting that the American people had ratified in the beginning an anti-Black, pro-slavery Constitution. But Republicans rejected that reading of the Constitution and they insisted that Jefferson's preamble in the Declaration of Independence represented the true foundation of the country in its government, and in fact, the language of the Thirteenth Amendment was taken from a founding document itself, the 1787 Northwest Ordinance, which banned slavery and involuntary servitude in the northwest territory.
To Republicans, the Thirteenth Amendment, therefore, was not a repudiation of the original founding, it was a fulfillment of principles that had been announced at the founding. And it just so happens that the language of the Northwest Ordinance came from the same pen and the same man who drafted the Declaration of Independence, Thomas Jefferson. Jefferson, it turns out, was the architect of three of the most important anti-slavery documents in American history, the Declaration of Independence, the 1787 Northwest Ordinance, and the Thirteenth Amendment to the American Constitution.
Rosen: [00:09:27] Thank you so much for that inspiring story. Erwin, what is your reaction to Kurt's powerful claim that the Declaration itself is an anti-slavery document and it helped inspire two other great anti-slavery documents, the Northwest Ordinance and the Thirteenth Amendment? And then after you've shared your reaction, please tell your founding era story, which has to do with creating the Electoral College at the Constitutional Convention.
Chemerinsky: [00:09:51] You're right, it is a very powerful story and Kurt presents it very persuasively, but I'm skeptical. I think from the very beginning in the United States, there were those who would want to abolish slavery and those who fiercely wanted to protect the institution of slavery. I don't believe that when Thomas Jefferson said eloquently, "All men are created equal," that he really meant to include slaves in that. After all, Thomas Jefferson himself was a slave owner.
And when you look at the United States Constitution, you see the provisions within it that protected the institution of slavery. For example, Kurt wants to talk about respect for the person, including slaves, but the Constitution article one treats slaves as three-fifths of persons. There was only one provision in the Constitution that couldn't be amended for 20 years. That was the part that said that Congress could not ban the importation of slaves.
Also, the Fugitive Slave Clause is a very important part of the document. Joseph Story in Prigg versus Pennsylvania said, "The Constitution wouldn't have been adopted without s-, provision that said that if a slave escapes to a free state, the slave had to be returned." Congress adopted the laws that Kurt mentions, but it also adopted the Fugitive Slave Act.
So I like the- the, I call it a romantic notion that Kurt presents, but I think it's too simplistic. I think there was a strong support for slavery from the very beginning, just as there were the strains of anti-slavery from the beginning.
Rosen: [00:11:26] Thank you for that. And now please tell We the People listeners why you've chosen as your founding era story, the story of the creation of the Electoral College.
Chemerinsky: [00:11:33] When I was asked to pick a story from the Constitutional Convention and the founding, what immediately came to mind is how we came to the Electoral College. After all, this is 2020, the election is on November 3rd. It used to be that people just assumed that whoever won the popular vote would become president, but we all know better. We all know that the election turns not on who wins the popular vote, but who wins in the Electoral College.
The United States is the only country in the world that considers itself a Democracy where the winner of the popular vote won't necessarily become the chief executor of the country. And we've had five times in American history, twice already in this century, where the loser of the popular vote became the president of the United States.
And so, I wanted to tell just a little bit about the story of how this came to be. As we all know, the Constitution workspace preceded by the Articles of Confederation. There was a president on the Articles of Confederation, but it was a very weak president. The individual served only one year as a term. Also, the individual had very little in the way of powers. The Constitution wanted to create a much stronger president. Article two enumerates the authority of the president. But then there was the question of how to choose this person.
One proposal that was floated was to let the governors of the state choose the president of the United States. Another was to let Congress choose the president, in essence a parliamentary system. Another was to have popular election of the president. But relatively late during the deliberations of Electoral College, the i- ... of the Constitutional Convention, the Electoral College was proposed. It quickly got acceptance by those who were at the Constitutional Convention. Um, Alexander Hamilton after the Constitutional Convention in Federalist No. 68 defended it by saying, "We really h-, need to have the elites choose the president, and that's what the Electoral College would allow to happen."
At the Constitutional Convention, Oliver Ellsworth said, "We should apportion delegates to it entirely on the basis of population. That would let the northern states have much more, the more popular states have much more influence than the less popular states." But that was opposed especially by those from the less popular states, and it was also opposed by those who came from states that had slavery. James Madison, who was from Virginia, and Hugh Williamson, who was from North Carolina, very much championed the idea that representation in the Electoral College should be based on the sum of the number of representatives that the state had in the House of Representatives and the number of senators.
The reason this mattered so much for slaves states, as I already alluded to, under article one of the Constitution, slaves were counted as three-fifths of a person in determining representation in the House of Representatives. So a slave state would get a benefit in the Electoral College from its slave population when it was added together, then, with the number of senators.
There is no doubt in my mind whatsoever that slavery played a key role in giving us the Electoral College. I think the Electoral College is a terrible way of choosing a president, but to change it would require a Constitutional amendment, and the states that benefit from it will never vote to ratify an amendment that'll abolish the Electoral College, so it seems here to stay.
Rosen: [00:15:12] Kurt, what is your reaction to Erwin's story about the Electoral College and his powerful claim that it was essentially a pro-slavery institution? And then after you've given us your reaction, tell us your founding era story, which has to do with James Madison, Joshua Glover, and the Federalist Constitution.
Lash: [00:15:31] The story of the Electoral College of course is a, is a mixed story of Federalism and the debates between the free states and the slave states. And I think Erwin has laid out, um, what went in to those debates, um, the, fairly- fairly accurately, although I think he might underplay the importance of Federalism and maybe overplay the degree that slavery was actually playing a role there.
The Three-Fifths Clause, of course, um, was a clause that allowed those states with slaves to claim their slaves for the purposes of representation up to three-fifths of a person. The opponents of slavery in the Constitutional Convention of course wanted slaves not to count as persons at all, um, due to the fact that they opposed any recognition of property in man. And of course the slave states didn't want their slaves to count as three-fifths of a person. They wanted their slaves to count as a full five-fifths of a person.
So the fact that you have this odd treatment, three-fifths, shows that there was a division within the Constitutional Convention regarding slavery itself. This wasn't a wholly pro-slavery convention and this wasn't a wholly abolitionist convention. This was a meeting of different states that had moved in different directions from the time of the founding. And of course the creation of Electoral College itself was fundamentally the creation of something that both took into consideration population, but also took into consideration the irreducible components of states in the American nation. And it's that issue of Federalism that I'll speak on in my story about the Constitution.
Rosen: [00:17:09] Thanks for that, and please do tell that story and how James Madison and Joshua Glover illustrate how American Federalism allows theories of liberty to blossom on a state level.
Lash: [00:17:21] Well, my story about the Constitution at the time of the founding involves those two men, James Madison and James Glover, you probably know of one. one helped draft the Constitution in 1787, the other escaped from slavery in 1854. And what joins these two men together is the unique Federalist structure of the American Constitution. I'll begin with Madison.
Madison helps draft the original Constitution, and in the Federalist Papers, Madison describes the new government as neither wholly national nor wholly local. It was a mixed government, um, one where federal powers were few and defined, and those reserved to the states were numerous and indefinite. And that arrangement of divided, government is what we call American Federalism. It reflects the founders' belief that liberty best flourishes when power's divided between the local and the national.
Now whether or not this Federalist mechanism could work was actually severely tested only a few years after ratification. In 1798, the national government passes the Sedition Act, which criminalized speech critical of the national government. James Madison was appalled by what he saw as a clear abuse of national power, and he drafted the 1798 Virginia Resolutions, which denounced the Sedition Act as a violation of American Federalism. The First Amendment in the Bill of Rights declares that Congress has no power over speech in press and the Tenth Amendment further declares that all such matters are reserved to the people in the states.
In the election of 1800, the country agreed with Madison that power over speech had been reserved to the states, that the Sedition Act was an abuse of power, and they swept the offending political party from every branch of the federal government. Madison's Federalist vision of a limited national government and independent states had prevailed.
So how does Joshua Glover fit into this picture? The Federalist structure of the original Constitution allowed both northern and southern states to go different ways in regard to slavery. Although the South maintained the colonial institution of slavery, the northern states immediately moved towards abolition, from the moment of revolution through the adoption of the Constitution. Abolitionist literature flourished in the North, along with an increasingly militant abolitionist movement. The South hated northern abolitionism and they demanded northern states suppress the inflammatory activities of the abolitionists. The North refused.
American Federalism secured the right of the people in the northern states to come to their own conclusions about freedom and chattel slavery, and it was the free north that extended its hand to Joshua Glover when he escaped from slavery in 1854 and fled to the free state of Wisconsin. When federal officials tried to arrest Joshua Glover as an escaped slave under the federal Fugitive Slave Act, a group of Wisconsin residents mobbed the jail and successfully demanded Glover's release. Wisconsin denounced the Fugitive Slave Act as no more constitutional than the old federal Sedition Act, and they quoted James Madison's Virginia Resolution in support of their resistance to what they called federal tyranny.
Glover quickly made his way to freedom in Canada, and when federal officials arrested Sherman Booth for leading the mob that freed Joshua Glover, the Wisconsin courts ordered a writ of habeas corpus, and they freed Booth on the grounds that the Fugitive Slave Act was unconstitutional.
Now, Chief Justice Roger B. Taney was outraged by Wisconsin's defiance. The Supreme Court in Prigg had already upheld the Fugitive Slave Act, and Taney attempted to reverse the decision of the Wisconsin courts. Wisconsin ignored Taney, as well as the Supreme Court's decision enablement against Booth. Instead, Wisconsin's commitment to abolition helped fuel the rise of a brand new political party, the Republican Party, and the eventual enshrinement of abolitionist theory into the text of the American Constitution. And when the country ratified the Thirteenth and Fourteenth Amendment, they did so following the same Federalist method drafted by James Madison in 1787, article five's process of requiring the assent of three-quarters of the independent states.
The story of Virginia's resistance to the Sedition Act and Wisconsin's resistance to the Fugitive Slave Act are examples of how American Federalism preserves the opportunity for local dissent and the mobilization of dissenting opinions. The national government cannot suppress organized political dissent in the states. Federalism preserves that debate and it presents an opportunity for the country to respond, and in some cases, even engage in a new birth of freedom.
Rosen: [00:22:06] Erwin, what is your reaction to Kurt's powerful claim that American Federalism secured the right of the people of Virginia to challenge the federal Sedition Act and the people of Wisconsin to challenge the federal Fugitive Slave Act? And then tell your final story, which has to do with reconstruction and the adoption of the Fourteenth Amendment.
Chemerinsky: [00:22:26] I again think Kurt tells the story very powerfully and very well. Let me talk about each of the points that he makes. First, I'm so glad that he focused on the Alien and Sedition Act of 1798. I think it's one of the embarrassments in American history. After all, many of the people who were in Congress that ratified the, passed the Alien and Sedition Act also were in the same Congress that ratified the First Amendment. Many of them had been at the State Constitutional Conventions, and yet they adopted this law that seemed so antithetical to everything we believe about free speech.
It says to us many things. First probably that there was a much more minimal conception of what free speech was about in 1798 than today. I think there's reason to believe that they thought that what freedom of speech was about was a freedom from prior restraints, a freedom from having the government issue injunctions or to stop speech before it occurs, not protection from punishment after the fact. It may also remind us that those who are in power don't like to be criticized. That was true in 1798 and it's true today. And so they passed this law that says it's a federal crime to falsely criticize those in government, or those holding positions in the federal government.
Um, in terms of the latter story, it is, as you say Jeff, such a powerful story about how states can advance freedom and how Wisconsin did. But I also think we've gotta remember that through most of American history, when we speak of states' rights, we're not talking about states advancing freedom. After all, in the early 19th century what states' rights were about were the operative people like John Calhoun to say that the states could interpose their sovereignty between the federal government and the states so as to keep the federal government from abolishing slavery. In the 1950s and the 1960s, states' rights were all about the ability of states to block desegregation and to preserve segregation not by defending it, but by claiming it was the right of states to do so.
In fact, I would argue over the course of American history, states' rights have been much more regressive with regard to rights and equality than progressive with regard to rights and equality. It was states' rights that was used to oppose reconstruction. It was states' rights that the Supreme Court used in the Lochner to strike down progressive legislation for 40 years. It was states' rights that was used to oppose the New Deal. It was states' rights that was used to oppose desegregation. So yes, states' rights can be progressive, but often it hasn't been that way.
Rosen: [00:25:05] Many thanks for that. For your final story, I- I think you're both gonna tell the story of the adoption of the Fourteenth Amendment, and I can't wait to hear the similarities and differences in the way you tell it. So Erwin, what do you wanna tell We the People listeners about the story of the adoption of the Fourteenth Amendment?
Chemerinsky: [00:25:21] As Kurt pointed out earlier, the Emancipation Proclamation wasn't sufficient to end slavery. Abraham Lincoln knew that it was essential there be an amendment to the Constitution to amend slavery, and he wanted a task before the end of the Civil War, and it came to be the Thirteenth Amendment. But quickly after the Civil War, southern states did everything imaginable to take rights away, to prevent any rights from being granted, to disenfranchise the former slaves and Blacks more generally. It was clear that a Fourteenth Amendment was necessary. And the Fourteenth Amendment, I would say, has been the most important provision of the Constitution over, say, the last 75 years. It is the Fourteenth Amendment that applies the Bill of Rights to the states. It's the Fourteenth Amendment that contains the equal protection clause.
The Congress that ratified the Fourteenth Amendment did not have southerners within it, and so it's interesting that the Congress that passed this was just that of the northern states, which automatically should cause us to wonder whether it's legitimate. But quickly some of the southern states decided to reject this amendment. Congress then passed the Reconstruction Act. Section three of the Reconstruction Act said that none of the rebel states could be added back to the Union, could have representation in Congress, until they ratified this fourteenth article of amendment to the Constitution.
Andrew Johnson, who was at that time facing impeachment, vetoed the Reconstruction Act and it was adopted over his veto. Some southern states then ratified the Fourteenth Amendment, both preamble saying they were doing so under protest. Meanwhile, Ohio and New Jersey that had passed the Fourteenth Amendment rescinded their ratifications of the Fourteenth Amendment. Nonetheless, when it got to three-quarters of the states, the Secretary of State, Seward, said, "We've got three-quarters of the states. We deem the Fourteenth Amendment to be ratified." And so the Fourteenth Amendment came to be part of the Constitution.
Many question whether it was legitimately passed for the reasons that I described. In fact, as late as 1957 you had the state of Georgia, through its legislature, referring to the "so-called" Fourteenth and Fifteenth Amendments to the Constitution, but the Fourteenth and then the Fifteenth Amendments are parts of the Constitution. And maybe, Jeff, the lesson in this story is sometimes the ends justify the means.
Rosen: [00:27:53] Well, Kurt, you also are going to tell the story of the Fourteenth Amendment. You are going to emphasize I think the role of Thaddeus Stevens. But before you do, what is your reaction to Erwin's telling of the story? And do you agree with him that the ends justify the means?
Lash: [00:28:07] Did, in this particular case, I don't think we need to embrace that. I think the actual story of the adoption of the Reconstruction Amendments, in particular the Fourteenth Amendment, um, are grounded in the legitimacy of constitutional procedures, but Erwin's quite right to raise the issue. It's been debated for many years. Of course there's still a recalcitrant group, um, in the South who claim that the Reconstruction Amendments were never validly, um, th-, validly ratified. And there was such a drama, such an extraordinary struggle to get them ratified that it has produced this story, this question regarding legitimacy that continues to trouble scholars, scholars to this day.
So I think he's- he's quite right and he's fairly presented- presented the problem, but I think there may be more to the history that suggests its legitimacy than is sometimes realized, and part of that I'll address in my comments on reconstruction.
Rosen: [00:29:00] Well please address them and tell us the story, which you also tell so vividly in the primary documents that you've collected and you're about to publish. Tell us the story about Thaddeus Stevens and the effort to draft the Fourteenth Amendment.
Lash: [00:29:15] Of course. Now, Thaddeus Stevens of course was, from Pennsylvania, a representative in the House of Representatives, and he was a Republican member of the 39th Congress, the Congress that drafted the Fourteenth Amendment. That Congress, actually when it met in December 4, 1865, um, was [laughs] faced with an enormous problem, one that they had to solve, and it was a problem that had been caused by the ratification of the Thirteenth Amendment.
Now, as Erwin has reminded us, under the original Constitution, slaves counted as three-fifths of a person for the purposes of representation. This gave the slave-holding states a small bonus in the House of Representatives and in the Electoral College. But now that the Thirteenth Amendment had abolished slavery, four million former slaves would now count as a full five-fifths of a person, and that would give the returning southern states a dramatic increase, an increase in political power in the House of Representatives and in the Electoral College. In other words, by losing the war on the battlefield, the former rebel states might win the political war in Congress. The Republicans refused to let that happen.
Under the political leadership of men like Thaddeus Stevens, the Republicans decided to exclude the southern states from returning to Congress until they found a way to secure equal rights for the southern freedmen and prevent a rebel takeover of the national government. It wasn't easy. For the first several months of 1866, Republicans fought with each other over various proposed amendments and none of them received the two-thirds support necessary for passage.
Finally, in April 1866, Thaddeus Stevens proposed combining all of the proposed amendments into a single, five-sectioned Fourteenth Amendment, and members supporting one of those sections would have to support the entire proposal. The idea worked and Congress quickly adopted Stevens' proposed five-sections Fourteenth Amendment.
Section one of that amendment was drafted by Ohio representative John Bingham, and it would guarantee equal rights and it would invalidate the infamous Black Codes. Section two, advocated by Thaddeus Stevens, reduced congressional representation of any state that refused to give qualified freedmen the right to vote. That was the section that would solve the problem of the Thirteenth Amendment.
Passed in the summer of 1866, the amendment now needed to be ratified, and again, as Erwin has highlighted, this proved almost [laughs] impossible. Southern provisional governments refused to ratify the amendment, and at one point, Thaddeus Stevens himself despaired of getting the darn thing ratified and he proposed amend-, abandoning the amendment and simply passing legislation which authorized the national government to take control of the southern states.
Stevens had reason for wanting to act very quickly. He was dying. He could barely even walk at that moment without the help of a cane and his voice was so weak that members had to gather around his seat to hear what he was saying. It was altogether possible, in other words, that Stevens would never see the constitutional establishment of equal rights in the South, his lifelong dream.
John Bingham, however, had a plan. He convinced Congress to reject Stevens' national takeover of the South and instead pass, as Erwin has suggested, new Reconstruction Acts. These acts would organize new governments in the southern states and they would organize new votes on the proposed Fourteenth Amendment. This time, newly freed Blacks would be registered to vote, and they would have a voice in deciding whether or not to ratify the proposed amendment.
When Andrew Johnson tried to defeat the Reconstruction Acts by removing Secretary of War Edwin Stanton, the House immediately voted to impeach Johnson. Thaddeus Stevens insisted on having the honor of carrying the articles of impeachment to the Senate himself. Of course there was no way that Stevens could actually do this on his own at that point, and so it came to pass that two members of Congress brought the articles of impeachment to the Senate, Thaddeus Stevens supported by the strong arm of fellow Fourteenth Amendment draftsman John Bingham.
Johnson escaped impeachment by a single vote, but his political power was broken. The Reconstruction Acts went into operation, the southern states held new votes, and this time with the votes of southern freedmen, including the votes of the majority Black South Carolina legislature, the southern states gladly ratified the Fourteenth Amendment. And on July 14th, 1868, Alabama became the 28th state to ratify the Fourteenth, and on July 21st, Congress announced that the Fourteenth Amendment was now part of the American Constitution.
Three weeks later, Thaddeus Stevens died. The life of Thaddeus Stevens reminds us that the road to our constitutional freedom has not been easy. It's been full of political setbacks, personal despair, and outcomes that were never certain. But Stevens ran the race, even if he did it with a cane, and he had the satisfaction of seeing the amendment ratified by freedmen in the same state that had started the Civil War.
Rosen: [00:34:20] All right. Well this has been a really inspiring and cr-, illuminating exercise in asking you each to explore areas of agreement and disagreement about constitutional stories. In our final two rounds, I'd like each of you to identify where you perceive the agreement and disagreement to be. And just starting with the areas of disagreement, I certainly heard Kurt say Erwin underplays the role of Federalism and overplays the role of slavery. And Erwin, I- I heard you suggest that Kurt was overplaying the role of, Federalism and underplaying the role of slavery in several of your stories. Um, but as you listen to each other, and, um, Erwin, let's begin with you, where did you perceive the most significant areas of disagreement in your founding stories.
Chemerinsky: [00:35:04] I do think our agreements are much greater than our disagreements, but I think you've put your finger on it. I think that Kurt paints to rosy a picture with regard to slavery in the first part of American history. I'm skeptical that the Declaration of Independence can be seen as an anti-slave document. I also think that he paints too rosy a picture with regard to states' rights. There were certainly instances, like the ones he mentions, where states' rights had been advancing freedom, but overall I think over the course of American history, states' rights have been much more regressive when it comes to liberty and equality.
Rosen: [00:35:38] Thanks so much for that. And Kurt, where would you identify the areas of disagreement between you and Erwin in your stories.
Lash: [00:35:46] Well, I'd, I agree with Erwin that these are the key differences in how we organize our stories about, about the American Constitution. It's interesting, though, that our debate is a debate with very deep historical roots. The country was arguing over whether or not we had a pro or anti-slavery Constitution from the very first decades of the American Constitution. And Garrisonians, the abolitionists, Garrisonian abolitionists of course believed that we had a pro-slavery Constitution, and they burned it in public and claimed that it was a covenant of death in agreement, uh- with the D-, with the Devil.
You had a growing number of abolitionists, however, who broke with the- the Garrisonians, including Frederick Douglass. And Frederick Douglass addressed all of the clauses that Erwin cited as supposedly pro-slavery provisions in the Constitution, and Frederick Douglass insisted that all of them could be interpreted in ways that allowed, that allowed the Constitution to be read in a pro-freedom direction, particularly in the direction of mandating Congress to at the very least ban slavery in the territories.
And my story of Federalism, which I think also played out during that period of time, is that, if the country had gone in a wholly nationalist direction, it certainly would've entrenched slavery. We would've had a nationalist government that would've eradicated and suppressed abolitionist literature throughout the United States. They already did it in terms of cleansing, the United States mails.
And so I focus, I agree with Frederick Douglass, and I also believe that Federalism actually allowed for that opportunity for a pro-freedom reading to gain a political hold and eventually prevail.
Rosen: [00:37:32] And now it's time for our final rounds, and this is important because, Erwin and Kurt, I invited you to identify in the end areas of agreement, between both of you and the important, constitutional exclusive interpretation that you represent about the revolutionary era, the founding, and reconstruction. I heard much agreement between you, including the claim that the right to constitutional freedom has not been easy, that the spark was lit in 1776, and that the promise of the Declaration began to be fulfilled during reconstruction. But, Erwin, let's begin with you, what areas of agreement about the revolutionary era, the Constitution, and reconstruction can you leave for We the People listeners?
Chemerinsky: [00:38:20] This conversation is such a pleasure and I think what Kurt and I agree about is much greater than what we disagree about, and I would point to two things that emerged from our conversation. One is I think we both show that the United States has been deeply divided before and on very important issues. The issue of slavery divided the country from its first years, and it's continued to divide the country well through to the 1860s. In racial issues, it divided the country ever since, too.
And second, I think what emerges from our conversation is how important an individual can be. I chose Thomas Paine to start with. Kurt ended with Thaddeus Stevens. But we could talk about in other points as well, courageous individuals willing to speak up to light that spark are the ones who really made an enormous difference. And I think that's something we should all keep in mind on this Constitution Day.
Rosen: [00:39:15] Thank you so much for reminding us that the United States has been deeply divided before and how important an individual can be. It is moving to put our current vexations in historical context and I'm very grateful to you for doing that. Kurt, the last word in this really illuminating conversation is to you. Please identify areas of agreement between you and Erwin about the meaning of the revolution, the Constitution, and reconstruction.
Lash: [00:39:45] I'd, I simply could not have put it better than Erwin. Um, I'd completely agree with him in terms of our areas of agreement and how we focused, not only on individuals and on the difference that individuals have played, but also I'd, I really appreciated his use of the word courageous. From the- the courage of Thomas Paine moving from one country to another facing accusations of se- sedition, um, the struggle, between states, the s-, the struggle of the revolution, the struggle to form a Constitution, um, under conditions of enormous threat, from the rest, from the rest of the world, the struggle ...
Rem-, we, all of this kind of glossed over the Civil War, but there was a grand and bloody struggle over- over the fundamental nature of our Constitution in individuals who put their lives on the line, individuals who sacrificed everything, the full measure of their devotion, right, in the, in the language of Lincoln. And so I'd, I simply emphasize everything that Erwin has said. There are so many of these stories of the men and women who involve themselves in this great, in this great struggle, to establish our Constitution, and whose courage, um, deserves honoring and remembrance. So thank you, Erwin, for those words. I agree.
Rosen: [00:41:04] Thank you so much, Kurt, for reminding us of the crucial importance of the courage of individuals in defending ideals that people who disagree fiercely can ultimately embrace. Dear We the People friends, it is so meaningful to convene these constitutional conversations respectfully to explore areas of agreement and disagreement unflinchingly to acknowledge the disagreement, but ultimately to remind ourselves that something so important unites us, and that is the ideals of the Constitution of the United States. Happy Constitution Day to all. And Erwin Chemerinsky and Kurt Lash, thank you so much for a meaningful, moving, and illuminating conversation.
Lash: [00:41:50] Thank you, happy Constitution Day.
Chemerinsky: [00:41:52] Most definitely.
Rosen: [00:41:56] Today's show was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Mac Taylor, and welcome to the National Constitution Center, Mac, and by Lana Ulrich, our phenomenal head of content, and Nicholas Mosvick, our resident scholar.
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A very happy Constitution Day to all of you, and on behalf of the National Constitution Center, I'm Jeffrey Rosen.
